Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except: (i) Debt under the Loan Documents; (ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents; (iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt; (iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries, (A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding, (B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease, (C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and (D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04; (v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements; (vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; (vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and (viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 4 contracts
Sources: Term Loan Agreement (Hersha Hospitality Trust), Term Loan Agreement (Hersha Hospitality Trust), Credit Agreement (Hersha Hospitality Trust)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, exceptDebt other than:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iiiii) Debt in respect of Hedge Agreements incurred in the case ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party or to any Subsidiary of a other Loan Party, (B) Debt owed to any other non-Debtor Subsidiary by any Loan Party or and (C) Debt owed by any whollynon-owned Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Loan PartyInvestment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, in each case, such Debt (yx) shall be on terms acceptable to the extent that the Administrative Agent and (z) requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, which promissory notes (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall (unless payable be subject to subordination provisions in form and substance satisfactory to the Borrower) by their terms Administrative Agent to be subordinated contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Parties Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Loan DocumentsCollateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(Av) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed in the an aggregate principal amount equal to $10,000,000 2,500,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed consisting of guaranty Obligations in the aggregate at any time outstanding 10% ordinary course of Total Asset Value; andbusiness of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) unsecured Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the incurrence ordinary course of which would not result in a Default under Section 5.04.business;
Appears in 4 contracts
Sources: Senior Secured Debtor in Possession Credit Agreement (Accuride Corp), Convertible Notes Commitment Agreement (Accuride Corp), Restructuring Support Agreement (Accuride Corp)
Debt. CreateThe Note Parties will not, and will not permit any Restricted Subsidiary to, incur, create, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, exist any Debt, except:
(ia) Debt the Notes or other Obligations arising under the Loan Note Documents or any guaranty of or suretyship arrangement for the Notes or other Obligations arising under the Note Documents;
(iib) in the case Debt under Finance Leases and Purchase Money Debt not to exceed $500,000;
(c) Debt associated with bonds, guarantees, letters of any Loan Party credit or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided thatsurety obligations, in each case, such Debt (y) shall be on terms acceptable to the Administrative Agent and (z) shall be evidenced case required by promissory notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding Governmental Requirements or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates third parties incurred in the ordinary course of business and consistent business, in each case in connection with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any operation of the covenants contained Oil and Gas Properties and not in Section 5.04connection with money borrowed;
(vd) intercompany Debt between the Note Parties or between Restricted Subsidiaries to the extent permitted by Section 7.05(d); provided that such Debt is not held, assigned, transferred, negotiated or pledged to any Person other than the Note Parties, and, provided, further, that any such Debt owed by either the Issuer or a Guarantor shall be subordinated to the Obligations on terms set forth in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out AgreementsGuaranty Agreement;
(vie) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viif) recourse secured Debt, provided that Debt constituting a guarantee by any Note Party of any Debt incurred by another Note Party so long as the incurrence of such Debt by such other Note Party is otherwise permitted by this Section 7.02;
(Ag) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, Debt arising under (Bi) is not secured Swap Agreements permitted by any Lien on any Borrowing Base Asset, Section 7.13 and (Cii) shall not exceed customary bank products incurred in the aggregate at any time outstanding 10% ordinary course of Total Asset Valuebusiness of the Issuer; and
(viiih) other additional unsecured Debt (excluding any Debt set forth in clause (a) of the incurrence of which would definition thereof) in an aggregate outstanding principal amount not result in a Default to exceed $1,000,000; provided that no Indebtedness incurred, created, assumed or suffered to exist with respect to WhiteHawk – Equity Holdings, LP shall be permitted under this Section 5.047.02(h).
Appears in 3 contracts
Sources: Note Purchase Agreement (WhiteHawk Income Corp), Note Purchase Agreement (WhiteHawk Income Corp), Note Purchase Agreement (WhiteHawk Income Corp)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(iiy) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan PartyParty (other than an Excluded Subsidiary), provided that, in each case, such Debt (y1) shall be on terms acceptable to the Administrative Agent and (z2) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents, and (z) in the case of any Excluded Subsidiary, Debt owed to any other Excluded Subsidiary;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(ivii) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section 5.02(a)(iv5.02(a)(iii) not to exceed in the aggregate $10,000,000 7,500,000 at any time outstanding,
(BC) (1) Capitalized Leases (other than with respect to Real Property) not to exceed in the aggregate $10,000,000 25,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease Leases (other than with respect to Real Property) to which any Subsidiary of a Loan Party is a party, any Contingent Obligation Debt of such Loan Party of the type described in clause (i) of the definition of “Debt” guaranteeing the Obligations of such Subsidiary under such Capitalized LeaseLeases,
(CD) [intentionally omitted],
(E) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practicespractice,
(F) Unsecured Debt incurred in the ordinary course of business for borrowed money, maturing within one year from the date created, and aggregating, on a Consolidated basis, not more than $25,000,000 at any one time outstanding, and
(DG) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Unencumbered Assets, the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement;
(iii) In the case of the Parent Guarantor or any of its Subsidiaries:
(A) Debt under Customary Carve-Out Agreements,
(B) the Surviving Debt described on Schedule 4.01(o) hereto and any Refinancing Debt, extending, refunding, or refinancing such Surviving Debt, and
(C) Recourse Debt (whether secured or unsecured) in an amount not to exceed in the aggregate (1) 20% of Total Asset Value plus (2) the Facility amount; provided, however, that any recourse guaranties of Non-Recourse Debt (exclusive of Customary Carve-Out Agreements) otherwise permitted under this clause (C) shall not exceed in the aggregate 5% of Total Asset Value; provided further that during any period in which the Parent Guarantor shall maintain a Debt Rating of BBB-/Baa3 or better, then the Parent Guarantor and its Subsidiaries shall be permitted to incur Recourse Debt in any amount that would not result in a failure by the Borrower or the Parent Guarantor to comply with any of the financial covenants applicable to it contained in Section 5.04;
(viv) in the case of the Parent Guarantor and the BorrowerGuarantor, Debt consisting of Customary Carve-Out Agreements;under the Loan Documents; and
(viv) endorsements endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Digital Realty Trust, L.P.), Revolving Credit Agreement (Digital Realty Trust, L.P.), Revolving Credit Agreement (Digital Realty Trust, Inc.)
Debt. CreateNot, incur, assume or and not suffer to exist, or permit any of its Subsidiaries to Loan Party to, create, incur, assume or suffer to exist, exist any Debt, exceptexcept for the following Debt of the Borrower and/or Loan Party Subsidiaries:
(ia) Debt Obligations under this Agreement and the other Loan Documents;
(iib) Debt in respect of Capital Leases and purchase money Debt, in each case incurred for the case purpose of financing all or any part of the cost of acquiring, repair, construction or improvement of fixed or capital assets; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed $100,000;
(c) Debt of the Borrower to any Loan Party that is a Wholly-Owned Subsidiary of the Borrower or Debt of any Loan Party or any that is a Wholly-Owned Subsidiary of a Loan Party, Debt owed the Borrower to any other the Borrower or another Loan Party or any whollythat is a Wholly-owned Owned Subsidiary of any Loan Party, the Borrower; provided that, in each case, that all such Debt (y) shall be on terms acceptable to the Administrative Agent and (z) shall be evidenced by promissory notes a global intercompany demand note in form and substance satisfactory to the Administrative Agent, which promissory notes shall (unless payable Agent and pledged and delivered to the Borrower) by their terms Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of hereunder in a manner satisfactory to the Loan Parties under the Loan DocumentsAgent;
(iiid) the Surviving Debt described on Schedule 4.01(n) hereto in Section 7.1 of the Disclosure Letter as of the Closing Date, and any Permitted Refinancing Debt extending, refunding or refinancing such Surviving Debtthereof;
(ive) Contingent Obligations arising with respect to customary indemnification obligations in the case favor of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,purchasers in connection with dispositions permitted under Section 7.4;
(Af) Debt secured arising from the honoring by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary a bank or other financial institution of a Loan Party is a partycheck, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge draft or similar instrument drawn against fluctuations in interest rates or foreign exchange rates incurred insufficient funds in the ordinary course of business and consistent with prudent business practicesbusiness, and
provided that such Debt is extinguished within two (D2) Non-Recourse Debt (including, without limitation, Business Days of notice to the JV Pro Rata Share Borrower or the relevant Subsidiary of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04its incurrence;
(vg) Debt incurred in connection with the case financing of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions insurance premiums in the ordinary course of business;
(viih) recourse secured Debtguaranties by the Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of the Borrower or guaranties by any Subsidiary thereof of the Debt of the Borrower in each case so long as such Debt is otherwise permitted under Section 7.1(a) or (b);
(i) Debt under a Permitted AR Facility;
(j) Debt consisting of Hedging Obligations;
(k) unsecured Debt of the Borrower or any Subsidiary (i) that is convertible into Stock or Stock Equivalents and is validly subordinated by its terms to the payment of the Obligations on terms which shall provide that no payments of principal or interest may be made on such Debt prior to the Prepayment Date, (ii) that is validly subordinated by its terms to the payment of the Obligations on terms reasonably satisfactory to the Agent or (iii) in respect of earn-out, purchase price adjustment and similar obligations; provided that the aggregate principal amount of all such Debt under this clauses (Aii) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (Ciii) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would shall not result in a Default under Section 5.04exceed $10,000,000.
Appears in 3 contracts
Sources: Credit Agreement (Avinger Inc), Credit Agreement (Avinger Inc), Credit Agreement (PDL Biopharma, Inc.)
Debt. Create, 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 Borrower,
(A) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or commodity pricing, in each case incurred in the ordinary course of business and consistent with prudent business practice,
(B) Debt owed to a Loan Party; and
(C) Debt incurred by the Borrower (which may be guaranteed by the Guarantors) in connection with the issuance of unsecured senior notes (the “Permitted Senior Notes”); provided that (1) no Default or Event of Default shall have occurred and be continuing at the time of any such issuance or would be caused by such issuance, (2) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 5.04 after giving effect to the incurrence of such Debt and shall provide the Administrative Agent and Lenders with a pro forma compliance certificate evidencing such compliance at least 10 days (or such shorter period as may be agreed to by the Administrative Agent) in advance of any such Debt issuance, (3) such Debt shall rank no higher than pari passu with the Obligations, (4) the maturity of such Debt shall be at least six (6) months after the latest Termination Date, (5) the terms of such Debt may not restrict, limit or otherwise encumber the ability of the Borrower or any Subsidiary to grant Liens in favor of the Administrative Agent or any Lender under this Agreement or any other Loan Document, and (6) such Debt shall otherwise be issued on terms and conditions reasonably satisfactory to the Loan Documents;Administrative Agent.
(ii) in the case of any Loan Party or Subsidiary of the Borrower, (a) with respect to any Subsidiary of the Borrower that is a Loan Party, Debt owed to the Borrower or to any other Loan Party and (b) with respect to any Subsidiary of the Borrower that is not a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any the Borrower that is not a Loan Party, provided that; and
(iii) the Guaranties and, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations case of the Loan Parties and their Subsidiaries,
(A) Debt under the Loan Documents;
(iiiB) the Surviving Debt described on Schedule 4.01(n) hereto So long as no Default has occurred and any Refinancing Debt extendingis continuing, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
; provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (B) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (1B) in the event that a Default has occurred and is continuing;
(C) Capitalized Leases (other than those permitted by clause (F) below) not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease Leases to which any Subsidiary of a Loan Party is a party, any Contingent Obligation Debt of such the Loan Party of the type described in clause (j) of the definition of Debt guaranteeing the Obligations obligations of such Subsidiary under such the Capitalized Lease,
Leases permitted under this clause (C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and);
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in Person that becomes a Default under any Subsidiary of the covenants contained Borrower after the Effective Date in accordance with the terms of Section 5.045.02(f) which Debt does not exceed $10,000,000 in the aggregate and is existing at the time such Person becomes a Subsidiary of the Borrower;
(vE) So long as no Default has occurred and is continuing, other unsecured Debt of the Borrower in an aggregate principal amount not to exceed $10,000,000 at any one time outstanding; provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (E) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (E) in the case of the Parent Guarantor event that a Default has occurred and the Borrower, Debt consisting of Customary Carve-Out Agreementsis continuing;
(viF) endorsements the Surviving Debt set forth on Schedule 5.02(b), and any Debt extending the maturity of, or 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;
(G) Contingent obligations of the Loan Parties or any of their Subsidiaries in an amount not to exceed $10,000,000; provided that such contingent obligations are unsecured;
(H) Endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viiI) recourse secured Debt, provided that such Debt (A) is in respect of letters of credit in an aggregate amount not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate $10,000,000 at any time outstanding 10% outstanding;
(J) Debt in respect of Total Asset Valueindemnification obligations in connection with bonds and letters of credit related to self insurance and insurance programs and policies of the Loan Parties and their respective Subsidiaries;
(K) Obligations in respect of the Borrower’s Non-Qualified Deferred Compensation Plan to the extent of assets of such plan are on the Borrower’s balance sheet; and
(viiiL) unsecured Guarantee obligations of the Guarantors in respect of Debt of the incurrence of which would not result in a Default under Borrower permitted pursuant to Section 5.045.02(b)(i)(C).
Appears in 3 contracts
Sources: Credit Agreement (Cracker Barrel Old Country Store, Inc), Credit Agreement (Cracker Barrel Old Country Store, Inc), Credit Agreement (Cracker Barrel Old Country Store, Inc)
Debt. CreateNot, incur, assume or suffer to exist, or and not permit any of its Subsidiaries to other Loan Party to, create, incur, assume or suffer to exist, exist any Debt, except:
(ia) Debt Obligations under this Agreement and the other Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(Ab) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in 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 $10,000,000 5,000,000;
(c) Debt of any Loan Party to another Loan Party or, to the extent permitted under Section 11.10 hereof, Debt of any Subsidiary to any Loan Party or of any Loan Party to any Subsidiary; provided that such Debt shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent and 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 Borrowers hereunder in a manner reasonably satisfactory to the Administrative Agent;
(d) Subordinated Debt not exceeding $5,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(ve) Hedging Obligations incurred in the case favor of the Parent Guarantor a Lender or an Affiliate thereof for bona fide hedging purposes and the Borrower, Debt consisting of Customary Carve-Out Agreementsnot for speculation;
(vif) endorsements of negotiable instruments Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(g) Endorsements for deposit or collection or similar transactions deposit of any commercial paper secured in the ordinary course of business;
(viih) recourse secured Debt, provided that such Guaranties of Debt otherwise permitted hereunder;
(Ai) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured Debt assumed by any Lien on any Borrowing Base Asset, and (C) shall Loan Party in connection with an Acquisition permitted by Section 11.5 so long as the amount thereof does not exceed in the aggregate at any time outstanding 1050% of Total Asset Valuethe 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 in connection with Acquisitions permitted under Section 11.5 and purchasers in connection with dispositions permitted under Section 11.5; and
(viiik) other unsecured Debt, in addition to the Debt the incurrence of which would listed above, in an aggregate outstanding amount not result in a Default under Section 5.04at any time exceeding $10,000,000.
Appears in 2 contracts
Sources: Credit Agreement (Landauer Inc), Credit Agreement (Landauer Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 5,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 5,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) the Surviving Debt described on Schedule 4.01(o) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt,
(D) Debt in respect of Hedge Agreements entered into by the Borrower and designed to hedge against fluctuations in interest rates or foreign exchange rates incurred as required by this Agreement or incurred in the ordinary course of business and consistent with prudent business practices, and,
(DE) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement, and
(F) Recourse Debt not secured by any Lien in an amount not to exceed 5% of Total Asset Value at any one time outstanding;
(iv) Recourse Debt of the covenants contained Borrower and/or Property-Level Subsidiaries of the Borrower and the JV Pro Rata Share of Recourse Debt of any Joint Venture, in each case as such Recourse Debt may be secured by Liens permitted by Section 5.045.02(a)(vii), in respect of which the Borrower or the Parent Guarantor has guaranteed the obligations of the Borrower and/or such Property-Level Subsidiary or Joint Venture under such Recourse Debt and the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of under Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;; and
(vii) recourse secured Debt, provided that such any other Debt (A) is not recourse to exceed $5,000,000 in the aggregate at any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) time outstanding in respect of all Loan Parties and which is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 2 contracts
Sources: Credit Agreement (Campus Crest Communities, Inc.), Credit Agreement (Campus Crest Communities, Inc.)
Debt. Create, incur, assume guarantee or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, exist any Debt, except:except (other than with respect to Parent in subsections (b), (c) and (e)- (m) below):
(ia) Debt Obligations under this Agreement and the other Loan Documents;
(iib) in Debt secured by Liens permitted by Section 10.2.2(d) (Liens); provided, that the case aggregate amount of all such Debt at any time outstanding shall not exceed $175,000,000 at any time thereafter;
(c) unsecured Debt of any Loan Party or any Subsidiary of a Loan Party, Debt owed (other than Parent) to any other Loan Party (other than Parent) or to any whollyother Wholly-owned Owned Subsidiary of any other than a Loan Party; provided, provided that, in each case, such Debt (y) shall be on terms acceptable to the Administrative Agent and (z) shall be evidenced by promissory notes a demand note in form and substance reasonably satisfactory to the Administrative Agent, which promissory notes shall (unless payable Agent and pledged and delivered to Agent pursuant to the BorrowerSecurity Documents as additional collateral security for the Obligations, and, if owing by a Loan Party (other than to another Loan Party) by their terms the obligations under such demand note shall be subordinated to the Obligations of Borrowers and the other Loan Parties hereunder and under the other Loan DocumentsDocuments in a manner and on terms reasonably satisfactory to Agent;
(iiid) the Surviving Debt described on Schedule 4.01(n(i) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) solely in the case of each Loan Party (other than Parent and only for so long as the Parent Guarantor) and its Subsidiaries,
(A) Subordination Agreement remains in effect, the Sponsor Debt secured by Liens permitted by Section 5.02(a)(iv) in a principal amount at any time outstanding not to exceed $15,000,000, less any principal payments made thereon after the Closing Date and (ii) so long as, at the time of incurrence thereof, no Default or Event of Default then exists or would result therefrom, any other unsecured Subordinated Debt in the aggregate $10,000,000 an amount at any time outstanding,
(B) (1) Capitalized Leases outstanding not to exceed $10,000,000, in the aggregate $10,000,000 at any time outstandingand, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a partythis clause (ii), any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates extension, renewal or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any refinancing thereof so long as each of the covenants contained in Section 5.04applicable Refinancing Conditions are satisfied;
(ve) Obligations under Hedging Agreements approved by Agent and incurred in the case favor of the Parent Guarantor a Lender or an Affiliate thereof for bona fide hedging purposes and the Borrower, Debt consisting of Customary Carve-Out Agreementsnot for speculation;
(vif) endorsements Debt existing on December 31, 2010 (less payments made from such date through and including the Closing Date and excluding Debt to be Repaid) described on Schedule 10.2.1(f) (Existing Debt) and any extension, renewal or refinancing thereof so long as each of negotiable instruments for deposit or collection or similar transactions in the ordinary course of businessapplicable Refinancing Conditions are satisfied;
(viig) recourse secured Debt, provided that the Debt to be Repaid existing on the Closing Date and set forth on Schedule 10.2.1(g) (Debt to be Repaid) (so long as such Debt is repaid on the Closing Date);
(Ah) is not recourse unsecured Contingent Obligations arising with respect to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest thereincustomary indemnification obligations in favor of sellers in connection with Permitted Acquisitions and purchasers in connection with dispositions permitted under Section 10.2.4 (Mergers, Consolidations, Sales and Other Transactions Outside the Ordinary Course of Business);
(Bi) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate up to $5,000,000 at any time outstanding 10% of Total Asset Value; andsecured Acquired Debt of the type permitted pursuant to clause (b) of this Section 10.2.1 assumed in Permitted Acquisitions, and any extension, renewal or refinancing thereof so long as each of the applicable Refinancing Conditions are satisfied;
(viiij) unsecured Contingent Obligations constituting (and all cases subject to the restrictions and limitations with respect to, but without duplication of liabilities in terms of contingent obligations guaranteeing previously included primary obligations for) Debt the incurrence of which would not result in a Default otherwise permitted under this Section 5.04.10.2.1
Appears in 2 contracts
Sources: Loan, Security and Guaranty Agreement (Transport America, Inc.), Loan, Security and Guaranty Agreement (Transport America, Inc.)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party the Borrower or any a Subsidiary Guarantor,
(A) Debt in respect of a Loan Party, Hedge Agreements permitted under Section 5.02(m) hereof;
(B) Debt owed to any other Loan Party or any wholly-owned a Subsidiary of any Loan PartyGuarantor, provided thatwhich Debt (x) shall constitute Pledged Debt, in each case, such Debt (y) shall be subordinated to the Facilities and on terms acceptable to the Administrative Agent Joint Lead Arrangers and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, which Joint Lead Arrangers and such promissory notes shall (unless payable 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) so long as no Event of Default has occurred and is continuing, or would result therefrom, (x) other unsecured Debt and (y) Debt secured by Liens permitted under Section 5.02(a)(vi); provided that before and after giving effect to such Debt, the Borrower is in pro forma compliance with the covenants in Section 5.04, calculated based on the financial statements most recently delivered pursuant to Section 5.03 and as though such Debt had been incurred at the beginning of the four-quarter period covered thereby;
(ii) in the case of any Subsidiary of the Borrower,
(A) by their terms Debt owed to the Borrower or to a Subsidiary Guarantor, provided that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall be subordinated to the Facilities and on terms acceptable to the Joint Lead Arrangers and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Joint Lead Arrangers and such promissory notes shall be pledged as security for the Obligations of the Loan Parties holder thereof under the Loan DocumentsDocuments to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement;
(B) so long as no Event of Default has occurred and is continuing or would result therefrom, other unsecured Debt in an aggregate principal amount not to exceed $50 million at any one time outstanding; and
(C) Debt of a newly-formed or newly-acquired Subsidiary owed to a Person financing the formation of such Subsidiary or the acquisition of all of the Equity Interests in or all or substantially all of the assets of such Subsidiary as contemplated by Section 5.02(f)(vii);
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) Borrower and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) so long as no Event of Default has occurred and is continuing, or would result therefrom, Debt secured by Liens permitted by Section 5.02(a)(iv) not 5.02(a)(v); provided, that before and after giving effect to exceed such Debt, the Borrower is in pro forma compliance with the aggregate $10,000,000 financial covenants set forth in Section 5.04 hereof calculated based on the financial statements most recently delivered pursuant to Section 5.03 and as though such Debt was incurred at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstandingbeginning of the four-quarter period covered thereby, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,and
(C) the Surviving Debt, and any Debt extending the maturity of, or refunding or refinancing, in respect of Hedge Agreements designed to hedge against fluctuations whole or in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practicespart, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured 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 (Aexcept by an amount equal to a reasonable premium paid, and reasonable fees and expenses incurred, in connection with such 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, amortization, maturity, collateral (if any) is not recourse 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 Loan Parties or the Lender Parties than the terms of any agreement or instrument governing the Surviving Debt being extended, refunded or refinanced and the interest rate applicable to any Subsidiary Guarantor that owns any Borrowing Base Asset such extending, refunding or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall refinancing Debt does not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04then applicable market interest rate.
Appears in 2 contracts
Sources: Credit Agreement (Steel Dynamics Inc), Credit Agreement (Steel Dynamics Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan PartyBMCA, Debt owed to any other Loan Party or any wholly-a wholly owned Subsidiary of any Loan PartyBMCA which is a Guarantor, provided that, in each case, such which Debt (yx) shall be on terms acceptable to the Administrative Agent constitute Pledged Debt and (zy) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, which Agent and such promissory notes shall (unless payable shall, in the case of Debt owed to the Borrower) by their terms a Loan Party, be subordinated to pledged as security for the Obligations of the Loan Parties holder thereof under the Loan DocumentsDocuments to which such holder is a party and delivered to the Collateral Agreement Agent pursuant to the terms of the Security Agreement;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(ivii) in the case of any Subsidiary of BMCA, Debt owed to BMCA or to a wholly owned Subsidiary of BMCA, provided that, in each case, such Debt (w) shall be permitted under Section 5.02(f), (x) shall, in the case of Debt owed to a Loan Party Party, constitute Pledged Debt and (other than y) shall be evidenced by promissory notes in form and substance satisfactory to the Parent GuarantorAdministrative Agent and such promissory notes shall, in the case of Debt owed to a Loan Party, 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 Agreement Agent pursuant to the terms of the Security Agreement; and
(iii) in the case of BMCA and its Subsidiaries,
(A) Debt under this Agreement, the Revolving Credit Facility, the Existing Indentures, the Senior Notes Indenture, the Bridge Loan Facility and the Elk Letters of Credit,
(B) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be in pro forma compliance with the provisions of Section 5.04 (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lenders as though such Debt had been incurred as of the first day of the fiscal period covered thereby), (I) Debt secured by Liens permitted by Section 5.02(a)(iv), (II) Capitalized Leases permitted by Section 5.02(a)(v), and (III) Debt in respect of sale-leaseback transactions permitted by Section 5.02(a)(vii), provided, however, that (i) such Debt incurred pursuant to this Section 5.02(b)(iii)(B) shall not have scheduled amortization payments prior to the seventh anniversary of the Closing Date in an aggregate principal amount in any Fiscal Year (together with the aggregate scheduled amortization payments in any Fiscal Year prior to the seventh anniversary of the Closing Date of any Debt permitted pursuant to clauses (C), (E) and (J) below) greater than the Amortization Basket, and (ii) Debt incurred pursuant to this Section 5.02(b)(iii)(B) shall not exceed $200,000,000 in the aggregate $10,000,000 at any time outstandingduring the term of this Agreement,
(BC) So long as (1) Capitalized Leases not to exceed in no Default has occurred and is continuing (both at the aggregate $10,000,000 at any time outstandingof such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be in pro forma compliance with the provisions of Section 5.04 (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lenders as though such Debt had been incurred as of the first day of the fiscal period covered thereby), Debt extending the maturity of, or refunding or refinancing, in whole or in part (without any increase in the case of principal amount thereof or any Capitalized Lease to which change in any Subsidiary of a Loan Party is a partydirect or contingent obligor thereof), any Contingent Obligation Debt under the 2014 Notes Indenture, the Bridge Loan Facility, the Revolving Credit Facility or the Senior Notes, provided, however, that (x) the terms and conditions of such Loan Party guaranteeing extending, refunding or refinancing Debt are market terms and conditions at the Obligations time of such Subsidiary under extension, refunding or refinancing and (y) any security arrangements in respect of such Capitalized Leaseextended, refunded or refinanced Debt shall be no more onerous to the Lenders than those set forth in the security documentation in effect at such time; and provided, further that there are no remaining scheduled amortization payments in respect of such extending, refunding or refinancing Debt prior to December 31, 2014 that is more onerous than the remaining scheduled amortization prior to December 31, 2014 applicable to the Debt being refinanced, provided, further, that any Net Cash Proceeds received by BMCA in connection with any refinancing of such Debt and not applied for such refinancing shall be applied as provided in Section 2.05,
(CD) The Surviving Debt and, on or after the Closing Date, the Debt listed on Schedule 3.02 hereto,
(E) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be in pro forma compliance with the provisions of Section 5.04 (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lenders as though such Debt had been incurred as of the first day of the fiscal period covered thereby), Debt extending the maturity of, or refunding or refinancing, in whole or in part (without any increase in the principal amount thereof or any change in any direct or contingent obligor thereof), any Debt described in clause (B) above and any other Surviving Debt, provided that (x) there are no remaining scheduled amortization payments in respect of Hedge Agreements designed such extending, refunding or refinancing Debt prior to hedge against fluctuations December 31, 2014 that is more onerous than the remaining scheduled amortization prior to December 31, 2014 if any, applicable to the Debt being extended, refunded or refinanced and (y) any security arrangements in interest rates respect of such extended, refunded or foreign exchange rates refinanced Debt shall be no more onerous to the Lenders than those set forth in the security documentation in effect at such time; and (z) there are no scheduled amortization payments of principal in respect of such Debt prior to the seventh anniversary of the Closing Date in an aggregate principal amount in any Fiscal Year (together with the aggregated scheduled amortization payments in any Fiscal Year prior to the seventh anniversary of the Closing Date of any Debt permitted pursuant to clauses (B) and (C) above and clause (J) below) greater than the Amortization Basket; provided further that the principal amount of such Debt being extended, refunded or refinanced 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,
(F) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be in pro forma compliance, with the provisions of Section 5.04 (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lenders as though such Debt had been incurred as of the first day of the fiscal period covered thereby), unsecured, subordinated Debt with market terms owing to G-I Holdings or BMCA Holdings,
(G) Debt consisting of surety bonds or similar instruments in favor of government agencies in connection with workers’ compensation liabilities, taxes, assessments or other obligations, provided, however, that such Debt is incurred in the ordinary course of business business,
(H) Debt of any entity acquired by BMCA or its Subsidiaries in accordance with the terms hereof so long as (i) such Debt was incurred prior to such acquisition (and consistent not in connection with prudent business practicesor contemplation of, such acquisition), (ii) both before and after giving effect to such acquisition, no Default or Event of Default shall exist, and (iii) such Debt has no additional direct, indirect or contingent obligor,
(I) Debt of any Loan Party consisting of Contingent Obligations in respect of Debt of other Loan Parties, so long as such other Loan Parties are permitted to incur such Debt hereunder,
(J) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be in pro forma compliance, with the provisions of Section 5.04 (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lenders as though such Debt had been incurred as of the first day of the fiscal period covered thereby), Debt ranked junior (in respect of any Liens securing such Debt, which Liens shall be ranked junior to the Liens securing this Term Loan Facility), provided, however, that there are no scheduled amortization payments of principal in respect of such Debt prior to the seventh anniversary of the Closing Date in an aggregate principal amount in any Fiscal Year (together with the aggregated scheduled amortization payments in any Fiscal Year prior to the seventh anniversary of the Closing Date, of any Debt permitted pursuant to clauses (B), (C) and (E) above) greater than the Amortization Basket, and
(DK) Non-Recourse Debt (including, without limitationAt any time prior to the thirtieth Business Day after the date of the Merger, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04Elk Private Notes.
Appears in 2 contracts
Sources: Term Loan Agreement (Building Materials Manufacturing Corp), Term Loan Agreement (BMCA Acquisition Sub Inc.)
Debt. CreateIncur, incurassume, assume guarantee or suffer to exist, otherwise become or permit any of its Subsidiaries to create, incur, assume remain directly or suffer to existindirectly liable with respect to, any Debt, exceptexcept for:
(a) Debt incurred or created hereunder and under the other Loan Documents (including Debt created under Section 2.09);
(b) Debt outstanding on (or made pursuant to binding commitments existing on) the Effective Date as set forth on Schedule 6.01(b) and Permitted Refinancings thereof;
(c) (i) Debt incurred or assumed by the Company or any of the 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 improvement) all or any part of the cost of acquiring, leasing, constructing or improving any equipment or fixed asset (including through Capital Leases) (whether through the direct purchase of assets or the Equity Interests of any 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 $125,000,000;
(d) intercompany Debt among the Company and its Subsidiaries; provided that (x) upon request of the 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, (y) with respect to any such Debt owed by a Loan Party to a Subsidiary that is not a Loan Party, such Debt shall be subordinated in right of payment to the Obligations pursuant to the Affiliate Subordination Agreement, and (z) any corresponding Investment shall be permitted by Sections 6.07(c), (r) or (t);
(e) Debt of Subsidiaries that are not Loan Parties in an aggregate principal amount outstanding at any time not to exceed the Dollar equivalent of $150,000,000;
(f) Debt consisting of (i) 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 under assumed in connection with Permitted Acquisitions; provided, that, (x) such Debt was not incurred in contemplation of such Permitted Acquisition, (y) both immediately prior and after giving effect to any Debt incurred pursuant to this clause (g), no Event of Default shall have occurred and be continuing and (z) the Loan DocumentsCompany and the Restricted Subsidiaries shall be in compliance with the financial covenants set forth in Section 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 thereof, 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 case ordinary course of business; provided that any Loan Party such Debt (x) (other than credit card processing agreements or similar arrangements) is owed to the financial institutions providing such arrangements (or any Subsidiary Affiliate thereof) and (y) is extinguished within 30 days of a Loan Party, its incurrence;
(l) Debt owed to any other Loan Party incurred by the Company or any wholly-owned Restricted Subsidiary constituting reimbursement obligations with respect to letters of any Loan Partycredit, provided thatbank 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 Debt (y) shall be on terms acceptable Person is lessee, and letters of credit in connection with the maintenance of, or pursuant to the Administrative Agent requirements of, environmental or other permits or licenses from Governmental Authorities, and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agentany refund, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations replacement, refinancing or defeasance of any of the Loan Parties under the Loan Documentsforegoing;
(iiim) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt obligations in respect of Hedge Agreements designed to hedge against fluctuations 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 interest rates each case, issued or foreign exchange rates incurred created in the ordinary course of business and consistent with prudent 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 practices, of the Company and its subsidiaries in connection with the cash management operations (including with respect to intercompany self-insurance arrangements); and
(Ds) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint VentureLoan 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 respect the case of Assets other than Borrowing Base Assetsterm loans, the incurrence of which would nominal amortization requirements not result in a Default under any 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 covenants contained and events of default set forth in Section 5.04the 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 (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 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 the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreementsgood faith;
(vi) endorsements which Debt:
(A) may be unsecured; or
(B) 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 negotiable instruments 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 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 deposit the benefit of the Secured Parties, shall retain a first priority lien on all Collateral or collection (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 the Fixed Asset Release Event, such Debt shall not be secured by any Intellectual Property or similar transactions in by the ordinary course Equity Interests of business;any 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, 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 less than 1.50 to 1.00.
(C) may be guaranteed on a like basis by the other Loan Parties; and
(vii) recourse secured Debt, provided that such Debt shall be in an aggregate principal amount not to exceed the greater of (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate $5,000,000,000 at any time outstanding 10% of Total Asset Value; and
and (viiiB) unsecured Debt an amount such that after giving pro forma effect to the incurrence of 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 result have a scheduled maturity earlier than 91 days after the Maturity Date in effect at the time of issuance or incurrence of such Permitted Convertible Notes (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 Default under Section 5.04.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 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 control or other similar event risk provisions and, 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 (or 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);
(iv) the 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 events of default set forth in this 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 (y) provisions related to any equity provisions of such Permitted Convertible Notes;
(v) to the extent such Permitted Convertibl
Appears in 2 contracts
Sources: Credit Agreement (Rivian Automotive, Inc. / DE), Credit Agreement (Rivian Automotive, Inc. / DE)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan PartyBMCA, Debt owed to any other Loan Party or any wholly-a wholly owned Subsidiary of any Loan PartyBMCA which is a Guarantor, provided that, in each case, such which Debt (yx) shall be on terms acceptable to the Administrative Agent constitute Pledged Debt and (zy) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, which Agent and such promissory notes shall (unless payable shall, in the case of Debt owed to the Borrower) by their terms a Loan Party, be subordinated to pledged as security for the Obligations of the Loan Parties holder thereof under the Loan DocumentsDocuments to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(ivii) in the case of any Subsidiary of BMCA, Debt owed to BMCA or to a wholly owned Subsidiary of BMCA, provided that, in each case, such Debt (w) shall be permitted under Section 5.02(f), (x) shall, in the case of Debt owed to a Loan Party Party, constitute Pledged Debt and (other than y) shall be evidenced by promissory notes in form and substance satisfactory to the Parent GuarantorAdministrative Agent and such promissory notes shall, in the case of Debt owed to a Loan Party, be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party; and
(iii) in the case of BMCA and its Subsidiaries,
(A) Debt under this Agreement, the Revolving Credit Facility, the Existing Indentures, the Senior Notes Indenture, the Term Loan Facility and the Elk Letters of Credit,
(B) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be in pro forma compliance with the provisions of Section 5.04 (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lenders as though such Debt had been incurred as of the first day of the fiscal period covered thereby), (I) Debt secured by Liens permitted by Section 5.02(a)(iv), (II) Capitalized Leases permitted by Section 5.02(a)(v), and (III) Debt in respect of sale-leaseback transactions permitted by Section 5.02(a)(vii), provided, however, that (i) such Debt incurred pursuant to this Section 5.02(b)(iii)(B) shall not have scheduled amortization payments prior to the eighth anniversary of the Closing Date in an aggregate principal amount in any Fiscal Year (together with the aggregate scheduled amortization payments in any Fiscal Year prior to the eighth anniversary of the Closing Date of any Debt permitted pursuant to clauses (C), (E) and (J) below) greater than the Amortization Basket, and (ii) Debt incurred pursuant to this Section 5.02(b)(iii)(B) shall not exceed $200,000,000 in the aggregate $10,000,000 at any time outstandingduring the term of this Agreement,
(BC) So long as (1) Capitalized Leases not to exceed in no Default has occurred and is continuing (both at the aggregate $10,000,000 at any time outstandingof such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be in pro forma compliance with the provisions of Section 5.04 (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lenders as though such Debt had been incurred as of the first day of the fiscal period covered thereby), Debt extending the maturity of, or refunding or refinancing, in whole or in part (without any increase in the case of principal amount thereof or any Capitalized Lease to which change in any Subsidiary of a Loan Party is a partydirect or contingent obligor thereof), any Contingent Obligation Debt under the 2014 Notes Indenture, the Term Loan Facility, the Revolving Credit Facility or the Senior Notes Indenture, provided, however, that (x) the terms and conditions of such Loan Party guaranteeing extending, refunding or refinancing Debt are market terms and conditions at the Obligations time of such Subsidiary under extension, refunding or refinancing and (y) any security arrangements in respect of such Capitalized Leaseextended, refunded or refinanced Debt shall be no more onerous to the Lenders than those set forth in the security documentation in effect at such time; and provided, further, that there are no remaining scheduled amortization payments in respect of such extending, refunding or refinancing Debt prior to December 31, 2015 that is more onerous than the remaining scheduled amortization prior to December 31, 2015 applicable to the Debt being refinanced, provided, further, that any Net Cash Proceeds received by BMCA in connection with any refinancing of such Debt and not applied for such refinancing shall be applied as provided in Section 2.05,
(CD) The Surviving Debt and, on or after the Closing Date, the Debt listed on Schedule 5.02(b)(iii)(D) hereto,
(E) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be in pro forma compliance with the provisions of Section 5.04 (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lenders as though such Debt had been incurred as of the first day of the fiscal period covered thereby), Debt extending the maturity of, or refunding or refinancing, in whole or in part (without any increase in the principal amount thereof or any change in any direct or contingent obligor thereof), any Debt described in clause (B) above and any other Surviving Debt, provided that (x) there are no remaining scheduled amortization payments in respect of Hedge Agreements designed such extending, refunding or refinancing Debt prior to hedge against fluctuations December 31, 2015 that is more onerous than the remaining scheduled amortization prior to December 31, 2015 if any, applicable to the Debt being extended, refunded or refinanced, (y) any security arrangements in interest rates respect of such extended, refunded or foreign exchange rates refinanced Debt shall be no more onerous to the Lenders than those set forth in the security documentation in effect at such time; and (z) there are no scheduled amortization payments of principal in respect of such Debt prior to the eighth anniversary of the Closing Date in an aggregate principal amount in any Fiscal Year (together with the aggregated scheduled amortization payments in any Fiscal Year prior to the eighth anniversary of the Closing Date of any Debt permitted pursuant to clauses (B) and (C) above and clause (J) below) greater than the Amortization Basket; provided, further, that the principal amount of such Debt being extended, refunded or refinanced 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,
(F) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be in pro forma compliance, with the provisions of Section 5.04 (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lenders as though such Debt had been incurred as of the first day of the fiscal period covered thereby), unsecured, subordinated Debt with market terms owing to G-I Holdings or BMCA Holdings,
(G) Debt consisting of surety bonds or similar instruments in favor of government agencies in connection with workers’ compensation liabilities, taxes, assessments or other obligations, provided, however, that such Debt is incurred in the ordinary course of business business,
(H) Debt of any entity acquired by BMCA or its Subsidiaries in accordance with the terms hereof so long as (i) such Debt was incurred prior to such acquisition (and consistent not in connection with prudent business practicesor contemplation of, such acquisition), (ii) both before and after giving effect to such acquisition, no Default or Event of Default shall exist, and (iii) such Debt has no additional direct, indirect or contingent obligor,
(I) Debt of any Loan Party consisting of Contingent Obligations in respect of Debt of other Loan Parties, so long as such other Loan Parties are permitted to incur such Debt hereunder,
(J) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be in pro forma compliance, with the provisions of Section 5.04 (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lenders as though such Debt had been incurred as of the first day of the fiscal period covered thereby), Debt ranked junior (in respect of any Liens securing such Debt, which Liens shall be ranked junior to the Liens securing the Bridge Loan Facility), provided, however, that there are no scheduled amortization payments of principal in respect of such Debt prior to December 31, 2015 in an aggregate principal amount in any Fiscal Year (together with the aggregated scheduled amortization payments in any Fiscal Year prior to the eighth anniversary of the Closing Date of any Debt permitted pursuant to clauses (B), (C) and (E) above) greater than the Amortization Basket, and
(DK) Non-Recourse Debt (including, without limitationAt any time prior to the thirtieth Business Day after the date of the Merger, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04Elk Private Notes.
Appears in 2 contracts
Sources: Bridge Loan Agreement (Building Materials Manufacturing Corp), Bridge Loan Agreement (BMCA Acquisition Sub Inc.)
Debt. Create, The Borrower will not incur, assume create, assume, or suffer permit to exist, and will not permit any Subsidiary to incur, create, assume, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(ia) Debt under to the Lenders and the Issuing Bank pursuant to the Loan Documents;
(b) Debt listed on Schedule 9.1;
(c) unsecured Debt owed by a Guarantor to another Guarantor evidenced by a promissory note which is issued to satisfy any applicable state regulatory requirement for the issuance of a license for consumer loan activity, such promissory note being pledged to and held by the Agent as Collateral;
(d) Guarantee by the Borrower of real estate lease obligations of a Guarantor;
(e) subordinated Debt which is fully subordinated to the Obligations, on terms specifically including, without limitation, that payments on such Debt shall be prohibited if a Default exists or would result from such payment, the maturity date of such Debt shall be later than the later of (i) the Revolving Credit Termination Date or (ii) in the case of any Term Loan Party or any Subsidiary of a Loan PartyTermination Date, Debt owed and other terms and conditions and pursuant to any other Loan Party or any wholly-owned Subsidiary of any Loan Partydocumentation, provided that, in each case, such Debt (y) shall be on terms acceptable to the Administrative Agent and (z) shall be evidenced by promissory notes all in form and substance satisfactory to the Administrative Agent, which promissory notes shall (unless payable to Agent and the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan DocumentsRequired Lenders;
(iiif) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debtconsisting of CSO LCs;
(ivg) Guarantees of the Debt permitted in the case of each Loan Party clause (other than the Parent Guarantorf) and its Subsidiaries,above;
(Ah) Debt secured assumed by Liens permitted by Section 5.02(a)(iv) the Borrower or any Subsidiary in connection with Permitted Acquisitions in an aggregate amount not to exceed in the aggregate $10,000,000 5,000,000 at any one time outstanding,;
(Bi) purchase money Debt which in each case shall not exceed 100% of the lesser of the total purchase price and the fair market value of such acquired asset as determined at the time of acquisition;
(1j) Capitalized Leases not to exceed in Guarantees by the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which Borrower or any Subsidiary of real estate lease obligations of an employee or agent of Borrower or a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset ValueGuarantor; and
(viiik) unsecured Debt the incurrence of which would (other than Debt described in clauses (a) through and including (j) above) in an aggregate amount not result in a Default under Section 5.04to exceed $2,000,000.00 at any one time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Ezcorp Inc), Credit Agreement (Ezcorp Inc)
Debt. CreateGroup will not create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;Covered Facilities; provided that all New Facilities will be subject to the approval procedures specified in Section 2.4 of the Intercreditor Agreement,
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;Designated Capital Markets Transactions,
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv2.6(a)(v) not to exceed in the aggregate $10,000,000 5,000,000 at any time outstanding,
(B) (1iv) Capitalized Leases not to exceed in the aggregate $10,000,000 15,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(Cv) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, andpractice,
(Dvi) Non-Recourse Debt owing by any U.S. Credit Party to (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) or Contingent Obligations made in respect of Assets the obligations of any U.S. Credit Party by) any other than Borrowing Base AssetsU.S. Credit Party, (x) which Debt shall constitute Pledged Debt and (y) any promissory notes evidencing such Pledged Debt shall be pledged as security for the incurrence of which would not result in a Default under any Obligations of the covenants contained in Section 5.04;holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Trustee pursuant to the terms of the Security Agreement,
(vvii) Debt owing by any Foreign Subsidiary to (or Contingent Obligations made in respect of the obligations of any Foreign Subsidiary by) any U.S. Credit Party, not to exceed in the aggregate $10,000,000 at any time outstanding under this clause (vii), which Debt, in the case of any Foreign Credit Party, (x) shall constitute Pledged Debt and (y) any promissory notes relating to such Debt (which shall be prepared in certificated form if determined in the Parent Guarantor reasonable judgment of the Debt Coordinators to be necessary or advisable under applicable law to vest in the Collateral Trustee a valid and subsisting Lien on such Debt) shall be pledged as security for the Borrower, Debt consisting Obligations of Customary Carve-Out Agreementsthe holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Trustee pursuant to the terms of the Collateral Documents;
(viviii) endorsements Debt owing by any U.S. Credit Party or any Foreign Subsidiary to (or Contingent Obligations made in respect of negotiable instruments for deposit the obligations of any U.S. Credit Party or collection or similar transactions in the ordinary course of businessany Foreign Subsidiary by) any Excluded Foreign Subsidiary;
(viiix) recourse secured DebtDebt owing by any Foreign Credit Party to (or Contingent Obligations made in respect of the obligations of any Foreign Credit Party by) another Foreign Credit Party, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest thereinno such Debt can be incurred after the occurrence and during the continuance of a Default, (B) such Debt is not secured otherwise in compliance with Schedule III hereto, (C) such Debt shall constitute Pledged Debt and (D) any promissory notes relating to such Debt (which shall be prepared in certificated form if determined in the reasonable judgment of the Debt Coordinators to be necessary or advisable under applicable law to vest in the Collateral Trustee a valid and subsisting Lien on such Debt) 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 Trustee pursuant to the terms of the Collateral Documents;
(x) Debt owing by any Excluded Foreign Subsidiary to (or Contingent Obligations made in respect of the obligations of any Excluded Foreign Subsidiary by) any Foreign Credit Party, not to exceed in the aggregate $10,000,000 at any time outstanding under this clause (x) and (A) which Debt shall constitute Pledged Debt and (B) any promissory notes relating to such Debt (which shall be prepared in certificated form if determined in the reasonable judgment of the Debt Coordinators to be necessary or advisable under applicable law to vest in the Collateral Trustee a valid and subsisting Lien on such Debt) 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 Trustee pursuant to the terms of the Collateral Documents;
(xi) Debt consisting of Contingent Obligations pursuant to which a U.S. Credit Party guarantees operating lease obligations of Foreign Subsidiaries, not to exceed in the aggregate $5,000,000 during any Borrowing Base AssetFiscal Year;
(xii) Debt of any Person that becomes a Subsidiary of Group after the date hereof in accordance with the terms of Section 2.6(e)(x) which Debt is existing at the time such Person becomes a Subsidiary of Group (other than Debt incurred solely in contemplation of such Person becoming a Subsidiary of Group); provided that after giving effect to such Debt, the Leverage Ratio, calculated on a pro-forma basis (and using for this purpose "Total Bank Outstandings" rather than "Indebtedness for Borrowed Money" in such calculation) as if such Debt had been incurred immediately prior to the beginning of the most recent period of four consecutive Fiscal Quarters for which financial statements have been delivered hereunder, will not have increased;
(xiii) Debt in respect of the Securitization Facility;
(xiv) Debt existing on the date hereof and described on Schedule 2.6(b), and any Debt extending the maturity of, or refunding or refinancing, in whole or in part, such Debt (which, in the case of Debt consisting of guarantees of operating lease obligations, shall include guarantees of any replacement leases, provided that the Contingent Obligation under such guarantees may not increase as a result thereof), provided that the (A) 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, (B) 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 and (C) shall terms relating to principal amount, amortization, maturity, collateral (if any), 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 Loan Parties or the Lender Parties than the terms of any agreement or instrument governing the Debt being extended, refunded or refinanced and the interest rate applicable to any such extending, refunding or refinancing Debt does not exceed in the aggregate at any time outstanding 10% of Total Asset Valuethen applicable market interest rate; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 2 contracts
Sources: Amendment, Modification, Restatement and General Provisions Agreement (Warnaco Group Inc /De/), Amendment, Modification, Restatement and General Provisions Agreement (Warnaco Group Inc /De/)
Debt. Create, incur, assume or suffer to exist, or permit any of its Restricted Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) in the case of the Borrower,
(A) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates incurred in the ordinary course of business and consistent with prudent business practice with the aggregate Agreement Value thereof not to exceed $2,000,000 at any time outstanding, and
(B) Debt owed to a Restricted Subsidiary of the Borrower, which Debt (x) shall, in the case of Debt owed to a Loan Party, constitute Pledged Debt, (y) shall be on terms acceptable to the Administrative Agent and (z) if evidenced by promissory notes, such promissory notes shall be in form and substance satisfactory to the Administrative Agent and shall, in the case of Debt owed to a Loan Party, be pledged as security for the Obligations of the holder thereof under the Loan DocumentsDocuments to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreement;
(ii) in the case of any Loan Party or any Restricted Subsidiary of a Loan Partythe Borrower, Debt owed to any other Loan Party the Borrower or any wholly-owned to a Restricted Subsidiary of any Loan Partythe Borrower, provided provided, that, in each case, such Debt (x) shall, in the case of Debt owed to a Loan Party, 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, which Agent and such promissory notes shall (unless payable shall, in the case of Debt owed to the Borrower) by their terms a Loan Party, be subordinated to pledged as security for the Obligations of the Loan Parties holder thereof under the Loan Documents;Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreement; and
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) Borrower and its Restricted 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,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease),
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, andCapitalized Leases,
(D) Non-Recourse (x) the Existing Debt, and (y) any Debt extending the maturity of, or refunding or refinancing, in whole or in part, any Existing 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 Existing 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, amortization, maturity, collateral (includingif any) and subordination (if any), without limitationand 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 JV Pro Rata Share Loan Parties or the Lender Parties than the terms of Non-Recourse any agreement or instrument governing the Existing Debt being extended, refunded or refinanced and the interest rate applicable to any such extending, refunding or refinancing Debt does not exceed the then applicable market interest rate,
(E) Debt of any Joint VenturePerson that becomes a Restricted Subsidiary of the Borrower after the date hereof in accordance with the terms of Section 5.02(f) which Debt is existing at the time such Person becomes a Restricted Subsidiary of the Borrower (other than Debt incurred solely in contemplation of such Person becoming a Restricted Subsidiary of the Borrower),
(F) Contingent Obligations (1) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any obligations of the covenants contained Loan Parties permitted hereunder, (2) described on Schedule 5.02(b)(iii)(F), (3) arising in Section 5.04;
(v) in the case of the Parent Guarantor connection with indemnity programs for employees and the Borroweror agents, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debtprovided, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall Contingent Obligations do not exceed in the aggregate at any time outstanding 10% $5,000,000, and (4) in respect of Total Asset Value; loans and advances made to employees and/or agents pursuant to the Commission Advance Program or on account of errors and omissions insurance coverage programs, provided, that, after giving effect thereto, the aggregate amount of all Contingent Obligations permitted by subsections (iii)(F)(2), (3) and (4) above plus the aggregate amount of loans and advances made pursuant to subsections (ii) and (xi) of Section 5.02(f) shall not exceed $6,000,000,
(G) Debt under any insurance premium financing arrangement entered into in the ordinary course of business, and
(viiiH) unsecured other Debt not otherwise prohibited by the incurrence terms of which would the proviso set forth at the end of this Section 5.02(b) and subordinated to Debt incurred hereunder on terms and conditions reasonably satisfactory to the Administrative Agent (except to the extent otherwise permitted by Section 8.06); provided, however, that notwithstanding the provisions of subsections (iii)(A) through (iii)(H) above, (x) the aggregate amount of all Debt described in subsections (iii)(B), (iii)(C), (iii)(D)(y), (iii)(E) and (iii)(H) above that is secured by Liens shall not result exceed $2,000,000 at any time outstanding and (y) the aggregate amount of all Debt described in a Default under Section 5.04subsections (iii)(B), (iii)(C), (iii)(D)(y), (iii)(E) and (iii)(H) above shall not exceed $6,000,000 at any time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Grubb & Ellis Co), Credit Agreement (Grubb & Ellis Co)
Debt. Create, incur, issue, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, exist any Debt, exceptother than:
(i) Debt under the Loan Credit Documents;
(ii) in the case Debt of any Loan Party or any Restricted Subsidiary of a Loan Party, Debt owed the Borrower owing to any other Loan Party or any wholly-owned other Restricted Subsidiary of the Borrower; provided, that (a) any Debt of any Loan Party, provided that, in each case, such Debt Party owing to any non-Loan Party shall be (x) subject to the Intercompany Subordination Agreement and (y) shall be on terms acceptable evidenced by one or more notes in form and substance reasonably satisfactory to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory pledged as Collateral, to the Administrative Agent, which promissory notes shall (unless payable extent required pursuant to the BorrowerCollateral and Guarantee Requirements and (b) by their terms be subordinated Debt of any Person owing to the Obligations API incurred in reliance on this clause (ii), when aggregated with Debt of the Loan Parties under the Loan Documentsany API Excluded Subsidiary owing to API incurred in reliance on Section 7.02(f)(iii)(x), shall not exceed $10,000,000;
(iii) the Surviving (x) Debt described on Schedule 4.01(n) hereto and of any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each API Excluded Subsidiary owing to any Loan Party (other than or any Restricted Subsidiary of the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) Borrower not to exceed in the aggregate $10,000,000 at any time outstanding,
outstanding the Cumulative Credit (Bif positive) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstandingsuch time; provided that, and (2) in the case of this clause (x), Debt of any Capitalized Lease API Excluded Subsidiary owing to which API, when aggregated with Debt of any Person owing to API incurred in reliance on Section 7.02(f)(ii), shall not exceed $10,000,000 (y) Debt of any Loan Party or any Restricted Subsidiary of a the Borrower owing to any API Excluded Subsidiary; provided, that in the case of this clause (y), any Debt of any Loan Party is a partyowing to any API Excluded Subsidiary shall be (i) subject to the Intercompany Subordination Agreement and (ii) evidenced by one or more notes in form and substance reasonably satisfactory to the Administrative Agent and pledged as Collateral, to the extent required pursuant to the Collateral and Guarantee Requirements; and (z) Debt of any Contingent Obligation of such Loan Party guaranteeing the Obligations of such API Excluded Subsidiary under such Capitalized Lease,owing to any other API Excluded Subsidiary;
(Civ) existing Debt outstanding on May 31, 2015 and listed on Schedule 7.02(f)(iv) and any unused commitments or amounts in respect of Hedge Agreements designed to hedge against fluctuations in interest rates any such Debt so listed (collectively, the “Existing Debt”), and any Debt extending the maturity of, or foreign exchange rates replacing, refunding, renewing or refinancing, or (at the election of the Borrower) incurred in substitution of, in whole or in part, the ordinary course Existing Debt; provided that the aggregate principal amount of business all Existing Debt and consistent all such Debt incurred in connection with prudent business practicesany such extension, and
(D) Non-Recourse replacement, refunding, renewal, refinancing or substitution shall not exceed at any time outstanding the aggregate principal amount of the Existing Debt (includingincluding unused commitments and amounts in respect thereof) on the Effective Date (it being understood that any Debt incurred in substitution of any Existing Debt need not be incurred concurrently with, without limitationbut shall be conditioned upon, the JV Pro Rata Share repayment and termination of Non-Recourse such Existing Debt of any Joint Venture) in respect of Assets other and may be incurred by a different obligor than Borrowing Base Assets, the incurrence of which would original Existing Debt if such obligor is not result in a Default under any of the covenants contained in Section 5.04Loan Party);
(v) in the case Guarantees (x) by API of Debt of Foreign Subsidiaries that are Restricted Subsidiaries and (y) by any Restricted Subsidiary of API of Debt of API or any other Restricted Subsidiary of API permitted pursuant to this Section 7.02(f); provided that Guarantees by any Loan Party or any Restricted Subsidiary of the Parent Guarantor and the Borrower, Borrower of Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any API Excluded Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% the Cumulative Credit (if positive) at such time; provided, however, that API shall be permitted to provide limited recourse guarantees of Total Asset ValueDebt of other Loan Parties permitted under Section 7.02(f)(xviii);
(vi) Cash Management Obligations and Debt in respect cash pooling arrangements, netting services, automatic clearinghouse arrangements, overdraft protections, employee credit card programs and other cash management and similar arrangements in the ordinary course of business (and any Guarantees thereof); andprovided that the aggregate principal amount of all such Debt owing by API Excluded Subsidiaries shall not exceed in the aggregate at any time outstanding $30,000,000 and (y) 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, so long as such Debt is extinguished within 10 Business Days of incurrence;
(vii) Debt representing deferred compensation or similar obligations to employees of incurred in the ordinary course of business;
(viii) unsecured Debt in respect of (i) performance bonds, surety bonds, appeal bonds or customs bonds required in the incurrence ordinary course of which would business or in connection with the enforcement of rights or claims of any Subsidiary or in connection with judgments that do not result in a an Event of Default under Section 5.04.and (ii) letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Debt with respect to reimbursement-type obligations regarding workers compensation claims;
(ix) Debt evidenced by the IP Intercompany Note;
Appears in 2 contracts
Sources: Credit Agreement (Avon Products Inc), Revolving Credit Agreement (Avon Products Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates rates, and not for speculative purposes, incurred in the ordinary course of business and consistent with prudent business practicespractice,
(B) Debt owed to a wholly owned Subsidiary of the Borrower, which Debt (x) shall be on subordinated terms reasonably acceptable to the Administrative Agent and (y) shall be evidenced by promissory notes in form and substance reasonably satisfactory to the Administrative Agent,
(C) Debt in respect of the Senior Subordinated Notes, in an aggregate principal amount not to exceed $175,000,000 or, if the Senior Subordinated Notes are not issued, Debt in respect of the Bridge Loans in an aggregate principal amount not to exceed $85,000,000, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assetsthe Senior Notes, in an aggregate principal amount not to exceed $100,000,000.
(ii) in the incurrence case of which would not result in a Default under any Subsidiary of the covenants contained Borrower, Debt owed to the Borrower or to a wholly owned Subsidiary of the Borrower, provided that, in Section 5.04;each case, such Debt (x) shall be on terms reasonably acceptable to the Administrative Agent and (y) shall be evidenced by promissory notes in form and substance reasonably satisfactory to the Administrative Agent; and
(viii) in the case of the Parent Guarantor Borrower and the Borrower, Debt consisting of Customary Carve-Out Agreements;its Subsidiaries,
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest thereinDebt under the Loan Documents (which, in the case of Secured Hedge Agreements, should be consistent with the terms of Section 5.02(b)(i)(A)),
(B) is not Debt secured by any Lien on any Borrowing Base Asset, and (CLiens permitted by Section 5.02(a)(iv) shall not to exceed in the aggregate $30,000,000 at any time outstanding 10% of Total Asset Value; andoutstanding,
(viiiC) unsecured Capitalized Leases not to exceed in the aggregate $50,000,000 at any time outstanding,
(D) the Surviving Debt, and any Debt extending the incurrence maturity of, or refunding or refinancing, in whole or in part, any Surviving Debt and any Debt in respect of which would the Senior Subordinated Notes or the Senior Notes, 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 not otherwise prohibited by the Loan Documents, provided further that the principal amount of such Surviving Debt or Debt in respect of the Senior Subordinated Notes or the Senior Notes 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, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a Default under Section 5.04.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 Loan Parties or the Lender Parties than the terms of any agreement or instrument governing the Debt being extended, refunded or refinanced and the interest rate applicable to any such extending, refunding or refinancing Debt does not exceed the then applicable market interest rate,
Appears in 2 contracts
Sources: Credit Agreement (Esterline Technologies Corp), Credit Agreement (Esterline Technologies Corp)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred as required by this Agreement or incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;.
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 2 contracts
Sources: Credit Agreement (Hersha Hospitality Trust), Credit Agreement (Hersha Hospitality Trust)
Debt. Create, 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 Borrower,
(A) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or commodity pricing, in each case incurred in the ordinary course of business and consistent with prudent business practice, and
(B) Debt owed to a direct or indirect wholly-owned Subsidiary of the Borrower, which Debt (x) shall constitute Pledged Debt, (y) shall be subordinated to any Debt of the Borrower under the Loan Documents;Documents on terms reasonably acceptable to the Administrative Agent and (z) if evidenced by promissory notes, shall be in form and substance satisfactory to the Administrative Agent and 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 Pledge Agreement.
(ii) in the case of any Loan Party or any Subsidiary of a Loan Partythe Borrower, Debt owed to any other Loan Party the Borrower or any wholly-to a wholly owned Subsidiary of any Loan Partythe Borrower, provided that, in each case, to the extent such Debt exceeds $10,000,000 in the aggregate, 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, which Agent and such promissory notes shall (unless payable to the Borrower) by their terms be subordinated to 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 Pledge Agreement; and
(iii) the Guaranties and, in the case of the Loan Parties and their Subsidiaries,
(A) Debt under the Loan Documents;
(iiiB) the Surviving Debt described on Schedule 4.01(n) hereto So long as no Default has occurred and any Refinancing Debt extendingis continuing, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
; provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (B) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (1B) in the event that a Default has occurred and is continuing;
(C) Capitalized Leases (other than those permitted by clause (F) below) not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease Leases to which any Subsidiary of a Loan Party is a party, any Contingent Obligation Debt of such the Loan Party of the type described in clause (j) of the definition of “Debt” guaranteeing the Obligations of such Subsidiary under such the Capitalized Lease,
Leases permitted under this clause (C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and);
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in Person that becomes a Default under any Subsidiary of the covenants contained Borrower after the date hereof in accordance with the terms of Section 5.045.02(f) which Debt does not exceed $10,000,000 in the aggregate and is existing at the time such Person becomes a Subsidiary of the Borrower;
(vE) So long as no Default has occurred and is continuing, other unsecured Debt of the Borrower in an aggregate principal amount not to exceed $10,000,000 at any one time outstanding; provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (E) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (E) in the case of the Parent Guarantor event that a Default has occurred and the Borrower, Debt consisting of Customary Carve-Out Agreementsis continuing;
(viF) endorsements the Surviving Debt, and any Debt extending the maturity of, or 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 and 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;
(G) Contingent obligations of the Loan Parties or any of their Subsidiaries in an amount not to exceed $10,000,000; provided that such contingent obligations are unsecured;
(H) Endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viiI) recourse secured Debt, provided that such Debt (A) is in respect of letters of credit in an aggregate amount not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate $2,000,000 at any time outstanding 10% outstanding;
(J) Debt in respect of Total Asset Valueindemnification obligations in connection with bonds and letters of credit related to self insurance and insurance programs and policies of the Loan Parties and their respective Subsidiaries; and
(viiiK) unsecured Debt Obligations in respect of the incurrence Borrower’s Non-Qualified Deferred Compensation Plan to the extent of which would not result in a Default under Section 5.04assets of such plan are on the Borrower’s balance sheet.
Appears in 2 contracts
Sources: Credit Agreement (CBRL Group Inc), Credit Agreement (CBRL Group Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv5.02(a)(iii) not to exceed in the aggregate $10,000,000 5,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 5,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) the Existing Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Existing Debt,
(D) Debt in respect of Hedge Agreements entered into by the Borrower and designed to hedge against fluctuations in interest rates or foreign exchange rates incurred as required by this Agreement or incurred in the ordinary course of business and consistent with prudent business practices, and,
(DE) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement, and
(F) with respect to the Borrower or any Subsidiary that does not own a Borrowing Base Asset only, Recourse Debt not secured by any Lien in an amount not to exceed 5% of Total Asset Value at any one time outstanding;
(iv) Recourse Debt of the covenants contained Borrower and/or Property-Level Subsidiaries of the Borrower (exclusive of any Subsidiary that owns a Borrowing Base Asset) and the JV Pro Rata Share of Recourse Debt of any Joint Venture, in each case as such Recourse Debt may be secured by Liens permitted by Section 5.045.02(a)(vi), in respect of which the Borrower or the Parent Guarantor has guaranteed the obligations of the Borrower and/or such Property-Level Subsidiary or Joint Venture under such Recourse Debt and the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of under Customary Carve-Out Agreements;
(vi) with respect to the Borrower or any Subsidiary that does not own a Borrowing Base Asset only, Debt under a senior unsecured term loan, the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement;
(vii) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;; and
(viiviii) recourse secured Debt, provided that such any other Debt (A) is not recourse to exceed $5,000,000 in the aggregate at any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) time outstanding in respect of all Loan Parties and which is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 2 contracts
Sources: Credit Agreement (Campus Crest Communities, Inc.), Credit Agreement (Campus Crest Communities, Inc.)
Debt. Create, incur, assume or suffer to existassume, permit, guarantee, or permit any of its Subsidiaries otherwise become or remain, directly or indirectly, liable with respect to create, incur, assume or suffer to exist, any Debt, except:
(ia) Debt under evidenced by this Agreement and the other Loan Documents;
(b) Debt incurred by any Loan Party; provided that at the time of incurrence of such Debt and after giving pro forma effect thereto, (i) the Borrower would be in compliance with Section 6.13 and (ii) no Unmatured Event of Default or Event of Default has occurred and is continuing at the time of such incurrence; provided, further, that the Loan Parties shall cause any Debt incurred pursuant to this clause (b) and owed to any Subsidiary that is not a Loan Party to be subordinated to the Loans pursuant to the Global Intercompany Note;
(c) Debt in the case form of deferred compensation (including indemnification obligations, obligations in respect of purchase price adjustments, earnouts, non-competition agreements and other contingent arrangements) or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any acquisition or other Investment permitted under this Agreement;
(d) Debt of (i) any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party, (ii) any Subsidiary that is not a Loan Party or to any wholly-owned other Subsidiary of that is not a Loan Party and (iii) any Subsidiary that is not a Loan Party to a Loan Party; provided, provided that, in each case, such that the Loan Parties shall cause any Debt incurred pursuant to this clause (yd) shall be on terms acceptable and owed to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory any Subsidiary that is not a Loan Party to the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of Loans pursuant to the Loan Parties under the Loan DocumentsGlobal Intercompany Note;
(iiie) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extendingobligations in respect of self-insurance and obligations in respect of bids, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party tenders, trade contracts (other than the Parent Guarantor) and its Subsidiaries,
for payment of Debt), leases (A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any other than Capitalized Lease to which any Subsidiary Obligations), public or statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt like nature and similar obligations or obligations in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course letters of business and consistent with prudent business practicescredit, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection bank guarantees or similar transactions instruments related thereto, in each case provided in the ordinary course of business;
(viif) recourse secured DebtDebt arising in connection with customary cash management services, provided that such including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements, and cash pooling arrangements among the Borrower or one or more Subsidiaries of the Borrower and a financial institution (or an in-house bank) and Debt rising from the honoring by a bank or financial institution of a check, draft or similar instrument drawn against insufficient funds, in each case in the ordinary course of business;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of Loan Parties and Subsidiaries;
(h) Debt of a Loan Party or any Subsidiaries under (A) is any Cash Management Agreement in the ordinary course of business or (B) any Hedging Agreement so long as such Hedging Agreements are used solely as a part of its normal business operations as a risk management strategy or hedge against changes resulting from market operations and not recourse as a means to speculate for investment purposes on trends and shifts in financial or commodities markets; provided, solely in respect of this clause (h)(ii), to the extent and owed to any Subsidiary that is not a Loan Party, the payment of any obligations in respect thereof shall be subordinated to the prior payment in full of the Obligations on terms and conditions reasonably satisfactory to the Agent;
(i) Debt outstanding (or, in the case of a revolving facility, committed) on the Closing Date and (other than in the case of intercompany Debt) described in Schedule 6.1 hereof and Refinancing Debt in respect thereof;
(j) Debt incurred in the ordinary course of business under incentive, non-compete, consulting, deferred compensation, or other similar arrangements incurred by any Loan Party or Subsidiary;
(k) Debt incurred in the ordinary course of business with respect to the financing of insurance premiums;
(l) customary obligations of a general partner, manager or member of a Fund in respect of subscription credit facilities or similar credit facilities of such Fund relating to Liens granted as permitted by Section 6.2(h);
(m) other Debt of Subsidiaries (other than any Loan Party) in an aggregate principal amount not to exceed, at the time of incurrence of such other Debt, the greater of (i) $25,000,000 and (ii) 30% of Consolidated Adjusted EBITDA for the most recent four fiscal quarter period with respect to which financial statements have been, or were required to have been, delivered pursuant to Section 5.2(a) or (b), so long as after giving pro forma effect thereto, (i) the Borrower would be in compliance with Section 6.13 and (ii) no Unmatured Event of Default or Event of Default has occurred and is continuing at the time of incurrence of any such other Debt;
(n) other Debt in an aggregate amount outstanding at any time not in excess of $10,000,000;
(o) guaranties by Loan Parties and Subsidiaries in respect of real estate lease obligations incurred in the ordinary course of business;
(p) guaranties by the Borrower of Debt of a Guarantor or guaranties by a Guarantor of Debt of the Borrower with respect to, in each case, to Debt otherwise permitted pursuant to this Section 6.1; provided, that owns if the Debt that is being guaranteed is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;
(q) Purchase Money Debt;
(r) Debt in respect of letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued or created in the ordinary course of business or consistent with past practice, in each case, in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other reimbursement-type obligations regarding workers’ compensation claims; and
(s) Debt assumed after the Closing Date in connection with any Borrowing Base Asset Permitted Acquisition (or similar Investment permitted hereunder); provided that (A) the only obligors with respect to any direct Debt assumed pursuant to this clause (i) shall be those Persons who were obligors of such Debt prior to such Permitted Acquisition or indirect Investment (or in the case of a purchase of assets not constituting Equity Interest thereinInterests, the purchaser of such assets), (B) such Debt was not created in contemplation of such Permitted Acquisition or Investment, (C) to the extent such Debt is not secured by any a Lien on any Borrowing Base Assetassets or property of the Borrower or any of its Subsidiaries, it shall be subject to any applicable limitations set forth in Section 6.2(u) and (CD) shall not exceed after giving pro forma effect thereto, the Borrower would be in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under compliance with Section 5.046.13.
Appears in 2 contracts
Sources: Increase Joinder and First Amendment (P10, Inc.), Credit Agreement (P10, Inc.)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any each Loan Party or any Subsidiary of a Loan Party(other than the Parent Guarantor), Debt owed to any other Loan Party (other than the Parent Guarantor) or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iiiii) in the Surviving case of any Subsidiary of a Loan Party, Debt described owed to any Loan Party (other than the Parent Guarantor) or to any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such Debt (y) shall be on Schedule 4.01(nterms acceptable to the Administrative Agent and (z) hereto shall be evidenced by promissory notes in form and any Refinancing Debt extendingsubstance satisfactory to the Administrative Agent, refunding or refinancing such Surviving Debtwhich promissory notes shall (unless payable to the Borrower) by their terms be subordinate to the Obligations of the Loan Parties under the Loan Documents;
(iviii) in the case of each Loan Party (other than the Parent Guarantor) and its 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 25,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 50,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease Leases to which any Subsidiary of a Loan Party is a party, any Contingent Obligation Debt of such Loan Party of the type described in clause (i) of the definition of "Debt" guaranteeing the Obligations of such Subsidiary under such Capitalized LeaseLeases,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $20,000,000 at any time outstanding;
(iii) (A) Capitalized Leases not to exceed in the aggregate $25,000,000 at any time outstanding, and (B) in the case of Capitalized Leases to which any Subsidiary of such Loan Party is a party, Debt of such Loan Party of the type described in clause (i) of the definition of “Debt” guaranteeing the Obligations of such Subsidiary under such Capitalized Leases;
(iv) the Surviving Debt, and any Refinancing Debt of any Surviving Debt;
(v) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates incurred in the ordinary course of business and consistent with prudent business practice;
(vi) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party the Revolving Credit Borrower or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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 AgentRevolving Credit Borrower, which promissory notes Debt shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2vii) in the case of any Capitalized Lease Non-Guarantor Subsidiary, Debt owed to which any the Revolving Credit Borrower or Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,Revolving Credit Borrower;
(Cviii) So long as no Default has occurred and is continuing or would result from such incurrence or issuance (unless the Net Cash Proceeds therefrom are applied to the prepayment of the Term B Advances pursuant to Section 2.06), Non-Recourse Debt under Mortgage Financings in respect of Hedge Agreements designed to hedge against fluctuations in interest rates Real Property Collateral or foreign exchange rates other Real Property of the Loan Parties and their Subsidiaries (other than the CMBS Subsidiaries);
(ix) unsecured Debt incurred in the ordinary course of business business, maturing within one year from the date incurred, and consistent with prudent business practicesaggregating on a Consolidated basis, andnot more than $25,000,000 at any one time outstanding;
(Dx) Non-Recourse Debt of the CMBS Subsidiaries under the CMBS Bridge Financing and the CMBS Mortgage Financings; provided, however, that the initial net cash proceeds thereof in excess of $900,000,000 (such excess amount being the “Excess CMBS Financing Proceeds”) shall be restricted in use to (A) up to $100,000,000 in the aggregate in (1) Investments in Southern California Office Real Properties comparable to the Revolving Credit Borrower’s existing portfolio which generate stabilized Net Operating Income returns of 7.0% on acquisition cost thereof (including, without limitation, the JV Pro Rata Share San Diego Tech Center) and (2) income-accretive Capital Expenditures for improvements on existing Southern California Office Real Properties of Nonthe Revolving Credit Borrower and its Subsidiaries which generate stabilized Net Operating Income returns of 7.0% on the amount expended, provided that such Office Real Property is subject to a Mortgage or that the Equity Interests in a Property-Recourse Level Subsidiary that directly or indirectly owns such Real Property constitute Pledged Equity, (B) up to $25,000,000 in required reserves for future leasing costs, (C) up to $45,000,000 to prepay in full the Park Place Facility, (D) prepay the Term B Advances pursuant to Section 2.06(a) (the Investments and uses described in the foregoing sub-clauses (A) through (C) and this sub-clause (D) being, collectively, the “Specified Applications”) and (E) to repay Revolving Credit Advances pursuant to Section 2.06(a); provided, further, that the aggregate amount used pursuant to clauses (A), (B), (C) and (E) of the foregoing proviso shall not exceed the sum of (1) $125,000,000 and (2) an amount equal to the amount used pursuant to clause (C) of the foregoing proviso in Bosa Sale Proceeds; and provided, further, that prior to the making of any Investment or application of any reserve referred to in the preceding proviso, such excess amount shall be deposited in the Collateral Account to cash collateralize the Facilities, and any such Investment, when made, shall secure the Facilities, in each case on terms acceptable to the Administrative Agent (it being understood that pledges of Equity Interests in the Property-Level Subsidiary that owns the Real Property purchased through such Investment would be acceptable);
(xi) Debt of any Joint VenturePerson that becomes a Subsidiary of the Revolving Credit Borrower after the date hereof in accordance with the terms of Section 5.02(f), which Debt is existing at the time such Person becomes a Subsidiary of the Revolving Credit Borrower (other than Debt incurred solely in contemplation of such Person becoming a Subsidiary of the Revolving Credit Borrower);
(xii) Debt consisting of Guarantee Obligations in respect of Assets other than Borrowing Base Assets, the incurrence of which would Permitted Construction Financing in an aggregate amount not result in a Default under any of the covenants contained in Section 5.04to exceed $50,000,000;
(vxiii) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions Limited Recourse Guarantee Obligations incurred in the ordinary course of business;
(viixiv) recourse secured DebtDebt incurred to finance customary leasehold improvements required by the terms of, provided that such or as a condition to the entering into of, Tenant Leases (including, with respect to the 777 Tower, Guarantee Obligations of the General Partner in an aggregate not to exceed $10,000,000);
(xv) Guarantee Obligations consisting of master leases with Subsidiaries and guaranties covering rent abatements or other rent concessions or rent and other income with respect to vacancies or other property-related sources of potential revenue in an aggregate amount not to exceed $15,000,000 in any fiscal year;
(xvi) Permitted Construction Financing and Refinancing Debt of Permitted Construction Financing;
(Axvii) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the case of the TRS Subsidiaries, Guarantee Obligations incurred in the ordinary course of business of the TRS Subsidiaries arising under management, leasing and development agreements entered into by the TRS Subsidiaries relating to the provision of administrative and operational, management, leasing and/or development services, so long as the aggregate amount of such Guarantee Obligations does not at any time outstanding 10% exceed $50,000,000;
(xviii) Debt of Total Asset ValuePark Place MD under the Park Place Facility and Guarantee Obligations of the Revolving Credit Borrower and the General Partner in respect of the Park Place Facility in an aggregate principal amount not to exceed $45,000,000; and
(viiixix) unsecured Debt assumed as part of the incurrence purchase of which would the 777 Tower in an aggregate principal amount not result in a Default under Section 5.04to exceed $155,000,000.
Appears in 1 contract
Debt. Create, incur, assume guarantee or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, exist any Debt, except:
(i) Debt under the Loan DocumentsObligations;
(ii) Debt existing on the date hereof and set forth in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such Debt (ySection 7.2(a) 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan DocumentsDisclosure Schedule and Permitted Refinancings thereof;
(iii) the Surviving Senior Bank Debt described so long as the aggregate outstanding principal amount thereof does not exceed the lesser of (1) $75,000,000 and (2) the sum of (A) the Borrowing Base (as defined in the Senior Loan Agreement as in effect on Schedule 4.01(nthe date hereof) hereto and any Refinancing Debt extendingwhich, refunding or refinancing such Surviving if applicable, shall be calculated after giving effect to the Availability Block (as defined in the Senior Loan Agreement as in effect on the date hereof), plus (B) $3,000,000 of Bank Products constituting Senior Bank Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) Permitted Purchase Money Debt and its Subsidiaries,Permitted Refinancings thereof;
(Av) [Reserved];
(1) Debt that is in existence when a Person becomes a Subsidiary or that is secured by Liens permitted an asset when acquired by Section 5.02(a)(iv) an Obligor or Subsidiary, as long as such Debt was not to exceed incurred in contemplation of such Person becoming a Subsidiary or such acquisition, so long as the aggregate principal amount of all Debt incurred in reliance on this clause (vi) shall not exceed $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstandingtime, and (2) Debt arising from agreements providing for indemnification, adjustment of purchase price, earnout or other similar obligations, in each case, incurred or assumed in connection with the case acquisition or disposition of any Capitalized Lease to which any Subsidiary of business, assets or a Loan Party is a partySubsidiary, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,and in each case, Permitted Refinancings thereof;
(Cvii) Permitted Contingent Obligations;
(viii) [Reserved];
(ix) Debt in respect of Hedge Hedging Agreements designed entered into in the Ordinary Course of Business and not for speculative purposes;
(x) Debt incurred in connection with the financing of insurance premiums;
(xi) Debt owed to hedge against fluctuations any Person providing workers’ compensation, health, disability or other employment benefits or property, casualty or liability insurance, pursuant to -50- reimbursement or indemnification obligations to such Person, in interest rates or foreign exchange rates each case incurred in the ordinary course Ordinary Course of business and consistent with prudent business practices, andBusiness;
(Dxii) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assetscompletion bonds, performance bonds, bid bonds, appeal bonds and surety bonds and similar obligations and reimbursement obligations under letters of credit securing completion bonds, performance bonds, bid bonds, appeal bonds, surety bonds, operating leases and similar obligations, in each case, provided in the incurrence Ordinary Course of which would not result in a Default under any of the covenants contained in Section 5.04Business;
(vxiii) Debt incurred in connection with cash management services, including treasury, depository, overdraft, credit or debit card, purchasing cards, electronic funds transfer, automatic clearing house arrangements, cash pooling arrangements, netting services, merchant services and other similar arrangements of the Company or any Subsidiary, in each case in the case Ordinary Course of the Parent Guarantor and the Borrower, Business in an aggregate principal amount for all such Debt consisting of Customary Carve-Out Agreementsunder this clause (xiii) not to exceed $2,000,000;
(vixiv) endorsements reimbursement obligations in connection with letters of negotiable instruments credit issued for deposit the account of the Company or collection or similar transactions its Subsidiaries in the ordinary course of businessan aggregate amount to not exceed $3,000,000;
(viixv) recourse secured DebtDebt incurred as a result of endorsing negotiable instruments received in the Ordinary Course of Business;
(xvi) intercompany Debt (1) among any Obligor and any other Obligor, provided that so long as such Debt is subordinated to the Obligations (2) owed by any Obligor to a Subsidiary that is not an Obligor, so long as (A) such Debt is not recourse subordinated to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, the Obligations and (B) the aggregate amount of all Debt under this clause (2) does not exceed $500,000, or (3) owed by any Subsidiary that is not secured by an Obligor to any Lien on any Borrowing Base AssetObligor, so long as the aggregate amount of all Debt under this clause (3) does not exceed $500,000;
(xvii) Debt pursuant to the Hercules Facility; provided that the Refinancing occurs prior to or substantially concurrently with the occurrence of the Initial Closing;
(xviii) other Debt so long as the outstanding aggregate principal amount of all Debt under this clause (xvii) does not exceed $2,000,000; and (C) provided that the Company and its Subsidiaries shall not exceed be permitted to incur any Convertible Debt or any Subordinated Debt in reliance on the aggregate at any time outstanding 10% of Total Asset Value; and
foregoing paragraphs (viiii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04to and including (xvii).
Appears in 1 contract
Sources: Secured Convertible Promissory Notes and Note Purchase Agreement (Proterra Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates commodity pricing, in each case incurred in the ordinary course of business and consistent with prudent business practices, andpractice,
(Diii) Non-Recourse Debt owed to a Loan Party;
(including, without limitation, iv) Debt incurred by the JV Pro Rata Share Borrower (which may be guaranteed by the Guarantors) in connection with the issuance of Non-Recourse Debt unsecured senior notes (the “Permitted Senior Notes”); provided that (1) no Default or Event of Default shall have occurred and be continuing at the time of any Joint Venturesuch issuance or would be caused by such issuance, (2) the Consolidated Total Leverage Ratio shall not exceed 3.50 to 1.00 on a pro forma basis and the Borrower shall otherwise be in respect of Assets other than Borrowing Base Assetspro forma compliance with the financial covenants set forth in Section 5.04, in each case after giving effect to the incurrence of which would such Debt, and shall provide the Administrative Agent and Lenders with a pro forma compliance certificate evidencing such compliance at least 10 days (or such shorter period as may be agreed to by the Administrative Agent) in advance of any such Debt issuance, (3) such Debt shall rank no higher than pari passu with the Obligations, (4) the maturity of such Debt shall be at least six (6) months after the latest Termination Date and maturity of any other term loan or facility hereunder, (5) the terms of such Debt may not result in a Default under any restrict, limit or otherwise encumber the ability of the covenants contained Borrower or any Subsidiary to grant Liens in Section 5.04;favor of the Administrative Agent or any Lender under this Agreement or any other Loan Document, and (6) such Debt shall otherwise be issued on terms and conditions reasonably satisfactory to the Administrative Agent.
(v) in the case of the Parent Guarantor and any Subsidiary of the Borrower, (a) with respect to any Subsidiary of the Borrower that is a Loan Party, Debt consisting owed to the Borrower or to any other Loan Party and (b) with respect to any Subsidiary of Customary Carve-Out Agreementsthe Borrower that is not a Loan Party, Debt owed to any other Subsidiary of the Borrower that is not a Loan Party;
(vi) endorsements so long as no Default has occurred and is continuing, Debt secured by Liens permitted by Section 5.02(a)(iv) in an aggregate principal amount not to exceed, at the time of incurrence of any such Debt (and measured after giving effect to the incurrence thereof), the greater of (x) $25,000,000 and (y) 10.0% of Consolidated EBITDA (as of the last day of the most recently ended four fiscal quarter period for which financial statements have been delivered pursuant to Section 5.03(b) or 5.03(c)); provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (B) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (B) in the event that a Default has occurred and is continuing;
(vii) Capitalized Leases (other than those permitted by clause (x) below) in an aggregate principal amount not to exceed, at the time of incurrence of any such Capitalized Lease (and measured after giving effect to the incurrence thereof), the greater of (x) $25,000,000 and (y) 10.0% of Consolidated EBITDA (as of the last day of the most recently ended four fiscal quarter period for which financial statements have been delivered pursuant to Section 5.03(b) or 5.03(c)), and in the case of Capitalized Leases to which any Subsidiary of a Loan Party is a party, Debt of the Loan Party of the type described in clause (j) of the definition of Debt guaranteeing the obligations of such Subsidiary under the Capitalized Leases permitted under this clause (vii);
(viii) Debt of any Person that becomes a Subsidiary of the Borrower after the Effective Date in accordance with the terms of Section 5.02(f) which Debt is existing at the time such Person becomes a Subsidiary of the Borrower (and is not incurred in connection with or in contemplation of such Person becoming a Subsidiary of the Borrower), in an aggregate principal amount not to exceed, at the time of incurrence of any such Debt (and measured after giving effect to the incurrence thereof), the greater of (x) $25,000,000 and (y) 10.0% of Consolidated EBITDA (as of the last day of the most recently ended four fiscal quarter period for which financial statements have been delivered pursuant to Section 5.03(b) or 5.03(c));
(ix) so long as no Default has occurred and is continuing, other unsecured Debt of the Borrower in an aggregate principal amount not to exceed, at the time of incurrence of any such Debt (and measured after giving effect to the incurrence thereof), the greater of (x) $25,000,000 and (y) 10.0% of Consolidated EBITDA (as of the last day of the most recently ended four fiscal quarter period for which financial statements have been delivered pursuant to Section 5.03(b) or 5.03(c)); provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (ix) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (ix) in the event that a Default has occurred and is continuing;
(x) the Surviving Debt set forth on Schedule 5.02(b), and any Debt extending the maturity of, or 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;
(xi) contingent obligations of the Loan Parties or any of their Subsidiaries in an aggregate principal amount not to exceed, at the time of incurrence of any such Debt (and measured after giving effect to the incurrence thereof), the greater of (x) $25,000,000 and (y) 10.0% of Consolidated EBITDA (as of the last day of the most recently ended four fiscal quarter period for which financial statements have been delivered pursuant to Section 5.03(b) or 5.03(c)); provided that such contingent obligations are unsecured;
(xii) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viixiii) recourse secured DebtDebt in respect of letters of credit in an aggregate principal amount not to exceed, provided that at the time of incurrence of any such Debt (and measured after giving effect to the incurrence thereof), the greater of (x) $50,000,000 and (y) 15.0% of Consolidated EBITDA (as of the last day of the most recently ended four fiscal quarter period for which financial statements have been delivered pursuant to Section 5.03(b) or 5.03(c));
(xiv) Debt in respect of indemnification obligations in connection with bonds and letters of credit related to self insurance and insurance programs and policies of the Loan Parties and their respective Subsidiaries;
(xv) obligations in respect of the Borrower’s Non-Qualified Deferred Compensation Plan to the extent of assets of such plan are on the Borrower’s balance sheet;
(xvi) Guarantee obligations of the Guarantors in respect of Debt of the Borrower permitted pursuant to Section 5.02(b)(iv);
(xvii) Permitted Convertible Indebtedness; provided, that (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset no Default or any direct Event of Default shall exist immediately before or indirect Equity Interest thereinimmediately after giving effect thereto on a pro forma basis, (B) the Borrower shall deliver to the Administrative Agent a certificate from a Responsible Officer, in form and detail reasonably satisfactory to the Administrative Agent, confirming the foregoing and demonstrating that the Consolidated Total Leverage Ratio does not exceed 3.50 to 1.00 and the Borrower is in compliance with the other financial covenants set forth in Section 5.04, in each case after giving effect thereto on a pro forma basis, (C) such Debt is not secured at any time guaranteed by any Lien on Subsidiary that is not a Guarantor, (D) the terms thereof may not restrict, limit or otherwise encumber the ability of the Borrower or any Borrowing Base AssetSubsidiary to grant Liens in favor of the Administrative Agent or any Lender under this Agreement or any other Loan Document, and (CE) no such Debt (other than the 2021 Convertible Notes, in the case of the maturity thereof) shall not exceed (x) have a scheduled maturity or require any regularly scheduled amortization payment to be made prior to the date that is 91 days after the Termination Date with respect to the Revolving Credit Facility or maturity of any other term loan or facility hereunder or (y) be subject to any mandatory redemption, mandatory repurchase or other mandatory prepayments of principal (including early conversion triggers) other than those that, in the aggregate at Borrower’s good faith judgment, are customary for such Debt (it being understood that any time outstanding 10% of Total Asset Valuemandatory redemption, mandatory repurchase or other mandatory prepayments contained in the 2021 Convertible Notes shall be deemed customary in the Borrower’s good faith judgment); and
(viiixviii) unsecured other Debt not contemplated by the incurrence above provisions; provided that (A) no Default or Event of which would Default shall exist immediately before or immediately after giving effect thereto, (B) the Consolidated Total Leverage Ratio shall not result exceed 3.00 to 1.00 on a pro forma basis after giving effect thereto, (C) the Consolidated Senior Secured Leverage Ratio shall not exceed 2.75 to 1.00 on a pro forma basis after giving effect thereto, (D) such Debt shall not have a maturity or be subject to any amortization payments or any mandatory prepayments or sinking fund payments, in a Default each case prior to the date that is at least six (6) months after the latest Termination Date and maturity of any other term loan or facility hereunder, (E) such Debt shall rank no higher than pari passu with the Obligations, (F) the terms of such Debt may not restrict, limit or otherwise encumber the ability of the Borrower or any Subsidiary to grant Liens in favor of the Administrative Agent or any Lender under Section 5.04this Agreement or any other Loan Document and (G) such Debt is on terms and conditions that are not materially more restrictive than the terms and conditions of this Agreement and the other Loan Documents and shall otherwise be issued on terms and conditions reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Cracker Barrel Old Country Store, Inc)
Debt. CreateNot, incur, assume or suffer to exist, or and not permit any of its Subsidiaries to other Loan Party to, create, incur, assume or suffer to exist, exist any Debt, except:
(ia) Debt Obligations under this Agreement and the other Loan Documents;
(b) Debt secured by Liens permitted by Section 11.2(d); provided that the aggregate amount of all such Debt at any time outstanding shall not exceed $2,000,000;
(i) unsecured Debt owing by any Borrower to any other Loan Party, (ii) in the case of unsecured Debt owing by any Loan Party or any (other than a Borrower) which is a Wholly-Owned Subsidiary of a Loan Party, Debt owed to any other Loan Party (other than a Borrower), (iii) unsecured Debt owing by any Loan Party (other than a Borrower or a Wholly-Owned Subsidiary) to any whollyother Loan Party, in an aggregate amount at any time outstanding not to exceed $3,000,000 among all Loan Parties, and (iv) unsecured Debt owing by any Loan Party to a First-owned Tier Foreign Subsidiary of any Loan Party, in an aggregate amount at any time outstanding not to exceed $3,000,000 among all Loan Parties; provided that, that in each caseof the cases of (i), (ii) and (iii) above, any such Debt (y) shall be on terms acceptable evidenced by a demand note in the form of Exhibit H attached hereto and pledged and delivered to the Administrative Agent pursuant to the Collateral Documents as additional collateral security for the Obligations; provided, further that in each of the cases of clause (i), (ii) and (ziii) any such Debt shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under hereunder in a manner reasonably satisfactory to the Loan DocumentsAdministrative Agent (it being agreed that the subordination provisions set forth in the demand note referred to above shall be deemed to be reasonably satisfactory to the Administrative Agent);
(iiid) unsecured Subordinated Debt (other than Debt described in clause (c) above) in an amount at any time outstanding not to exceed $7,500,000;
(e) unsecured Hedging Obligations for bona fide hedging purposes and not for speculation;
(f) Debt existing on the Surviving Debt date hereof described on Schedule 4.01(n) hereto 9.26 and any Refinancing Debt extendingextension, refunding renewal or refinancing such Surviving Debtthereof so long as neither the principal amount thereof is increased, the weighted average life to maturity decreased or, if secured, any additional collateral is granted as security therefor;
(ivg) in the case Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,initial Loans hereunder);
(Ah) Debt secured by Liens unsecured Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers in connection with Permitted Acquisitions and purchasers in connection with dispositions permitted by under Section 5.02(a)(iv11.4;
(i) not up to exceed in the aggregate $10,000,000 2,500,000 at any time outstanding,outstanding of Acquired Debt assumed in Permitted Acquisitions which, if secured, the Liens thereunder would be of a type permitted pursuant to Section 11.2(d);
(Bj) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) unsecured Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates bid, performance or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practicessurety, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection appeal or similar transactions bonds issued for the account of and completion guarantees provided by the Loan Parties in the ordinary course of business;
(viik) recourse secured DebtDebt arising from the honoring by a bank or other financial institution of a check, provided draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business; provided, however, that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% extinguished within five Business Days of Total Asset Valueincurrence; and
(viiil) unsecured Debt arising in connection with endorsement of instruments for deposit in the incurrence ordinary course of which would not result in a Default under Section 5.04business.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan PartyParty (other than an Excluded Subsidiary), provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(ivii) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section 5.02(a)(iv5.02(a)(iii) not to exceed in the aggregate $10,000,000 5,000,000 at any time outstanding,
(B) (1) Capitalized Leases (other than with respect to Real Property) not to exceed in the aggregate $10,000,000 5,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease Leases (other than with respect to Real Property) to which any Subsidiary of a Loan Party is a party, any Contingent Obligation Debt of such Loan Party of the type described in clause (i) of the definition of “Debt” guaranteeing the Obligations of such Subsidiary under such Capitalized LeaseLeases,
(CD) the Surviving Debt described on Schedule 4.01(o) hereto and any Refinancing Debt, extending, refunding or refinancing such Surviving Debt,
(E) Debt in respect of Hedge Agreements entered into by the Borrower and designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, andpractice,
(DF) unsecured Debt incurred in the ordinary course of business for borrowed money, maturing within one year from the date created, and aggregating, on a Consolidated basis, not more than $5,000,000 at any one time outstanding,
(G) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Unencumbered Assets, the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement, and
(H) Recourse Debt not secured by any Lien in an amount not to exceed in the aggregate the sum of (1) 5% of Total Asset Value, plus (2) the amount, if any, by which $200,000,000 exceeds the aggregate amount of the Revolving Credit Facility; provided, however, that if at any time the Parent Guarantor shall maintain a Debt Rating from S&P of at least BBB – or a Debt Rating from ▇▇▇▇▇’▇ of at least Baa3, then the limitation set forth above in this clause (H) shall not apply and Recourse Debt shall be permitted to the extent the incurrence of such Recourse Debt would not result in a Default or Event of Default by the Parent Guarantor in respect of its financial covenants contained in Section 5.045.04(a);
(viii) in the case of the Parent Guarantor and the Borroweror any of its Subsidiaries, Debt consisting of under Customary Carve-Out Agreements;; and
(viiv) endorsements endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 1 contract
Sources: Revolving Credit Agreement (Digital Realty Trust, Inc.)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(ia) Debt under the Loan Documents;
(i) the Senior Notes in an aggregate principal amount of $500 million, the Senior Subordinated Notes in an aggregate principal amount of $850 million, the Senior Note Guarantees and the Senior Subordinated Note Guarantees (including any notes and guarantees issued in exchange therefor in accordance with the registration rights documents entered into in connection with the issuance of the Senior Notes, the Senior Subordinated Notes, the Senior Note Guarantees and the Senior Subordinated Note Guarantees) and (ii) Debt existing on the Original Closing Date and described on Schedule 7.2(b) to the Original Credit Agreement;
(c) Debt of the Borrower in respect of Swap Agreements (A) existing on the Original Closing Date and described in Schedule 7.2(b) to the Original Credit Agreement or (B) entered into from time to time after the Original Closing Date with counter parties that are Lenders at the time such Swap Agreement is entered into (or Affiliates of such Lender at such time); provided that, in all cases under this clause (c), all such Swap Agreements shall not be speculative in nature (including, without limitation, with respect to the term and purpose thereof);
(d) Debt of (A) the Borrower owing to any other Loan Party, and (B) any of the Subsidiaries owing to the Borrower or any other Loan Party to the extent permitted under Section 7.6(h); provided that any such Debt shall be evidenced by the Intercompany Note and, in the case of any Loan Party a loan or any Subsidiary of advance by a Loan Party, pledged by such Loan Party as Collateral pursuant to the Security Documents; provided, further, that such Debt of, or owed to, a Subsidiary that is not a Guarantor need not be evidenced by the Intercompany Note so long as the net amount of such Debt owed by all such Subsidiaries not evidenced by the Intercompany Note does not exceed $50,000,000;
(e) Debt incurred after the Original Closing Date and secured by Liens expressly permitted under Section 7.1(d) in an aggregate principal amount not to exceed, when aggregated with the principal amount of all Debt incurred under clause (f) of this Section 7.2, $135,000,000 or 7.5% of the Consolidated Tangible Assets of the Borrower and its Subsidiaries any other time outstanding;
(f) Capitalized Leases incurred after the Original Closing Date which, when aggregated with the principal amount of all Debt incurred under clause (e) of this Section 7.2, do not exceed $135,000,000 or 7.5% of the Consolidated Tangible Assets of the Borrower and its Subsidiaries at any time outstanding;
(g) Contingent Obligations of (A) the Borrower guaranteeing any obligations of any of the Loan Party or Parties, (B) any wholly-owned Subsidiary of the Borrower guaranteeing any obligations of the Borrower or a Loan Party, provided that, in each case, (C) any Subsidiary that is not a Loan Party guaranteeing any obligations of any other Subsidiary that is not a Loan Party (it being understood that if such Debt (ySubsidiary shall become a Loan Party then such Contingent Obligation shall no longer be permitted by this clause) shall be on terms acceptable to the Administrative Agent and (zD) shall be evidenced by promissory notes in form and substance satisfactory subject to the Administrative AgentSection 7.6(h), which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties guaranteeing any obligations of any Subsidiary that is not a Loan Party; provided that each such primary obligation is otherwise permitted under the terms of the Loan Documents;
(iiii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) New Senior Notes in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) an aggregate principal amount not to exceed $500,000,000 at any time outstanding and (ii) other unsecured Debt not otherwise permitted under this Section 7.2 in the an aggregate amount not to exceed $10,000,000 500,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(vi) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viij) recourse secured DebtDebt comprised of indemnities given by the Borrower or any of its Subsidiaries, or guarantees or other similar undertakings by the Borrower or any of its Subsidiaries entered into in lieu thereof, in favor of the purchaser of property and assets of the Borrower and its Subsidiaries being sold, leased, transferred or otherwise disposed of in accordance with this Agreement and covering liabilities incurred by the Borrower or its applicable Subsidiary in respect of such property and assets prior to the date of consummation of the sale, lease, transfer or other disposition thereof, which indemnities, guarantees or undertakings are required under the terms of the documentation for such sale, lease, transfer or other disposition;
(k) Debt comprised of liabilities or other obligations assumed or retained by the Borrower or any of its Subsidiaries from Subsidiaries of the Borrower that are, or all or substantially all of the property and assets of which are, sold, leased, transferred or otherwise disposed of pursuant to Section 7.5(c) or (f); provided that such liabilities or other obligations were not created or incurred in contemplation of the related sale, lease, transfer or other disposition;
(l) unsecured Subordinated Debt or Redeemable Preferred Interests not otherwise permitted under this Section 7.2; provided that the aggregate amount of the outstanding principal amount of such unsecured Subordinated Debt and the maximum amount of the purchase price, redemption price or liquidation value (whichever is greater) of such Redeemable Preferred Interests does not exceed $500,000,000 at any time; provided further that either (x) such Debt or Redeemable Preferred Interests are incurred to finance an Investment permitted under Section 7.6(e) or (y) the Net Cash Proceeds thereof are applied in accordance with Section 2.11(a);
(m) Debt extending the maturity of, or refunding, refinancing or replacing, in whole or in part, any Debt permitted by Section 7.2(b) or incurred pursuant to this clause (m); provided, however, that (A) is the aggregate principal amount of such extended, refunding, refinancing or replacement Debt shall not recourse be increased above the principal amount thereof and the premium, if any, thereon outstanding immediately prior to such extension, refunding, refinancing or replacement and the amount of any Subsidiary Guarantor that owns any Borrowing Base Asset reasonable fees and expenses incurred with respect to such extension, refunding, refinancing or any direct or indirect Equity Interest thereinreplacement, (B) is the direct and contingent obligors therefor shall not secured by any Lien on any Borrowing Base Assetbe changed as a result of or in connection with such extension, and refunding, refinancing or replacement, (C) such extended, refunding, refinancing or replacement Debt shall not mature prior to the stated maturity date or mandatory redemption date of the Debt being so extended, refunded, refinanced or replaced, (D) if the Debt being so extended, refunded, refinanced or replaced is subordinated in right of payment or otherwise to the obligations of the Borrower or any of its Subsidiaries under and in respect of the Loan Documents, such extended, refunding, refinancing or replacement Debt shall be subordinated to such Obligations to at least the same extent, (E) the terms (other than pricing) of such extended, refunding, refinancing or replacement Debt are no more burdensome to the Borrower taken as a whole than the terms of the Debt being extended, refunded, refinanced or replaced and (F) pro forma for such transaction the Borrower shall be in compliance with Section 7.16 and any other applicable covenant hereunder;
(n) secured and unsecured Debt of Subsidiaries of the Borrower that are not Guarantors in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(o) Debt comprised of guarantees given by the Borrower or any of its Subsidiaries in respect of any Special Purpose Licensed Entity which obligations, when aggregated with the aggregate amount of all Investments made under Section 7.6(i) hereof, shall not exceed in the aggregate $100,000,000 at any time outstanding 10% outstanding;
(p) Debt consisting of Total Asset ValueOperating Indebtedness; and
(viiiq) unsecured Debt in connection with Permitted Receivables Financings, provided that the incurrence of which would not result proceeds thereof are applied in a Default under accordance with Section 5.042.11(a).
Appears in 1 contract
Sources: Credit Agreement (Davita Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of ---- its Subsidiaries to create, incur, assume or suffer to exist, any Debt, exceptDebt other than:
(i) Debt under the Loan Documents;
(ii) in the case of the Parent Borrower,
(A) Debt in respect of Hedge Agreements with one or more Secured Parties designed to hedge against fluctuations in interest rates or 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 $__________ at any time outstanding,
(B) Subordinated Debt in an aggregate amount not to exceed $__________ at any time outstanding issued or incurred to finance, in whole or in part, any acquisition under Section 5.02(f)(viii) which Debt has been issued to the seller of the company or business being acquired at the time of such acquisition; provided, however, that such Debt shall be -------- ------- subordinated to the Obligations of the Loan Party or any Subsidiary of a Parties under the Loan Party, Documents on terms and conditions satisfactory to the Administrative Agent,
(C) Debt owed to any other Loan Party or any wholly-a wholly owned Subsidiary of any Loan Partythe Parent Borrower (other than the Sub Borrower), provided that, in each case, so long as no Default shall have occurred and be continuing at the time of issuance or incurrence of such Debt or would result therefrom and which 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, which Agent and such promissory notes shall (unless payable to the Borrower) by their terms be subordinated to pledged as security for the Obligations of the Loan Parties under the Loan Documents;
(iii) Documents of the Surviving Debt described on Schedule 4.01(n) hereto holder thereof and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in delivered to the case Administrative Agent pursuant to the terms of each Loan Party (other than the Parent Guarantor) and its SubsidiariesSecurity Agreement,
(AD) Debt secured by Liens permitted by Section 5.02(a)(iv) under the Senior Notes Indenture in an aggregate principal amount not to exceed $180,000,000 in the aggregate $10,000,000 at any time outstanding,original issue amount, and
(BE) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) unsecured Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, andaggregating not more than $5,000,000 at any one time outstanding,
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(vii) in the case of the Parent Guarantor and Borrower's Subsidiaries,
(A) in the Borrowercase of the U.K. Subsidiaries, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions owed to the Sub Borrower; provided that, in the ordinary course of business;
(vii) recourse secured Debteach case, provided that such Debt (Aw) -------- shall constitute Pledged Debt (as defined in the Security Agreement), (x) shall be on terms acceptable to the Administrative Agent, (y) shall be evidenced by promissory notes in substantially the form of Exhibit I-1 hereto, such promissory notes shall be secured by the personal property, and such other property as the Administrative shall require from time to time, of the makers thereof and such promissory notes shall be pledged as security for the Obligations under the Loan Documents to which the holder thereof is not recourse a party and delivered to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest thereinthe Administrative Agent pursuant to the terms of the Security Agreement and Section 5.01(o) and (z) the Obligations of the U.K. Subsidiaries under such promissory notes shall be guaranteed by the Foreign Guarantors pursuant to the Foreign Guaranty, and
(B) is not secured by in the case of any Lien on of the Subsidiaries of the Parent Borrower (other than the Sub Borrower and any Borrowing Base AssetExcluded Subsidiary), Debt owed to the Parent Borrower or to a wholly-owned Subsidiary of the Parent Borrower (other than the Sub Borrower and any Excluded Subsidiary); provided -------- that, in each case, such Debt (Cx) shall not exceed constitute Pledged Debt (as defined in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.Security Agreement),
Appears in 1 contract
Debt. Create, 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 CBI,
(A) Debt in respect of Hedge Agreements maintained under Section 5.01(o) and other Hedge Agreements not in violation of Section 5.02(n); provided that no Hedge Agreement with any Person other than a Lender Party (or Affiliate of a Lender Party) may be a Secured Hedge Agreement,
(B) Subordinated Debt of CBI evidenced by the Subordinated Debt Documents not to exceed the aggregate principal amount of the sum of (x) the principal amount of Debt permitted by Section 5.02(b)(iii)(D) which constitutes Subordinated Debt and (y) $500 million principal amount of additional Subordinated Debt issued after the date hereof at any time outstanding, and
(C) Paid in kind interest under the Loan DocumentsOak Hill Indenture as in effect on the date hereof;
(ii) in the case of any Loan Party or any Subsidiary of a Loan PartyCBI, Debt owed to any other Loan Party CBI or any wholly-to a wholly owned Subsidiary of any Loan PartyCBI, provided that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall be on terms acceptable to the Administrative Agent Agents and (z) shall be if evidenced by promissory notes notes, in form and substance satisfactory to the Administrative Agent, which Agents and such promissory notes shall (unless payable to the Borrower) by their terms be subordinated to pledged as security for the Obligations of the Loan Parties holder thereof under the Loan Documents;Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreements; and
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) CBI and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed $70,000,000 in the aggregate $10,000,000 principal amount at any time outstanding,
(B) (1C) Capitalized Leases not to exceed in the aggregate $10,000,000 75,000,000 at any time outstanding, and to the extent included in "Capitalized Leases" for purposes of GAAP, IRUs incurred in the ordinary course of business,
(D) the Surviving Debt (other than Debt under (iii)(C) above), and any Debt extending the maturity of, or refunding, renewal or refinancing, in whole or in part, any Surviving Debt, provided that the terms of any such extending, refunding, renewal 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 (1) the principal amount of such Surviving Debt shall not be increased above the principal amount thereof outstanding (plus accrued interest and fees thereon) immediately prior to such extension, refunding, renewal or refinancing, (2) the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding, renewal or refinancing, (3) such Surviving Debt as so refunded, refinanced or renewed shall not mature prior to the case stated maturity date or mandatory redemption date of any Capitalized Lease the Surviving Debt being so extended, refunded, refinanced or renewed and (4) if the Surviving Debt being so extended, refunded, refinanced or renewed is subordinated in right of payment or otherwise to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of the Borrowers or any of their Subsidiaries under and in respect of the Loan Documents, such Subsidiary under extended, refunded, renewed or refinanced Surviving Debt shall be subordinated to such Capitalized LeaseObligations to at least the same extent,
(CE) unsecured Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business for borrowed money or for the deferred purchase price of property or services, maturing after the Termination Date, and consistent with prudent business practicesaggregating, andon a Consolidated basis, not more than $65,000,000 in aggregate principal amount at any one time outstanding,
(DF) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;,
(viiG) recourse secured Debt, [Intentionally Omitted]
(H) unsecured short-term Debt in an aggregate principal amount not to exceed $10,000,000,
(I) Contingent Obligations of any of the Borrowers or any of the Subsidiary Guarantors guaranteeing all or any portion of the outstanding Obligations of any of the other Loan Parties; provided that such Obligations are not otherwise prohibited under the terms of the Loan Documents and such Contingent Obligations are unsecured,
(J) Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, consisting of debits and (C) shall not exceed credits between CBI and its Subsidiaries arising under CBI's centralized cash management system more particularly described in the aggregate at any time outstanding 10% of Total Asset Valueattached Schedule 5.02(b)(iii)(J); and
(viiiK) unsecured Debt of one or more Foreign Subsidiaries arising in the incurrence ordinary course of which would business in an aggregate principal amount not result to exceed $5,000,000 at any time outstanding; provided that all such Debt incurred pursuant to this subclause (K) shall be nonrecourse in a Default under Section 5.04all respects to the property and assets of the Loan Parties and their Subsidiaries (other than one or more of the Foreign Subsidiaries).
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, exceptDebt other than:
(i) Debt under the Loan Documents;
(ii) in the case of the Parent Borrower,
(A) Debt in respect of Hedge Agreements with one or more Secured Parties designed to hedge against fluctuations in interest rates or 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 $1,000,000 at any Loan Party or any time outstanding,
(B) Debt owed to a wholly owned Subsidiary of the Parent Borrower (other than the Sub Borrower), so long as no Default shall have occurred and be continuing at the time of issuance or incurrence of such Debt or would result therefrom and which Debt (x) shall, in the case of Debt owed to a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Partyconstitute Pledged Debt, provided that, in each case, such 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, in the case of Debt owed to a Loan Party, shall be pledged as security for the Obligations of the holder thereof under the Loan Documents and delivered to the Administrative Agent pursuant to the terms of the Security Agreement,
(C) Debt under the Senior Notes Indenture in an aggregate principal amount not to exceed $180,010,714 in original issue amount, and
(D) unsecured Debt incurred in the ordinary course of business and aggregating not more than $5,000,000 at any one time outstanding,
(ii) in the case of the Parent Borrower's Subsidiaries,
(A) in the case of the Specified Subsidiaries, Debt owed to the Sub Borrower; PROVIDED that, in each case, such Debt (w) shall constitute Pledged Debt, (x) shall be on terms acceptable to the Administrative Agent, which (y) shall be evidenced by promissory notes in substantially the form of Exhibit I-1 hereto, such promissory notes shall (unless payable be secured by the personal property, and such other property as the Administrative Agent shall require from time to time, of the makers thereof and such promissory notes shall be pledged as security for the Obligations of the Sub Borrower under the Loan Documents and delivered to the Administrative Agent pursuant to the terms of the Security Agreement and (z) the Obligations of the Specified Subsidiaries under such promissory notes shall be guaranteed by the Foreign Guarantors pursuant to the Foreign Guaranty, PROVIDED FURTHER, HOWEVER, that no such Debt may be incurred by any such Specified Subsidiary unless and until the requirements of clauses (w) through (z) above, in each case relating to such Specified Subsidiary, shall, in the judgment of the Administrative Agent, have been satisfied, and
(B) in the case of any of the Subsidiaries of the Parent Borrower (other than the Sub Borrower and any Excluded Subsidiary), Debt owed to the Parent 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 their promissory notes in substantially the form of Exhibit I-2 hereto or otherwise 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 and delivered to the Administrative Agent pursuant to the terms of the Security Agreement,
(iii) in the case of the Parent Borrower and its Subsidiaries (other than the Sub Borrower and the Excluded Subsidiaries),
(A) Debt under the Loan Documents,
(B) Subordinated Debt in an aggregate amount not to exceed $20,000,000 at any time outstanding issued or incurred to finance, in whole or in part, any acquisition under Section 5.02(f)(vii) which Debt has been issued to the seller of the company or business being acquired at the time of such acquisition; PROVIDED, HOWEVER, that such Debt shall be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) Documents on terms and conditions satisfactory to the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its SubsidiariesAdministrative Agent,
(AC) Debt secured by Liens permitted by Section 5.02(a)(iv5.02(a)(iii) not to exceed in the aggregate $10,000,000 5,000,000 at any time outstanding,
(BD) (1) Debt consisting of Capitalized Leases not to exceed in the aggregate $10,000,000 40,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(CE) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and[Intentionally Omitted],
(DF) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements indorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;, and
(viiG) recourse secured Debtunsecured Debt in an aggregate amount not to exceed $15,000,000 issued to members of the Marshalls Group in connection with the acquisition of Saturn pursuant to the terms of the Saturn Acquisition Agreement; PROVIDED, provided that THAT, such Debt shall be unsecured and shall otherwise be on terms and conditions acceptable to the Administrative Agent; and PROVIDED, FURTHER, THAT, the Parent Borrower or its Subsidiaries may grant to the members of the Marshalls Group a right of offset (such right of offset to be on terms and in form and substance acceptable to the Administrative Agent) of amounts due by members of the Marshalls Group to the Parent Borrower or any of its Subsidiaries against amounts which (x) are owed by Parent Borrower or its Subsidiaries to members of the Marshalls Group and (y) are overdue in respect of such Debt incurred pursuant to this Section 5.02(b)(iii)(G), and
(iv) in the case of the Sub Borrower,
(A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest thereinDebt under the Loan Documents, and
(B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed indorsement of negotiable instruments for deposit or collection or similar transactions in the aggregate at any time outstanding 10% ordinary course of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04business.
Appears in 1 contract
Debt. Create, 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 Borrower,
(A) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates, and not for speculative purposes, incurred in the ordinary course of business and consistent with prudent business practice,
(B) Debt owed to a wholly owned Subsidiary of the Borrower, which Debt (x) shall constitute Pledged Debt (unless owed to a Subsidiary that is not, or is not required to be, a Subsidiary Guarantor), (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 the Loan Documents;Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement,
(C) Debt in respect of the Senior Subordinated Notes, in an aggregate principal amount not to exceed $175,000,000 or, if the Senior <PAGE> 55 Subordinated Notes are not issued, Debt in respect of the Bridge Loans in an aggregate principal amount not to exceed $85,000,000, and
(D) Debt in respect of the Senior Notes, in an aggregate principal amount not to exceed $100,000,000.
(ii) in the case of any Loan Party or any Subsidiary of a Loan Partythe Borrower, Debt owed to any other Loan Party the Borrower or any wholly-to a wholly owned Subsidiary of any Loan Partythe Borrower, provided that, in each case, such Debt (x) shall constitute Pledged Debt (unless owed to a Subsidiary that is not, or is not required to be, a Subsidiary Guarantor), (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, which Agent and such promissory notes shall (unless payable to the Borrower) by their terms be subordinated to pledged as security for the Obligations of the Loan Parties holder thereof under the Loan Documents;Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement; and
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) Borrower and its Subsidiaries,
(A) Debt under the Loan Documents (which, in the case of Secured Hedge Agreements, should be consistent with the terms of Section 5.02(b)(i)(A)),
(B) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 15,000,000 at any time outstanding,
(B) (1C) Capitalized Leases not to exceed in the aggregate $10,000,000 15,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(CD) the Surviving Debt, and any Debt extending the maturity of, or refunding or refinancing, in whole or in part, any Surviving Debt and any Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates the Senior Subordinated Notes or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practicesSenior Notes, and
(D) Non-Recourse Debt (including, without limitation, provided that the JV Pro Rata Share of Non-Recourse Debt terms of any Joint Venture) such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are not otherwise prohibited by the Loan Documents, provided further that the principal amount of such Surviving Debt or Debt in respect of Assets other than Borrowing Base Assetsthe Senior Subordinated Notes or the Senior Notes shall not be increased above the principal amount thereof outstanding immediately prior to such extension, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor refunding or refinancing, and the Borrowerdirect and contingent obligors therefor shall not be changed, Debt consisting as a result of Customary Carve-Out Agreements;
or in connection with such extension, refunding or refinancing, provided still further that the terms relating to principal amount, amortization, maturity, collateral (viif any) endorsements and subordination (if any), and other material terms taken as a whole, of negotiable instruments for deposit any such extending, refunding or collection or similar transactions in the ordinary course of business;
(vii) recourse secured refinancing Debt, provided that such 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 Lender Parties than the terms of any agreement or instrument governing the Debt (A) is not recourse being extended, refunded or refinanced and the interest rate applicable to any Subsidiary Guarantor that owns any Borrowing Base Asset such extending, refunding or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall refinancing Debt does not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.then applicable market interest rate,
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;[Intentionally Omitted.]
(ii) in the case of any Loan Party or any Subsidiary of a Loan Partyany Borrower, Debt owed to any other Loan Party such Borrower or any wholly-to a wholly owned Subsidiary of any Loan Partysuch Borrower, provided 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, which Agent and such promissory notes shall (unless payable be pledged as security for the Obligations under the Loan Documents of the holder thereof and delivered to the Borrower) by their terms be subordinated Collateral Agent pursuant to the Obligations terms of the Security Agreement; and
(iii) in the case of the Loan Parties Parties;
(A) Debt under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 25,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,;
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, andSurviving Debt;
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements indorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viiE) recourse Debt under the Pre-Petition Inventory Financing Agreements;
(F) Debt under inventory flooring arrangements (other than the Pre-Petition Inventory Financing Agreements and the Floor Planning Arrangements PROVIDED THAT with respect to Floor Planning Arrangements, the terms of such arrangement including, without limitation, intercreditor arrangements are acceptable to the Administrative Agent) provided by a manufacturer of computer equipment, secured Debtby inventory and equipment bearing the trademark or tradename of such manufacturer, provided that that, (x) the aggregate principal amount of such Debt (A) is shall not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Assetexceed $10,000,000, and (y) the terms of such arrangement including, without limitation, intercreditor arrangements, are acceptable to the Administrative Agent;
(G) Debt extending the maturity of, or refunding or refinancing, in whole or in part, Debt described in clauses (C), (E) and (H) (other than the Pre-Petition Inventory Financing Agreements and Floor Planning Arrangements to which IBM Credit Corporation is a party) above, PROVIDED that (1) 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, (2) 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 connection therewith, are no less favorable in any material respect to the Loan Parties or the Lender Parties than the terms of any agreement or instrument governing the Debt being extended, refunded or refinanced and the interest rate applicable to such extending refunding or refinancing Debt does not exceed the then applicable market interest rate, (3) in the case of any Surviving Debt, the principal amount of such Surviving Debt shall not exceed be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing and (4) in the aggregate at case of any time outstanding 10% Pre-Petition Inventory Financing Agreement, the creditors thereof shall have entered into intercreditor agreements with the Collateral Agent and the applicable Borrower that are no less favorable in any material respect to the Loan Parties or the Lender Parties than the terms of Total Asset Value; andthe intercreditor agreement entered into with the creditor of such Pre-Petition Inventory Financing Agreement prior to the Filing Date being extended, refunded or refinanced;
(viiiH) unsecured Debt under the incurrence of which would not result in Floor Planning Arrangements;
(I) Debt secured by a Default under Section 5.04mortgage on the real property located at 1330 West Southern, Tempe, Arizona.
Appears in 1 contract
Sources: Debtor in Possession Credit Agreement (Microage Inc /De/)
Debt. Create, incur, assume or or, from and after the Effective Date, suffer to exist, or permit any of its Subsidiaries to create, incur, assume or or, from and after the Effective Date, suffer to exist, any Debt, except:
(i) in the case of the Borrower, Debt owed to a Loan Party, which Debt if evidenced by a promissory note shall, from and after the Effective Date, constitute Pledged Debt and such promissory note shall, from and after the Effective Date, be pledged as security for the Obligations of the holder thereof under the Loan Documents;Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement,
(ii) in the case of any Loan Party or any Subsidiary of the Borrower that is a Loan Party, Debt owed to any other Loan Party the Borrower or any wholly-owned Subsidiary of any to another Loan Party, provided that, in each case, such Debt (y) shall be on terms acceptable to the Administrative Agent and (z) shall be if evidenced by a promissory note shall, from and after the Effective Date, constitute Pledged Debt, and such promissory notes in form shall, from and substance satisfactory to after the Administrative AgentEffective Date, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to pledged as security for the Obligations of the holder thereof under the Loan Parties Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement.
(iii) in the case of the Borrower and its Subsidiaries,
(A) Debt under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(AB) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate (together with any Capitalized Leases permitted under clause (C) below) $10,000,000 at any time outstanding,, excluding, for purposes of such limitation, Debt secured by Liens described in Section 5.02(a)(iii);
(B) (1C) Capitalized Leases not to exceed in the aggregate (together with any Debt permitted under clause (B) above) $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a partyexcluding, any Contingent Obligation for purposes of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained secured by Liens described in Section 5.045.02(a)(iii);
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its ---- Subsidiaries to create, incur, assume or suffer to exist, any Debt, exceptDebt other than:
(i) Debt under in the Loan Documentscase of the Borrower, the Subordinated Debentures;
(ii) in the case of any Loan Party or any of the Subsidiary of a Loan PartyGuarantors, Debt owed to any other Loan Party the Borrower or any wholly-owned to another Subsidiary of any Loan PartyGuarantor, provided that, in each case, that (x) such Debt is -------- subordinated to any Debt of such Subsidiary Guarantor under the Loan Documents on terms and conditions acceptable to the Required Lenders and (y) shall be on terms acceptable such Debt is evidenced by a promissory note and such promissory note is pledged in favor of the Secured Parties pursuant to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;Security Agreement; and
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) Borrower and any of its Subsidiaries,
(A) Debt under the Loan Documents, (B) Debt of the Borrower and its Subsidiaries (other than D.C. Chartered Health Plan, Inc.) secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 500,000 at any time outstanding,
(B) (1i) Capitalized Leases entered into by the Borrower and its Subsidiaries (other than D.C. Chartered Health Plan, Inc.) not to exceed in the aggregate $10,000,000 5,000,000 at any time outstanding, and (2ii) in the case of any Capitalized Lease Leases to which any such Subsidiary of a Loan Party the Borrower is a party, any Contingent Obligation Debt of such Loan Party the Borrower of the type described in clause (j) of the definition of "Debt" guaranteeing the Obligations of such Subsidiary under such ---- Capitalized LeaseLeases,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, andand AMERICAS/2023134647.11 82
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit in any of its Subsidiaries to create, incur, assume manner become or suffer to existbe liable in respect of, any Debt, except:
(ia) Debt under the Loan Documents;
(iib) in Debt described in, or incurred under commitments described in, Schedule 6.02, and any Debt refinancing, extending, renewing or replacing any such Debt to the case extent the principal amount of such refinancing, extending, renewing or replacing Debt does not exceed the principal amount of such Debt being refinanced, extended, renewed or replaced;
(c) unsecured Debt of the Borrower or any Subsidiary owing to the Borrower or any other Subsidiary; provided that (i) any such Debt of any Loan Party or owing to any Subsidiary of that is not a Loan Party, Debt owed Party is subordinated to any other the obligations of such Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such Debt (y) shall be hereunder on terms acceptable to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory reasonably acceptable to the Administrative Agent, which (ii) any such Debt of any Subsidiary that is not a Loan Party owing to a Loan Party is permitted under Section 6.05 and (iii) if any such Debt of any Subsidiary that is not a Loan Party owing to a Loan Party is evidenced by a promissory notes note, such promissory note shall (unless payable be pledged to the Borrower) by their terms be subordinated to Administrative Agent for the Obligations benefit of the Loan Parties under the Loan DocumentsSecured Parties;
(iiid) Guarantees of the Surviving Borrower or any Subsidiary in respect of Debt described on Schedule 4.01(n) hereto and of the Borrower or any Refinancing Debt extending, refunding or refinancing such Surviving DebtWholly-Owned Subsidiary permitted hereunder;
(ive) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,Capital Leases incurred to make Capital Expenditures permitted pursuant to Section 6.14;
(Af) Debt secured by Liens Capital Leases incurred in connection with any Sale and Leaseback Transaction permitted by Section 5.02(a)(iv6.13(a)(ii);
(g) Debt in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that the aggregate principal amount of any such Debt that is secured may not exceed $5,000,000 at any time outstanding;
(h) Debt incurred in connection with the construction or development of any Governmental Fueling Facility; provided the aggregate principal amount of such Debt does not exceed $20,000,000 at any time outstanding for all Governmental Fueling Facilities in the Construction Phase;
(i) Debt consisting of the financing of insurance premiums; provided that the final scheduled maturity of such Debt shall not exceed one (1) year after the date of incurrence thereof;
(j) Debt incurred solely for the purpose of financing the acquisition, construction or improvement of any fixed or capital assets, including Capital Leases and any Debt assumed in connection with the acquisition of any such assets; provided that (i) the principal amount of such Debt does not exceed the cost of acquiring, constructing or improving such fixed or capital assets, (ii) the aggregate principal amount of Debt permitted under this clause (j) shall not exceed $20,000,000 at any time outstanding and (iii) such Debt is incurred pursuant to, or within 180 days after, the acquisition, construction or improvement thereof;
(k) Debt of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the Closing Date, or Debt of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a transaction permitted under Section 6.05; provided that (i) such Debt exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation) or such assets being acquired and (ii) the aggregate principal amount of Debt permitted by this clause (k) shall not exceed $10,000,000 at any time outstanding,;
(Bl) Debt owed in respect of any overdrafts and related liabilities arising from treasury, depository and cash management and other bank product services (1including purchase card services) Capitalized Leases or in connection with any automated clearing-house transfers of funds; provided that such Debt shall be repaid in full within twenty (20) Business Days of the incurrence thereof;
(m) Permitted ABL Debt in an aggregate principal amount not to exceed in the aggregate (i) $10,000,000 150,000,000 at any time outstanding plus (ii) $50,000,000 at any time outstanding, and (2) so long as, in the case of any Capitalized Lease to this clause (ii), on the date on which any Subsidiary credit facility (including any incremental commitments under an existing credit facility) under which Permitted ABL Debt in excess of $150,000,000 would be made available becomes effective, the Total Leverage Ratio, calculated on a Loan Party is a party, any Contingent Obligation pro forma basis after giving effect to such credit facility and assuming the full utilization of such Loan Party guaranteeing the Obligations credit facility as loans, shall be 2.50 to 1.00 or less; provided that at any time no more than $25,000,000 of such Subsidiary under such Capitalized Lease,Debt outstanding may be the primary obligation (as borrower or account party) of Subsidiaries that are not Loan Parties; and
(Cn) Debt reimbursement obligations in respect of Hedge Agreements designed to hedge against fluctuations in interest rates surety, appeal or foreign exchange rates performance bonds or similar obligations incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 1 contract
Debt. Create, incur, assume Create or suffer to exist, or permit any of its Subsidiaries to create, incur, assume create or suffer to exist, any DebtDebt other than the following, exceptprovided that any Debt permitted by any clause below shall be permitted under this Section 5.02(d), notwithstanding that such Debt would not be permitted by any other clause:
(i) Debt under owed to the Loan Documents;
(ii) in Company or to a Consolidated Subsidiary of the case of any Company, provided that all such Debt owed by a Loan Party or any Subsidiary of to a Person that is not a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of such Loan Party pursuant to an intercompany subordination agreement or other arrangements reasonably satisfactory to the Required Lenders; provided further that all such Debt that is owed to a Loan Parties Party by a Person that is not a Loan Party (x) shall be permitted as an Investment under Section 5.02(i) and (y) shall be evidenced by an intercompany note, and pledged to the Loan Documents;Agent as Collateral,
(ii) Debt existing on the Closing Date and described on Schedule 5.02(d) hereto, and any Permitted Refinancing thereof,
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens of the type described in and to the extent permitted by Section 5.02(a)(iv5.02(a)(iii) and (vi) in an aggregate amount not to exceed $25,000,000 at any time outstanding,
(iv) Debt of a Person existing at the time such Person is amalgamated, merged into or consolidated with the Company or any Subsidiary of the Company or becomes a Subsidiary of the Company; provided that such Debt was not created in contemplation of such amalgamation, merger, consolidation or acquisition,
(v) Debt arising under the Loan Documents,
(vi) Debt under the Existing DIP Credit Agreement in connection with an asset based revolving facility (including any letters of credit or other obligations incurred thereunder) in an amount not to exceed $200,000,000 at any time outstanding,
(vii) Debt incurred by Kodak International Finance Limited, a company organized and existing under the laws of England, (x) in connection with short term working capital needs in an aggregate amount not to exceed $25,000,000 at any time outstanding and (y) consisting of Hedge Agreement Obligations entered into in the ordinary course of business to protect the Company and its Subsidiaries against fluctuations in commodities, interest or exchanges rates and permitted under Section 5.02(m),
(viii) Debt incurred by Subsidiaries organized under the laws of any jurisdiction outside of the United States in an aggregate amount not to exceed $30,000,000 at any time outstanding,
(ix) Debt of Subsidiaries that are not Loan Parties in respect of (a) treasury management services, clearing, corporate credit card and related services provided to any such Subsidiaries, (b) letters of credit issued for the benefit of any such Subsidiaries, (c) Hedge Agreements entered into by any such Subsidiaries and permitted under Section 5.02(m), and (d) bank guarantees with respect to such Subsidiaries, in an aggregate amount not to exceed $10,000,000 at any time outstanding,
(Bx) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;,
(viixi) recourse secured DebtDebt which exists or may exist under the Existing DIP Secured Agreements in existence from time to time, subject to the Maximum Obligations Amount,
(xii) Debt which exists or may exist under the Existing Secured Agreements in existence from time to time; provided that such Debt (A) is shall not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not be secured by any Lien on any Borrowing Base Asset, other than a Lien permitted under Section 5.02(a)(x),
(xiii) unsecured Debt consisting of guarantees of amounts owing by customers of the Company under equipment and (C) shall vendor financing programs in an aggregate amount not to exceed in the aggregate $25,000,000 at any time outstanding 10% outstanding,
(xiv) unsecured Debt in connection with surety bonds, guarantees and letters of Total Asset Value; credit for customs and excise taxes, value added taxes, insurance and environmental liabilities, rental expenses, tenders and bids and other obligations of the like incurred in the ordinary course of business in an aggregate principal amount not to exceed $10,000,000 at any time outstanding,
(xv) the Other Existing Letters of Credit, but, with respect to each Other Existing Letter of Credit, only until such time as such letter of credit expires in accordance with its terms in effect on the Closing Date or is otherwise cancelled or terminated,
(xvi) Guarantees (i) of any Loan Party in respect of Debt of the Company or any other Loan Party otherwise permitted hereunder and (ii) of any Subsidiary that is not a Loan Party in respect of Debt of any other Subsidiary that is not a Loan Party otherwise permitted hereunder, and
(viiixvii) unsecured additional Debt the incurrence of which would not result in a Default under Section 5.04to exceed $10,000,000 at any time outstanding.
Appears in 1 contract
Sources: Debtor in Possession Loan Agreement (Eastman Kodak Co)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary the Borrower,
(A) Debt in respect of a Loan Party, Hedge Agreements permitted under Section 5.02(m) hereof;
(B) Debt owed to any other Loan Party or any wholly-owned a Subsidiary of any Loan PartyGuarantor, provided thatwhich Debt (x) shall constitute Pledged Debt, in each case, such Debt (y) shall be subordinated to the Facilities and on terms acceptable to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, which Agent and such promissory notes shall (unless payable 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) so long as no Event of Default has occurred and is continuing, or would result therefrom, (x) other unsecured Debt and (y) Debt secured by Liens permitted under Section 5.02(a)(v); provided that before and after giving effect to such Debt, the Borrower is in pro forma compliance with the covenants in Section 5.04, calculated based on the financial statements most recently delivered pursuant to Section 5.03 and as though such Debt had been incurred at the beginning of the four-quarter period covered thereby;
(ii) in the case of any Subsidiary of the Borrower,
(A) by their terms Debt owed to the Borrower or to a Subsidiary Guarantor, provided that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall be subordinated to the Facilities and 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 Loan Parties holder thereof under the Loan DocumentsDocuments to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement; and
(B) so long as no Event of Default has occurred and is continuing or would result therefrom, other unsecured Debt in an aggregate principal amount not to exceed $10 million at any one time outstanding;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) Borrower and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) so long as no Event of Default has occurred and is continuing, or would result therefrom, Debt secured by Liens permitted by Section 5.02(a)(iv) not ); provided, that before and after giving effect to exceed such Debt, the Borrower is in pro forma compliance with the aggregate $10,000,000 financial covenants set forth in Section 5.04 hereof calculated based on the financial statements most recently delivered pursuant to Section 5.03 and as though such Debt was incurred at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstandingbeginning of the four-quarter period covered thereby, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,and
(C) the Surviving Debt, and any Debt extending the maturity of, or refunding or refinancing, in respect of Hedge Agreements designed to hedge against fluctuations whole or in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practicespart, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured 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 (Aexcept by an amount equal to a reasonable premium paid, and reasonable fees and expenses incurred, in connection with such 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, amortization, maturity, collateral (if any) is not recourse 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 Loan Parties or the Lender Parties than the terms of any agreement or instrument governing the Surviving Debt being extended, refunded or refinanced and the interest rate applicable to any Subsidiary Guarantor that owns any Borrowing Base Asset such extending, refunding or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall refinancing Debt does not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04then applicable market interest rate.
Appears in 1 contract
Debt. Create, 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 Borrower,
(A) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or commodity pricing, in each case incurred in the ordinary course of business and consistent with prudent business practice,
(B) Debt owed to a direct or indirect wholly-owned Subsidiary of the Borrower, which Debt (x) shall constitute Pledged Debt, (y) shall be subordinated to any Debt of the Borrower under the Loan Documents;Documents on terms reasonably acceptable to the Administrative Agent and (z) if evidenced by promissory notes, shall be in form and substance satisfactory to the Administrative Agent and 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 Pledge Agreement; and
(C) Debt incurred by the Borrower (which may be guaranteed by the Guarantors) in connection with the issuance of unsecured senior notes (the “Permitted Senior Notes”); provided that (1) no Default or Event of Default shall have occurred and be continuing at the time of any such issuance or would be caused by such issuance, (2) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 5.04 after giving effect to the incurrence of such Debt and shall provide the Administrative Agent and Lenders with a pro forma compliance certificate evidencing such compliance at least 10 days (or such shorter period as may be agreed to by the Administrative Agent) in advance of any such Debt issuance, (3) the Borrower shall comply with the mandatory prepayment requirements set forth in Section 2.06(b)(ii), (4) such Debt shall rank no higher than pari passu with the Obligations, (5) the maturity of such Debt shall be at least six (6) months after the latest Termination Date, (6) the terms of such Debt may not restrict, limit or otherwise encumber the ability of the Borrower or any Subsidiary to grant Liens in favor of the Administrative Agent or any Lender under this Agreement or any other Loan Document, and (7) such Debt shall otherwise be issued on terms and conditions reasonably satisfactory to the Administrative Agent.
(ii) in the case of any Loan Party or any Subsidiary of a Loan Partythe Borrower, Debt owed to any other Loan Party the Borrower or any wholly-to a wholly owned Subsidiary of any Loan Partythe Borrower, provided that, in each case, to the extent such Debt exceeds $10,000,000 in the aggregate, 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, which Agent and such promissory notes shall (unless payable to the Borrower) by their terms be subordinated to 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 Pledge Agreement; and
(iii) the Guaranties and, in the case of the Loan Parties and their Subsidiaries,
(A) Debt under the Loan Documents;
(iiiB) the Surviving Debt described on Schedule 4.01(n) hereto So long as no Default has occurred and any Refinancing Debt extendingis continuing, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
; provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (B) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (1B) in the event that a Default has occurred and is continuing;
(C) Capitalized Leases (other than those permitted by clause (F) below) not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease Leases to which any Subsidiary of a Loan Party is a party, any Contingent Obligation Debt of such the Loan Party of the type described in clause (j) of the definition of Debt guaranteeing the Obligations obligations of such Subsidiary under such the Capitalized Lease,
Leases permitted under this clause (C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and);
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in Person that becomes a Default under any Subsidiary of the covenants contained Borrower after the Effective Date in accordance with the terms of Section 5.045.02(f) which Debt does not exceed $10,000,000 in the aggregate and is existing at the time such Person becomes a Subsidiary of the Borrower;
(vE) So long as no Default has occurred and is continuing, other unsecured Debt of the Borrower in an aggregate principal amount not to exceed $10,000,000 at any one time outstanding; provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (E) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (E) in the case of the Parent Guarantor event that a Default has occurred and the Borrower, Debt consisting of Customary Carve-Out Agreementsis continuing;
(viF) endorsements the Surviving Debt, and any Debt extending the maturity of, or 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;
(G) Contingent obligations of the Loan Parties or any of their Subsidiaries in an amount not to exceed $10,000,000; provided that such contingent obligations are unsecured;
(H) Endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viiI) recourse secured Debt, provided that such Debt (A) is in respect of letters of credit in an aggregate amount not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate $2,000,000 at any time outstanding 10% outstanding;
(J) Debt in respect of Total Asset Valueindemnification obligations in connection with bonds and letters of credit related to self insurance and insurance programs and policies of the Loan Parties and their respective Subsidiaries;
(K) Obligations in respect of the Borrower’s Non-Qualified Deferred Compensation Plan to the extent of assets of such plan are on the Borrower’s balance sheet; and
(viiiL) unsecured Guarantee obligations of the Guarantors in respect of Debt of the incurrence of which would not result in a Default under Borrower permitted pursuant to Section 5.045.02(b)(i)(C).
Appears in 1 contract
Sources: Credit Agreement (Cracker Barrel Old Country Store, Inc)
Debt. CreateBorrower will not incur, incurcreate, assume or suffer permit to exist, or and will not permit any of its Subsidiaries Subsidiary to incur, create, incur, assume or suffer permit to exist, any Debt, except:
except (i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iiia) the Surviving Obligations, (b) purchase money Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to Obligations in an aggregate principal amount which any Subsidiary of a Loan Party is a partydoes not exceed $250,000 outstanding (or, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and SPEs, such amounts as may be set forth in the Borrowerapplicable SPE Mortgage Debt documents) at any time, (c) Debt consisting arising from the endorsement of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
, (viid) recourse secured Debt owed by (i) one Credit Party to another Credit Party or (ii) any Subsidiary to Borrower, (e) obligations of any Credit Party for taxes, assessments or other governmental charges which are not at the time delinquent or thereafter payable without penalty or being contested in good faith by appropriate proceedings and, in each case, for which 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 any of the foregoing clauses, provided that the aggregate outstanding principal amount of all such Debt pursuant to this clause (Aj) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall does not exceed in the aggregate $250,000 at any time outstanding 10% (or, in the case of Total Asset Value; and
(viii) unsecured the SPEs, such amounts as may be set forth in the applicable SPE Mortgage Debt the incurrence of which would not result in a Default under Section 5.04documents).
Appears in 1 contract
Sources: Loan Agreement (HG Holdings, Inc.)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(ia) Debt under the Loan Documents;
(iiy) in the case of any Loan Credit Party or any Subsidiary of a Loan Credit Party, Debt owed to any other Loan Credit Party or any wholly-owned Subsidiary of any Loan PartyCredit Party (other than an Excluded Subsidiary), provided that, in each case, such Debt (y1) shall be on terms acceptable to the Administrative Agent (or, during the continuance of an Event of Default, the Required Holders), and (z2) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative AgentAgent (or, during the continuance of an Event of Default, the Required Holders), which promissory notes shall (unless payable to the BorrowerCompany) by their terms be subordinated to the Obligations obligations of the Loan Credit Parties evidenced by the Notes and under the Loan other Transaction Documents, and (z) in the case of any Excluded Subsidiary, Debt owed to any other Excluded Subsidiary;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(ivb) in the case of each Loan Credit Party (other than the Parent Guarantor) and or its Subsidiaries,
(Ai) Debt under the Transaction Documents,
(ii) Debt secured by Liens permitted by Section 5.02(a)(iv10.1(c) not to exceed in the aggregate $10,000,000 7,500,000 at any time outstanding,
(B) (1) Capitalized Leases (other than with respect to Real Property) not to exceed in the aggregate $10,000,000 25,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease Leases (other than with respect to Real Property) to which any Subsidiary of a Loan Credit Party is a party, any Contingent Obligation Debt of such Loan Credit Party of the type described in clause (a) of the definition of “Debt” guaranteeing the Obligations obligations of such Subsidiary under such Capitalized LeaseLeases,
(Civ) [intentionally omitted],
(v) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practicespractice,
(vi) Unsecured Debt incurred in the ordinary course of business for borrowed money, maturing within one year from the date created, and aggregating, on a Consolidated basis, not more than $25,000,000 at any one time outstanding, and
(Dvii) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Unencumbered Assets, the incurrence of which would not result in a Default under Section 11 or any other provision of this Agreement;
(c) In the case of the Parent Guarantor or any of its Subsidiaries:
(i) Debt under Customary Carve-Out Agreements,
(ii) the Surviving Debt described on Schedule 10.2(c) hereto and any Refinancing Debt, extending, refunding, or refinancing such Surviving Debt, and
(iii) Recourse Debt (whether secured or unsecured) in an amount not to exceed in the aggregate (1) 20% of Total Asset Value plus (2) an amount equal to the aggregate commitments under the Revolving Credit Agreement; provided, however, that any recourse guaranties of Non-Recourse Debt (exclusive of Customary Carve-Out Agreements) otherwise permitted under this clause (iii) shall not exceed in the aggregate 5% of Total Asset Value; provided, further, that during any period in which the Parent Guarantor shall maintain a Debt Rating of BBB-/Baa3 or better, then the Parent Guarantor and its Subsidiaries shall be permitted to incur Recourse Debt in any amount that would not result in a failure by the Company or the Parent Guarantor to comply with any of the financial covenants applicable to it contained in Section 5.0411;
(vd) in the case of the Parent Guarantor and the BorrowerGuarantor, Debt consisting of Customary Carve-Out Agreements;under the Transaction Documents; and
(vie) endorsements endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 1 contract
Sources: Note Purchase and Private Shelf Agreement (Digital Realty Trust, Inc.)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) USI and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements (A) designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, andpractice with the aggregate Agreement Value thereof not to exceed $15,000,000 at any time outstanding in the case of interest rate ▇▇▇▇▇▇ (excluding for purposes of this calculation Hedge Agreements entered into in order to comply with Section 6.01(q)) and an aggregate notional amount not to exceed $20,000,000 at any time outstanding in the case of foreign exchange rate ▇▇▇▇▇▇ (excluding for purposes of this amount Hedge Agreements entered into in reasonable anticipation of the consummation of an Asset Disposition) and (B) with respect to commodity hedging entered into in the ordinary course of business consistent with past practice and in compliance with Section 6.02(o),
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(vii) in the case of any Loan Party (A) that is a Shared Collateral Loan Party, Debt owed to another Shared Collateral Loan Party and (B) that is a Non-Shared Collateral Loan Party, Debt owed to another Non-Shared Collateral Loan Party, provided that, in each case, such Debt (x) shall be evidenced by promissory notes in form and substance satisfactory to the Parent Guarantor Debt Coordinator and (y) shall constitute Pledged Debt and be pledged as security for the Obligations under the Senior Debt or Bank Debt, as applicable, and delivered to the Collateral Trustees pursuant to the terms of the Pledge and Security Agreement,
(iii) in the case of any Foreign Subsidiary, Debt owed to (x) any other Foreign Subsidiary, (y) USI or any other Subsidiary of USI (subject to the limitations set forth in Section 6.02(f)) or (z) any other Person, so long as such Debt is either (1) Surviving Debt (whether or not funded) and any Debt extending the maturity of, or refunding or refinancing, in whole or in part, such Surviving Debt that meets the requirements set forth in the first two provisos of clause (iv)(D) below, or (2) other Debt in an aggregate principal or face amount owed by all Foreign Subsidiaries to all such other Persons not to exceed $10,000,000 at any time, and
(iv) in the case of any Loan Party,
(A) Debt under the Transaction Documents,
(B) Debt secured by Liens permitted by Section 6.02(a)(iv) not to exceed in the aggregate for all Loan Parties $10,000,000 at any time outstanding,
(C) Capitalized Leases not to exceed in the aggregate for all Loan Parties $10,000,000 at any time outstanding,
(D) the Surviving Debt, and any Debt extending the maturity of, or 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 Amendment Documents and the BorrowerCredit Documents, provided further that the principal amount of such Surviving Debt consisting shall not be increased above the maximum principal amount permitted to be incurred under the commitment thereof immediately prior to such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of Customary Carve-Out Agreements;or in connection with such extension, refunding or refinancing, provided still 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 connection therewith, are no less favorable in any material respect to the Loan Parties or the Banks than the terms of any agreement or instrument governing the Surviving Debt being extended, refunded or refinanced and the interest rate applicable to any such extending, refunding or refinancing Debt does not exceed the then applicable market interest rate,
(viE) endorsements Debt owed to Foreign Subsidiaries, provided that (i) such Debt shall be subordinated, on terms satisfactory to the Debt Coordinator, to all Bank Debt and (ii) unless such Debt is Debt of negotiable instruments for deposit a Non-Shared Collateral Loan Party, the proceeds of such Debt shall be applied concurrently to prepay revolving credit or collection or similar transactions in swingline borrowings (without any required commitment reduction) under the ordinary course of business;USI Credit Agreement, and
(viiF) recourse secured DebtDebt owed to Foreign Loan Parties, provided that such Debt (A) is not recourse shall be subordinated, on terms satisfactory to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest thereinthe Debt Coordinator, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04to all Bank Debt.
Appears in 1 contract
Sources: Amendment, Restatement, General Provisions and Intercreditor Agreement (Us Industries Inc /De)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Partythe Borrower, Debt owed to any other Loan Party or any wholly-a wholly owned Subsidiary of any Loan Partythe Borrower which is a Subsidiary Guarantor, provided that, in each case, such which Debt (yx) shall be on terms acceptable to the Administrative Agent constitute Pledged Debt and (zy) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, which Agent and such promissory notes shall (unless payable shall, in the case of Debt owed to the Borrower) by their terms a Loan Party, be subordinated to pledged as security for the Obligations of the Loan Parties holder thereof under the Loan DocumentsDocuments to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(ivii) in the case of any Subsidiary of the Borrower, Debt owed to the Borrower or to a wholly owned Subsidiary of the Borrower, provided that, in each case, such Debt (w) shall be permitted under Section 5.02(f), (x) shall, in the case of Debt owed to a Loan Party Party, constitute Pledged Debt and (other than y) shall be evidenced by promissory notes in form and substance satisfactory to the Parent GuarantorAdministrative Agent and such promissory notes shall, in the case of Debt owed to a Loan Party, 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 the Borrower and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, the Borrower shall be in pro forma compliance with the provisions of Section 5.04, if applicable (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lender Parties as though such Debt had been incurred as of the first day of the fiscal period covered thereby), (I) Debt secured by Liens permitted by Section 5.02(a)(iv), (II) Capitalized Leases permitted by Section 5.02(a)(v), (III) Debt secured by Liens on the Borrower's or any of its Subsidiaries' fixed assets, and (IV) Debt in respect of sale-leaseback transactions permitted by Section 5.02(a)(vii), provided, however, that (i) such Debt incurred pursuant to this Section 5.02(b)(iii)(B) shall not have scheduled amortization payments prior to the Termination Date in an aggregate principal amount in any Fiscal Year (together with the aggregate scheduled amortization payments in any Fiscal Year prior to the Termination Date of any Debt permitted pursuant to clauses (C), (E) and (J) below) greater than the Amortization Basket, and (ii) (a) Debt incurred pursuant to clauses (I), (II) and (IV) of this Section 5.02(b)(iii)(B) shall not exceed $100 million in the aggregate during the term of this Agreement, and (b) Debt incurred pursuant to clause (III) of this Section 5.02(b)(iii)(B) shall not exceed $10,000,000 at any time outstanding,200 million in the aggregate during the term of this Agreement.
(BC) So long as (1) Capitalized Leases not to exceed in no Default has occurred and is continuing (both at the aggregate $10,000,000 at any time outstandingof such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, the Borrower shall be in pro forma 84 compliance with the provisions of Section 5.04, if applicable (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lender Parties as though such Debt had been incurred as of the first day of the fiscal period covered thereby), Debt extending the maturity of, or refunding or refinancing, in whole or in part (without any increase in the case principal amount thereof or any change in any direct or contingent obligor thereof), any Debt under the Existing Indentures, provided that (x) the terms and conditions of such extending, refunding or refinancing Debt are market terms and conditions at the time of such extension, refunding or refinancing, (y) there are no scheduled amortization payments in respect of such extending, refunding or refinancing Debt prior to the Termination Date in an aggregate principal amount in any Fiscal Year (together with the aggregate scheduled amortization payments in any Fiscal Year prior to the Termination Date of any Capitalized Lease Debt permitted pursuant to clause (B) above and clauses (E) and (J) below) greater than the Amortization Basket and (z) any security arrangements in respect of such extended, refunded or refinanced Debt shall be no more onerous to the Lender Parties than those set forth in the security documentation in effect at such time; provided, further, that any Net Cash Proceeds received by the Borrower in connection with any refinancing of Debt issued under any of the Existing Indentures shall be applied within one Business Day to prepay Revolving Credit Advances, in which event (x) any Subsidiary Net Cash Proceeds in excess of the aggregate amount of outstanding Revolving Credit Advances shall be deposited and held either in a Deposit Account or a Security Account (as each term is defined in the Security Agreement) and (y) the Administrative Agent shall establish a reserve against the Loan Value equal to the principal amount of the Senior Notes being refinanced plus the amount of unpaid interest on such Senior Notes as of the redemption date plus the premium, fees and expenses payable in connection with the redemption of such Senior Notes, which reserve the Administrative Agent will reduce on the Business Day following receipt of written certification by a Responsible Financial Officer of the Borrower that the Borrower will redeem Senior Notes with the proceeds of a Loan Party is a party, any Contingent Obligation Revolving Credit Advance within three Business Days of the date of such Loan Party guaranteeing the Obligations notice, together with a Notice of Borrowing for such Subsidiary under such Capitalized LeaseRevolving Credit Advance,
(CD) The Surviving Debt,
(E) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, the Borrower shall be in pro forma compliance with the provisions of Section 5.04, if applicable (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lender Parties as though such Debt had been incurred as of the first day of the fiscal period covered thereby), Debt extending the maturity of, or refunding or refinancing, in whole or in part (without any increase in the principal amount thereof or any change in any direct or contingent obligor thereof), any Debt described in clause (B) above and any other Surviving Debt (other than Debt issued pursuant to the Existing Indentures) of the type described in clause (B) above, provided that (x) there are no remaining scheduled amortization payments in respect of Hedge Agreements designed such extending, refunding or refinancing Debt prior to hedge against fluctuations December 31, 2011 that is more onerous than the remaining scheduled amortization prior to December 31, 2011, if any, applicable to the Debt being extended, refunded or refinanced, (y) any security arrangements in interest rates respect of such extended, refunded or foreign exchange rates refinanced Debt shall be no more onerous to the Lender Parties than those set forth in the security documentation in effect at such time, and (z) there are no scheduled amortization payments of principal in respect of such Debt prior to the Termination Date in an aggregate principal amount in any Fiscal Year (together with the aggregated scheduled amortization payments in any Fiscal Year prior to the Termination Date of any Debt permitted pursuant to clauses (B) and (C) above and clause (J) below) greater than the Amortization Basket; provided further that the principal amount of such Debt being extended, refunded or refinanced 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,
(F) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, the Borrower shall be in pro forma compliance, with the provisions of Section 5.04, if applicable (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lender Parties as though such Debt had been incurred as of the first day of the fiscal period covered thereby), unsecured, subordinated Debt owing to G-I Holdings or BMCA Holdings; provided, however, that no payments shall be made with respect to Debt permitted under this clause (F) unless after giving effect to each such payment, the Available Liquidity (as certified to the Administrative Agent by a Responsible Financial Officer of the Borrower) shall be least $25 million,
(G) Debt consisting of surety bonds or similar instruments in favor of government agencies in connection with workers' compensation liabilities, taxes, assessments or other obligations, provided that such Debt is incurred in the ordinary course of business business,
(H) Debt of any entity acquired by the Borrower or its Subsidiaries in accordance with the terms hereof so long as (i) such Debt was incurred prior to such acquisition (and consistent not in connection with prudent business practicesor contemplation of, such acquisition), (ii) both before and after giving effect to such acquisition, no Default or Event of Default shall exist, and (iii) such Debt has no additional direct, indirect or contingent obligor,
(I) Debt of any Loan Party consisting of Contingent Obligations in respect of Debt of other Loan Parties, so long as such other Loan Parties are permitted to incur such Debt hereunder, and
(DJ) Non-Recourse Debt So long as (including1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), without limitationand (2) after giving effect to such incurrence, the JV Pro Rata Share Borrower shall be in pro forma compliance, with the provisions of Non-Recourse Section 5.04, if applicable (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lender Parties as though such Debt had been incurred as of any Joint Venture) the first day of the fiscal period covered thereby), Debt ranked junior (in respect of Assets other than Borrowing Base Assetsany Liens securing such Debt, which Liens shall be ranked junior to the incurrence of which would not result in a Default under any of Liens securing the covenants contained in Section 5.04;
(vSenior Facility) in to the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured DebtSenior Facility , provided that there are no scheduled amortization payments of principal in respect of such Debt prior to the Termination Date in an aggregate principal amount in any Fiscal Year (A) is not recourse together with the aggregated scheduled amortization payments in any Fiscal Year prior to the Termination Date of any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, Debt permitted pursuant to clauses (B) is not secured by any Lien on any Borrowing Base Asset), and (C) shall not exceed in and (E) above) greater than the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04Amortization Basket.
Appears in 1 contract
Sources: Credit Agreement (Building Materials Corp of America)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries or any Excluded Subsidiary (other than any Excluded Subsidiary of the type referred to in clause (b) or (c) of the definition thereof) to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such Debt (y) shall be on terms acceptable to the Administrative Agent and (z) extent constituting Debt, Obligations under the Contract Support Documents; provided that at no time shall be evidenced by promissory notes in form and substance satisfactory any such Obligations constitute Contract Support First Lien Advances to the Administrative Agentextent that the outstanding principal amount of such Contract Support First Lien Advances when taken together with the Maximum First Lien Claims under any Permitted Commodity Hedge and Power Sale Agreement then in effect exceed $475,000,000;
(iii) secured Debt under any letter of credit facility (including, which promissory notes shall (unless payable without limitation, the Special L/C Facility, any Special L/C Incremental Facility, any Debt incurred under the First Lien Incremental Facility to the Borrowerbe used for such purposes and any Synthetic L/C Facility) by their terms be subordinated to the that supports Obligations of the Loan Parties under the Loan Documents;
Purchase Agreement, Permitted Commodity Hedge and Power Sale Agreements or other Obligations incurred in connection with the operation of the Projects, in an aggregate principal amount not to exceed $650,000,000 at any one time outstanding; provided that (iiiA) the Surviving lender(s) or letter of credit issuer(s) (or agent on behalf of such lender(s) or letter of credit issuer(s)) of such Debt described on Schedule 4.01(nare party to the Intercreditor Agreement as, and shall have the obligations of a First Lien Secured Party or Second Lien Secured Party thereunder, (B) hereto such Debt shall only be secured by the Liens created by the Collateral Documents or the First Lien Collateral Documents, and any Refinancing (C) such Debt extending, refunding or refinancing such Surviving Debtshall not mature earlier than the Termination Date;
(iv) secured Debt to finance the acquisition of the Ontelaunee Project (including any Debt under any First Lien Incremental Facility or Special L/C Incremental Facility to be used for such purposes and any Ontelaunee Credit Increase) in an aggregate amount not to exceed $165,000,000 in the case aggregate; provided that (A) the lender(s) or letter of each Loan credit issuer(s) (or agent on behalf of such lender(s) or letter of credit issuer(s)) of such Debt are party to the Intercreditor Agreement as, and shall have the obligation of, either a First Lien Secured Party or Second Lien Secured Party thereunder; (other B) such Debt shall only be secured by the Liens created by the Collateral Documents or the First Lien Collateral Documents; (C) such Debt shall not mature earlier than (1) May 4, LSP Gen Finance Second Lien Credit Agreement 2013, if such Debt is secured by the Liens created by the First Lien Collateral Documents or (2) the Maturity Date, if such Debt is secured by the Liens created by the Collateral Documents; and (D) the Borrower shall have received a Ratings Reaffirmation;
(v) secured Debt in the form of term loans or revolving credit facilities (including any Debt under any First Lien Incremental Facility or Special L/C Incremental Facility to be used for such purposes and any General Working Capital Credit Increase) in an aggregate amount not to exceed $100,000,000 in the aggregate; provided that (A) the lender(s) or letter of credit issuer(s) (or agent on behalf of such lender(s) or letter of credit issuer(s)) of such Debt are party to the Intercreditor Agreement as, and shall have the obligation of, either a First Lien Secured Party or Second Lien Secured Party thereunder, (B) such Debt shall only be secured by the Liens created by the Collateral Documents or the First Lien Collateral Documents (as defined in the Intercreditor Agreement), (C) such Debt shall not mature earlier than the Parent GuarantorTermination Date, and (D) and its Subsidiaries,the Borrower shall have received a Ratings Reaffirmation;
(vi) Debt under the First Lien Loan Documents in an aggregate principal amount that is not in excess of $1,090,000,000 plus the amount of any Debt incurred under the First Lien Loan Documents to the extent such Debt is incurred pursuant to clause (iii), (iv) or (v);
(vii) to the extent constituting Debt, obligations under (A) Contractual Obligations in effect as of the date hereof to the extent not constituting Debt for Borrowed Money and (B) Commodity Hedge and Power Sale Agreements to the extent permitted under Section 5.02(l);
(viii) Debt secured by Liens permitted by Section 5.02(a)(ivclause (q) of the definition of “Permitted Liens” not to exceed in the aggregate aggregate, when taken together with any Debt permitted to be incurred pursuant to Section 5.02(b)(ix), $10,000,000 75,000,000 at any time outstanding,;
(B) (1ix) Capitalized Leases not to exceed in the aggregate aggregate, when taken together with any Debt permitted to be incurred pursuant to Section 5.02(b)(viii), $10,000,000 75,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,;
(Cx) Debt in respect of South Bay Lease Obligations; provided that the Borrower shall have taken the actions contemplated by Section 3.01(c)(ii);
(xi) to the extent constituting Debt, payment obligations under Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates in respect of the Facility and First Lien Obligations incurred in the ordinary course of business and consistent with prudent business practices, andpractice (it being acknowledged and agreed that any such Hedge Agreements entered into for the purpose of complying with Section 5.01(o) above shall be deemed to be permitted Debt under this clause (xi)); LSP Gen Finance Second Lien Credit Agreement
(Dxii) Non-Recourse Debt owed to any Loan Party, which Debt shall (includingA) constitute Pledged Debt or Pledged Parent Debt, without limitation, (B) be on terms reasonably acceptable to the JV Pro Rata Share Administrative Agent and (C) be otherwise permitted under the provisions of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.045.02(f);
(vxiii) in the case of any Non-Recourse Subsidiary (including any Acquisition Subsidiary), Non-Recourse Debt; provided that (A) before and after giving effect to the Parent incurrence of such Non-Recourse Debt, no Default or Event of Default shall have occurred and be continuing, and (B) any Working Capital Letter of Credit issued for the benefit of such Group II Portfolio Company shall be terminated, returned for cancellation or cash collateralized in an amount equal to 102.5% of the Available Amount thereof prior to or simultaneously with the incurrence of such Non-Recourse Debt;
(A) Debt of a Person or Debt attaching to assets of a Person that, in either case becomes a Subsidiary of the Borrower and is a Guarantor hereunder or Debt attaching to assets that are acquired by the Borrower or any Guarantor as a result of a Permitted Acquisition; provided that (1) such Debt existed at the time such Person became a Subsidiary of the Borrower or at the time such assets were acquired and, in each case, was not created in anticipation thereof, (2) such Debt is not guaranteed in any respect by any Loan Party (other than any such Person that becomes a Guarantor hereunder) and (3) (x) the Equity Interests in such Person are or will be pledged to the Second Lien Collateral Agent to the extent required under Section 5.01(q) and (y) all other steps required to be taken in connection with the granting of a Lien over the Property (other than Excluded Property) of such Person pursuant to Section 5.01(q) shall have been or will be taken; and (B) any refinancing, refunding, renewal or extension of any Debt specified in clause (A); provided that (I) the principal amount of such Debt is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, (II) the direct and contingent obligors with respect to such Debt are not changed and (III) the final maturity of such refinancing, refunding, renewal or extension Debt is no earlier than the existing scheduled maturity date of the Debt being refinanced, renewed or extended;
(A) unsecured subordinated Debt of the Borrower or any Guarantor incurred to finance a Permitted Acquisition in an aggregate amount not to exceed $150,000,000 at any one time outstanding; provided that (1) such Debt is not guaranteed in any respect by any Loan Party (other than any Person acquired (the “Acquired Person”) as a result of such Permitted Acquisition or the Loan Party so incurring such Debt) or, in the case of any Debt of any Guarantor, by the Borrower, (2)(x) the Borrower pledges or will pledge the Equity Interests of such Acquired Person to the Second Lien Collateral Agent to the extent required under extent required under Section 5.01(q) and (y) all other steps required to be taken in connection with the granting of a Lien over the Property (other than Excluded Property) of such Acquired Person pursuant to Section 5.01(q) shall have been or will be taken, (3) any such Debt consisting is incurred prior to or LSP Gen Finance Second Lien Credit Agreement within 90 days after such Permitted Acquisition, (4) both before and after giving effect to the incurrence of Customary Carve-Out Agreementssuch Debt (x) no Default or Event of Default shall have occurred and be continuing and (y) the Borrower would be in compliance with the Financial Covenants as of the most recently completed Measurement Period ending prior to the incurrence of such Debt for which financial statements and certificates required by Section 5.03(b) or 5.03(c) were required to be delivered, after giving pro forma effect to the incurrence of such Debt and the related Permitted Acquisition and to any other event occurring after such Measurement Period as to which pro forma recalculation is appropriate as if such incurrence of Debt and the related Permitted Acquisition had occurred as of the first day of such Measurement Period and (5) such Debt is subordinated to the Advances on either customary market terms at the time such Debt is incurred or otherwise on terms reasonably satisfactory to the Administrative Agent; and (B) any refinancing, refunding, renewal or extension of any Debt specified in clause (A); provided that (I) the principal amount of such Debt is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, (II) the direct and contingent obligors with respect to such Debt are not changed, (III) the final maturity of such refinancing, refunding, renewal or extension Debt is no earlier than the existing scheduled maturity date of the Debt being refinanced, renewed or extended, and (IV) such Debt is subordinated to the Advances on either customary market terms at the time such Debt is incurred or otherwise on terms reasonably satisfactory to the Administrative Agent;
(vixvi) endorsements Debt arising from agreements of negotiable instruments the Loan Party, any Guarantor or any of their Subsidiaries providing for deposit indemnification, adjustment of purchase price, earn-out, non-complete, consulting, deferred compensation or collection other similar obligations in connection with any Permitted Acquisition or Asset Sale permitted in accordance with Section 5.02(e); provided that (A) such Debt is not reflected on the balance sheet of the Borrower, such Guarantor or such Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for the purposes of this clause (A)) and (B) in the case of any Asset Sale, the maximum assumable liability in respect of all such Debt shall at no time exceed the gross proceeds, including noncash proceeds (the fair market value of such noncash proceeds being measured at the time received and without giving effect to any subsequent change in value), actually received by the Borrower, such Guarantor or such Subsidiary in connection with such Asset Sale;
(xvii) other unsecured Debt in an aggregate amount not to exceed $35,000,000 at any one time outstanding;
(xviii) to the extent constituting Debt, Debt in respect of performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees, indemnification obligations, obligations to pay insurance premiums, take or pay obligations and similar transactions obligations incurred in the ordinary course of businessbusiness and not in connection with Debt for Borrowed Money; LSP Gen Finance Second Lien Credit Agreement
(xix) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business and not in respect of Hedge Agreements or Permitted Commodity Hedge and Power Sale Agreements;
(viixx) recourse secured Debt, Debt incurred to Refinance the Working Capital Facility and any Debt permitted to be incurred under Section 5.02(b)(v) (a “Permitted Working Capital Refinancing”); provided that such Debt (A) is the aggregate principal amount of such Debt does not recourse exceed the sum of (1) the aggregate amount of the commitments in respect of the Working Capital Facility immediately prior to such refinancing plus (2) an amount, when taken together with any Subsidiary Guarantor that owns Debt outstanding pursuant to Section 5.02(b)(v), not to exceed $100,000,000 plus (3) the amount of any Borrowing Base Asset or accrued and unpaid interest in respect of such outstanding principal amount plus (4) the amount of any direct or indirect Equity Interest thereinreasonable fees and expenses incurred in connection with such Refinancing, (B) the lenders (or agents on behalf of the lenders) of such Debt have become a party to the Intercreditor Agreement as, and have the obligations of, the First Lien Secured Parties or the Second Lien Secured Parties thereunder, (C) the maturity date of such Debt is not no earlier than the Termination Date, (D) such Permitted Working Capital Refinancing shall only be secured by any the Liens created by the Collateral Documents or the First Lien on any Borrowing Base AssetCollateral Documents, and (CE) shall not exceed in to the extent that the aggregate at principal amount of such Debt exceeds the sum of the aggregate principal amount of the commitments in respect of the Working Capital Facility immediately prior to such refinancing plus the amount of any time accrued and unpaid interest in respect of such outstanding 10% principal amount the amount of Total Asset Valueany reasonable fees and expenses incurred in connection with such Refinancing, the Borrower shall have received a Ratings Reaffirmation; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 1 contract
Debt. CreateNo Loan Party shall, incur, assume or suffer to exist, or nor shall it permit any of its Restricted Subsidiaries to createto, directly or indirectly, incur, assume create, assume, or suffer permit to exist, exist any Debt, except:
(ia) Debt under the Loan DocumentsObligations;
(iib) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving existing Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt8.1;
(ivc) Purchase Money Debt and Capitalized Lease Obligations in an aggregate principal amount at the case time incurred, together with the principal amount outstanding of each Loan Party all other Debt incurred pursuant to this clause (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) c), not to exceed the greater of (i) $2,500,000 and (ii) 5% of the Borrowing Base then in the aggregate $10,000,000 effect at any time outstanding,;
(Bd) Debt associated with (1i) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstandingworker’s compensation claims, unemployment insurance laws or similar legislation, and (2ii) in deposits of cash or Cash Equivalents made to secure bids, tenders, the case performance of any Capitalized Lease statutory obligations, surety, stay, customs and appeal bonds to which Borrower or any Restricted Subsidiary is party in connection with the operation of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions its Properties in the ordinary course of business;
(viie) recourse secured Debtunsecured intercompany Debt (i) owed by any Loan Party to another Loan Party, (ii) owed by any Loan Party to a Restricted Subsidiary that is not a Loan Party; provided that such Debt (A) shall be subordinated to the Obligations in a manner reasonably satisfactory to Administrative Agent and (B) does not require the payment of cash interest by any Loan Party to a non-Loan Party, (iii) owed by a Restricted Subsidiary that is not a Loan Party to a Loan Party; provided that such Debt (A) is permitted under Section 8.5 and (B) shall be evidenced by a promissory note pledged and delivered to Administrative Agent pursuant to the Security Documents and (iv) owed by a Restricted Subsidiary that is not recourse a Loan Party to another Restricted Subsidiary that is not a Loan Party;
(f) Guarantees by any Loan Party or Restricted Subsidiary of Debt not otherwise prohibited pursuant to this Section 8.1; provided that (A) no Guarantee in respect of any Permitted Additional Debt shall be permitted unless the guaranteeing party shall also be a Guarantor that owns and (B) if the Debt being guaranteed is subordinated to the Obligations, such guarantee shall be subordinated to the guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Debt;
(i) Debt associated with financing of insurance premiums in the ordinary course of business and (ii) Debt in connection with the endorsement of negotiable instruments and other obligations in respect of cash management services, netting services, overdraft protection and similar arrangements, in each case incurred in the ordinary course of business;
(h) Debt arising from the honoring by a bank or other financial institution of a check, draft, payment order or other debit drawn, presented or issued against insufficient funds in the ordinary course of business so long as such Debt is extinguished within three (3) Business Days of its incurrence;
(i) any Borrowing Base Asset unsecured senior or unsecured senior subordinated Debt of Borrower or any direct Restricted Subsidiary and guarantees thereof by Borrower or indirect Equity Interest thereinany Restricted Subsidiary; provided that, in each case: (i) such Debt shall solely be comprised of unsecured senior or unsecured senior subordinated Debt, (ii) such Debt shall not provide for any amortization of principal or any scheduled prepayments of principal on any date prior to 180 days after the Maturity Date in effect at the time of incurrence or issuance, (iii) such Debt shall not contain a scheduled maturity date that is earlier than 180 days after the Maturity Date in effect at the time of incurrence or issuance, (iv) such Debt (or the documents governing such Debt) shall not contain (A) financial maintenance covenants that are more restrictive with respect to Borrower and its Restricted Subsidiaries than the financial maintenance covenants in this Agreement; provided, that, (1) the marginal difference between the financial maintenance covenants under such Debt and the financial maintenance covenants in this Agreement shall be approved by the written consent of the Majority Lenders in their reasonable discretion and (2) in the event such Debt contains a “net leverage ratio” maintenance level, the Lenders shall be deemed to have approved a marginal difference that is at least 0.50:1.00 higher than the then-effective maintenance level for the Consolidated Net Leverage Ratio under this Agreement, (B) is not secured covenants (other than financial maintenance covenants) or events of default, taken as a whole, that are more restrictive or onerous with respect to Borrower and the Restricted Subsidiaries than the covenants (other than financial maintenance covenants) and events of default in this Agreement (as determined in good faith by any Lien on any Borrowing Base Assetsenior management of Borrower), and (C) restrictions on the ability of Borrower or any of its Subsidiaries to guarantee the Obligations or to pledge assets as collateral security for the Obligations, (D) any mandatory prepayment or Redemption provisions which would require a mandatory prepayment or Redemption of such Debt (other than provisions requiring Redemption or offers to Redeem in connection with asset sales or a “change in control”) or (E) any prohibition on the prior repayment of any Obligations, (v) immediately after giving effect to the incurrence or issuance of such other Debt, the application of the proceeds thereof, and any automatic reduction of the Borrowing Base pursuant to Section 2.8(f) on account thereof and on the date of such incurrence or issuance of such Debt: (A) Borrower shall not exceed be in pro forma compliance with each of the aggregate at any time outstanding 10% Financial Covenants, in each case, for the Test Period most recently ended for which financial statements are available and (B) no Event of Total Asset ValueDefault or Borrowing Base Deficiency shall exist and (vi) the Borrowing Base shall automatically be reduced on the date of the incurrence or issuance of such Debt to the extent (if any) required by Section 2.8(f); and
(viiij) unsecured other Debt in an aggregate principal amount at the incurrence time incurred, together with the principal amount outstanding of which would all other Debt incurred pursuant to this clause (j), not result to exceed the greater of (i) $5,000,000 and (ii) 7.5% of the Borrowing Base then in a Default under Section 5.04effect at any time outstanding.
Appears in 1 contract
Sources: Credit Agreement (Peak Resources LP)
Debt. CreateNot, incur, assume or suffer to exist, or and not permit any of its Subsidiaries to other Loan Party to, create, incur, assume or suffer to exist, exist any Debt, except:
(ia) Debt Obligations under this Agreement and the other Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(Ab) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in 11.2(d), and extensions, renewals and refinancings thereof; provided that the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case amount of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that all such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% shall not exceed $100,000;
(c) Subordinated Debt; provided, that at the time of incurrence of any such Subordinated Debt, (i) no Event of Default has occurred and is then continuing and (ii) the Total Asset ValueDebt to EBITDA Ratio, computed as of the most recently ended Computation Period on a pro forma basis to give effect to the incurrence of such Subordinated Debt, does not exceed 3.0 to 1.0;
(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 increased;
(f) 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 in connection with Permitted Acquisitions and purchasers in connection with dispositions permitted under Section 11.5;
(h) Debt to the extent arising from final judgments not constituting an Event of Default;
(i) Debt to the extent arising in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies for which the failure to make payments shall not constitute an Event of Default; and
(viiij) unsecured Debt the incurrence consisting of which would not result in a Default any obligation to pay management fees permitted under Section 5.0411.4.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Restricted Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) in the case of the Parent, the Borrower and any of their respective Restricted Subsidiaries,
(A) Debt under the Loan Documents;
(iiB) the Surviving Debt;
(C) Debt of the Parent, the Borrower or any Restricted Subsidiary as an account party in respect of letters of credit (which do not constitute Letters of Credit hereunder) in the case an aggregate stated amount at any time outstanding not in excess of $30,000,000;
(D) Debt of (i) any Loan Party or any Subsidiary of a Loan Party, Debt that is owed to any other Loan Party, (ii) any Restricted Subsidiary of the Parent that is not a Loan Party or owed to any wholly-owned Subsidiary of the Parent that is not a Loan Party, (iii) Debt of any Loan PartyParty owed to any Subsidiary of the Parent that is not a Loan Party which, provided that, in each case, to the extent that the aggregate amount for all such Debt (y) exceeds $10,000,000, shall be subordinated in right of payment to the Obligations of such Loan Party under the Loan Documents pursuant to provisions at least as favorable to the Lenders as those set forth in the Affiliate Subordination Agreement (or otherwise on terms acceptable to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance reasonably satisfactory to the Administrative Agent, which promissory notes shall ) and (unless payable iv) Debt of any Subsidiary of the Parent that is not a Loan Party owed to any Loan Party to the Borrower) extent constituting an Investment permitted by their terms be subordinated to the Obligations of the Loan Parties under the Loan DocumentsSection 5.02(f);
(iiiE) Debt of any Person that becomes a Restricted Subsidiary of the Surviving Borrower or the Parent after the Original Effective Date in accordance with the terms of Section 5.02(f) which Debt described on Schedule 4.01(nis existing at the time such Person becomes a Restricted Subsidiary of the Borrower or the Parent (other than Debt incurred solely in contemplation of such Person becoming a Restricted Subsidiary of the Borrower or the Parent);
(F) hereto Debt in connection with Securitization Transactions up to an aggregate amount not to exceed (1) so long as clause (2) below shall not apply, $75,000,000, or (2) (x) so long as the Leverage Ratio shall not be more than 3.75:1.00, as set forth in the most recent officer’s certificate received by the Administrative Agent pursuant to Section 5.03(b) or Section 5.03(c) or (y) irrespective of whether the preceding clause (x) is applicable, if an Investment Grade Period shall have commenced following the Restatement Effective Date (and any irrespective of whether such Investment Grade Period shall have ended), $100,000,000; 94 Amended and Restated KCSR Credit Agreement
(G) Credit Agreement Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(ivH) Any other Debt, provided that before and after giving effect to the incurrence of such Debt (i) the Senior Secured Leverage Ratio is less than 3.50:1.00 and (ii) the Loan Parties are otherwise in compliance with the financial covenants set forth in Section 5.04, and provided further that, if such Debt is unsecured, (a) in no event shall the case terms of each Loan Party such Debt require any scheduled payment of principal in cash of such Debt prior to the Termination Date, (b) a Restricted Subsidiary shall not guarantee such Debt unless (i) such Subsidiary is also a Subsidiary Guarantor under this Agreement, and (ii) such guarantee of such Debt provides for the release and termination thereof, without action by any party, upon any release and termination of the Subsidiary Guaranty by the applicable Subsidiary (other than by reason of repayment and satisfaction of all of the Parent Guarantor) and its Subsidiaries,Obligations);
(AI) Debt secured comprising Capitalized Lease Obligations or the deferred purchase price of newly-acquired equipment and other property or incurred to finance the acquisition of newly-acquired equipment pursuant to purchase money mortgages or otherwise, or in contemplation of a Sale and Leaseback Transaction pursuant to Section 5.02(h)(ii), to the extent the conditions set forth therein are satisfied; provided that such Debt is incurred within 270 days following the acquisition thereof, or if such property or equipment is purchased in installments, within 270 days of the final purchased installment;
(J) Debt consisting of guaranties described in Section 5.02(b)(i)(H);
(K) Debt incurred by Liens permitted by Section 5.02(a)(iv) the Borrower or a Restricted Subsidiary in a principal amount not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 150,000,000 at any time outstanding, which Debt may be incurred only if (i) both before and after giving effect thereto, no Event of Default shall have occurred and be continuing or would result therefrom, (ii) the Debt shall be incurred under the RR Act or such Debt shall be incurred as a bridge to a refinancing for Debt to be incurred under the RR Act, and the proceeds thereof used solely for purposes consistent with the RR Act, (iii) the Debt shall not have a maturity date earlier than the Termination Date in respect of the Revolving Credit Commitment and (2iv) the fair market value (as determined in a commercially reasonable manner by the case Borrower) of any Capitalized Lease the RR Assets used to which any Subsidiary secure Debt under this clause shall not materially exceed the amount of a Loan Party the Debt that is a party, any Contingent Obligation of being secured by such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,RR Assets;
(CL) Debt in respect of Hedge Agreements designed to hedge against fluctuations performance, surety or appeal bonds (in interest rates or foreign exchange rates incurred each case not in respect of borrowed money) provided in the ordinary course of business of the Parent, the Borrower and consistent with prudent business practices, andtheir Restricted Subsidiaries;
(DM) Non-Recourse Debt incurred under Hedge Agreements to the extent permitted under Section 5.02(k);
(including, without limitation, the JV Pro Rata Share of Non-Recourse N) Refinancing Debt of any Joint Venture) incurred in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default Debt under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest thereinSections 5.02(b)(i)(B), (BE), (F) is not secured by any Lien on any Borrowing Base Asset, and or (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset ValueK); and
(viiiO) unsecured Debt in respect of industrial revenue bonds or other similar governmental or municipal bonds; provided that before and after giving effect to 95 Amended and Restated KCSR Credit Agreement the incurrence of which would not result such Debt, the Loan Parties are otherwise in a Default under compliance with the financial covenants set forth in Section 5.04.
(ii) Debt owed by the Parent, the Borrower, or any Restricted Subsidiary of the Parent to Meridian Speedway which Debt shall not exceed an aggregate amount equal to $100,000,000 and be subordinated in right of payment to the Obligations of such Person under the Loan Documents pursuant to provisions at least as favorable to the Lenders as those set forth in the Affiliate Subordination Agreement (or otherwise, on terms reasonably satisfactory to the Administrative Agent).
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Partythe Borrower, Debt owed to any other Loan Party the Borrower or any wholly-to a wholly owned Subsidiary of any Loan Partythe 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, which Agent and such promissory notes shall (unless payable be pledged as security for the Obligations under the Loan Documents of the holder thereof and delivered to the Borrower) by their terms be subordinated Collateral Agent pursuant to the Obligations terms of the Security Agreement; and
(ii) in the case of the Loan Parties Parties;
(A) Debt under the Loan Documents;
(iiiB) the Surviving Debt described on Schedule 4.01(n) hereto Capitalized Leases and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv5.02(a)(iv)(2) not to exceed in the aggregate $10,000,000 6,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,;
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, andSurviving Debt;
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements indorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viiE) recourse secured DebtDebt under the Pre-Petition 1997 Credit Agreement;
(F) Debt under Senior Notes and the Senior Subordinated Notes;
(G) Debt extending the maturity of, or refunding or refinancing, in whole or in part, Debt described in clauses (B), (C), (E), and (F) above, provided that (1) the terms of any such Debt (A) is not recourse to extending, refunding or refinancing Debt, and of any Subsidiary Guarantor that owns agreement entered into and of any Borrowing Base Asset or any direct or indirect Equity Interest thereininstrument issued in connection therewith, are otherwise permitted by the Loan Documents, (B2) is 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 connection therewith, are no less favorable in any material respect to the Loan Parties or the Lender Parties than the terms of any agreement or instrument governing the Debt being extended, refunded or refinanced and the interest rate applicable to such extending refunding or refinancing Debt does not secured by any Lien on any Borrowing Base Assetexceed the then applicable market interest rate, and (C3) in the case of any Surviving Debt, the principal amount of such Surviving Debt shall not be increased above the principal amount, and interest accrued to the date of refinancing, thereof outstanding immediately prior to such extension, refunding or refinancing;
(H) Unsecured Debt in an aggregate outstanding principal amount not to exceed at any time $2,500,000;
(I) Debt incurred in connection with the Credit Card Program; and
(J) Subordinated Debt not to exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04$50,000,000.
Appears in 1 contract
Sources: Debtor in Possession Credit Agreement (Stage Stores Inc)
Debt. Create, 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 Borrower,
(A) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or commodity pricing, in each case incurred in the ordinary course of business and consistent with prudent business practice,
(B) Debt owed to a Loan Party; and
(C) Debt incurred by the Borrower (which may be guaranteed by the Guarantors) in connection with the issuance of unsecured senior notes (the “Permitted Senior Notes”); provided that (1) no Default or Event of Default shall have occurred and be continuing at the time of any such issuance or would be caused by such issuance, (2) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 5.04 after giving effect to the incurrence of such Debt and shall provide the Administrative Agent and Lenders with a pro forma compliance certificate evidencing such compliance at least 10 days (or such shorter period as may be agreed to by the Administrative Agent) in advance of any such Debt issuance, (3) such Debt shall rank no higher than pari passu with the Obligations, (4) the maturity of such Debt shall be at least six (6) months after the latest Termination Date, (5) the terms of such Debt may not restrict, limit or otherwise encumber the ability of the Borrower or any Subsidiary to grant Liens in favor of the Administrative Agent or any Lender under this Agreement or any other Loan Document, and (6) such Debt shall otherwise be issued on terms and conditions reasonably satisfactory to the Loan Documents;Administrative Agent.
(ii) in the case of any Loan Party or Subsidiary of the Borrower, (a) with respect to any Subsidiary of the Borrower that is a Loan Party, Debt owed to the Borrower or to any other Loan Party and (b) with respect to any Subsidiary of the Borrower that is not a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any the Borrower that is not a Loan Party, provided that; and
(iii) the Guaranties and, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations case of the Loan Parties and their Subsidiaries,
(A) Debt under the Loan Documents;
(iiiB) the Surviving Debt described on Schedule 4.01(n) hereto So long as no Default has occurred and any Refinancing Debt extendingis continuing, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
; provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (B) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (1B) in the event that a Default has occurred and is continuing;
(C) Capitalized Leases (other than those permitted by clause (F) below) not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease Leases to which any Subsidiary of a Loan Party is a party, any Contingent Obligation Debt of such the Loan Party of the type described in clause (j) of the definition of Debt guaranteeing the Obligations obligations of such Subsidiary under such the Capitalized Lease,
Leases permitted under this clause (C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and);
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in Person that becomes a Default under any Subsidiary of the covenants contained Borrower after the Effective Date in accordance with the terms of Section 5.045.02(f) which Debt does not exceed $10,000,000 in the aggregate and is existing at the time such Person becomes a Subsidiary of the Borrower;
(vE) So long as no Default has occurred and is continuing, other unsecured Debt of the Borrower in an aggregate principal amount not to exceed $10,000,000 at any one time outstanding; provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (E) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (E) in the case of the Parent Guarantor event that a Default has occurred and the Borrower, Debt consisting of Customary Carve-Out Agreementsis continuing;
(viF) endorsements the Surviving Debt set forth on Schedule 5.02(b), and any Debt extending the maturity of, or 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;
(G) Contingent obligations of the Loan Parties or any of their Subsidiaries in an amount not to exceed $10,000,000; provided that such contingent obligations are unsecured;
(H) Endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viiI) recourse secured DebtDebt in respect of letters of credit in an aggregate amount not to exceed $10,000,000 at any time outstanding;
(J) Debt in respect of indemnification obligations in connection with bonds and letters of credit related to self insurance and insurance programs and policies of the Loan Parties and their respective Subsidiaries;
(K) Obligations in respect of the Borrower’s Non-Qualified Deferred Compensation Plan to the extent of assets of such plan are on the Borrower’s balance sheet;
(L) Guarantee obligations of the Guarantors in respect of Debt of the Borrower permitted pursuant to Section 5.02(b)(i)(C); and
(M) Permitted Convertible Indebtedness; provided, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset no Default or any direct Event of Default shall exist immediately before or indirect Equity Interest thereinimmediately after giving effect thereto on a pro forma basis, (B) the Borrower shall deliver to the Administrative Agent a certificate from a Responsible Officer, in form and detail reasonably satisfactory to the Administrative Agent, confirming the foregoing and demonstrating compliance with the financial covenants set forth in Section 5.04 after giving effect thereto on a pro forma basis, (C) such Debt is not secured at any time guaranteed by any Lien on Subsidiary that is not a Guarantor, (D) the terms thereof may not restrict, limit or otherwise encumber the ability of the Borrower or any Borrowing Base AssetSubsidiary to grant Liens in favor of the Administrative Agent or any Lender under this Agreement or any other Loan Document, and (CE) no such Debt shall not exceed (x) have a scheduled maturity or require any regularly scheduled amortization payment to be made prior to the date that is 91 days after the Termination Date with respect to the Revolving A Credit Facility or (y) be subject to any mandatory redemption, mandatory repurchase or other mandatory prepayments of principal (including early conversion triggers) other than those that, in the aggregate at Borrower’s good faith judgment, are customary for such Debt (it being understood that any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt mandatory redemption, mandatory repurchase or other mandatory prepayments contained in the incurrence of which would not result 2021 Convertible Notes shall be deemed customary in a Default under Section 5.04the Borrower’s good faith judgment).
Appears in 1 contract
Sources: Credit Agreement (Cracker Barrel Old Country Store, Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of the Borrower,
(A) Debt in respect of Hedge Agreements required pursuant to Section 5.01(o) or other Hedge Agreements designed to hedge against fluctuations in interest rates incurred in the ordinary course of business and consistent with prudent business practice; provided that the aggregate notional amount for all such Hedge Agreements shall not exceed $75,000,000 at any Loan Party or any Subsidiary of a Loan Partytime, and
(B) Debt owed to any other Loan Party or any wholly-a wholly owned Subsidiary of any Loan Partythe Borrower, provided thatwhich Debt (x) shall constitute Pledged Debt, in each case, such Debt (y) shall be on subordinated terms reasonably acceptable to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance reasonably satisfactory to the Administrative Agent, which Agent and such promissory notes shall (unless payable to the Borrower) by their terms be subordinated to pledged as security for the Obligations of the Loan Parties holder thereof under the Loan DocumentsDocuments to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement;
(ii) in the case of any Subsidiary of the Borrower, Debt owed to the Borrower or to a wholly owned Subsidiary of the Borrower, provided that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall be on terms reasonably acceptable to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance reasonably 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) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extendingGuaranties and, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) Borrower and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) (x) so long as no Default has occurred and is continuing, Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 3,000,000 at any time outstanding, and (y) Debt assumed pursuant to a Permitted Asset Exchange and secured by Liens permitted by Section 5.02(a)(iv) not to exceed, together with any Debt assumed pursuant to clause (C)(y) below, $1,000,000,
(BC) (1x) Capitalized Leases not to exceed in the aggregate $10,000,000 3,000,000 at any time outstanding, and (2y) in the case of Capitalized Leases assumed pursuant to a Permitted Asset Exchange not to exceed, together with any Capitalized Lease Debt assumed pursuant to which any Subsidiary of a Loan Party is a partyclause (B)(y) above, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease$1,000,000,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 1 contract
Debt. Create, 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 CBI,
(A) Debt in respect of Hedge Agreements maintained under Section 5.01(o) and other Hedge Agreements not in violation of Section 5.02(n); PROVIDED that no Hedge Agreement with any Person other than a Lender Party (or Affiliate of a Lender Party) may be a Secured Hedge Agreement,
(B) Subordinated Debt of CBI evidenced by the Subordinated Debt Documents not to exceed the aggregate principal amount of the sum of (x) the principal amount of Debt permitted by Section 5.02(b)(iii)(D) which constitutes Subordinated Debt and (y) $500 million principal amount of additional Subordinated Debt issued after the date hereof at any time outstanding, and
(C) Paid in kind interest under the Loan DocumentsOak Hill Indenture as in effect on the date hereof;
(ii) in the case of any Loan Party or any Subsidiary of a Loan PartyCBI, Debt owed to any other Loan Party CBI or any wholly-to a wholly owned Subsidiary of any Loan PartyCBI, provided PROVIDED that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall be on terms acceptable to the Administrative Agent Agents and (z) shall be if evidenced by promissory notes notes, in form and substance satisfactory to the Administrative Agent, which Agents and such promissory notes shall (unless payable to the Borrower) by their terms be subordinated to pledged as security for the Obligations of the Loan Parties holder thereof under the Loan Documents;Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreements; and
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) CBI and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed $70,000,000 in the aggregate $10,000,000 principal amount at any time outstanding,
(B) (1C) Capitalized Leases not to exceed in the aggregate $10,000,000 75,000,000 at any time outstanding, and to the extent included in "Capitalized Leases" for purposes of GAAP, IRUs incurred in the ordinary course of business,
(D) the Surviving Debt (other than Debt under (iii)(C) above), and any Debt extending the maturity of, or refunding, renewal or refinancing, in whole or in part, any Surviving Debt, PROVIDED that the terms of any such extending, refunding, renewal 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 (1) the principal amount of such Surviving Debt shall not be increased above the principal amount thereof outstanding (plus accrued interest and fees thereon) immediately prior to such extension, refunding, renewal or refinancing, (2) the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding, renewal or refinancing, (3) such Surviving Debt as so refunded, refinanced or renewed shall not mature prior to the case stated maturity date or mandatory redemption date of any Capitalized Lease the Surviving Debt being so extended, refunded, refinanced or renewed and (4) if the Surviving Debt being so extended, refunded, refinanced or renewed is subordinated in right of payment or otherwise to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of the Borrowers or any of their Subsidiaries under and in respect of the Loan Documents, such Subsidiary under extended, refunded, renewed or refinanced Surviving Debt shall be subordinated to such Capitalized LeaseObligations to at least the same extent,
(CE) unsecured Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business for borrowed money or for the deferred purchase price of property or services, maturing after the Termination Date, and consistent with prudent business practicesaggregating, andon a Consolidated basis, not more than $65,000,000 in aggregate principal amount at any one time outstanding,
(DF) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;,
(viiG) recourse secured Debt, provided [Intentionally Omitted]
(H) unsecured short-term Debt in an aggregate principal amount not to exceed $10,000,000,
(I) Contingent Obligations of any of the Borrowers or any of the Subsidiary Guarantors guaranteeing all or any portion of the outstanding Obligations of any of the other Loan Parties; PROVIDED that such Obligations are not otherwise prohibited under the terms of the Loan Documents and such Contingent Obligations are unsecured,
(J) Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, consisting of debits and (C) shall not exceed credits between CBI and its Subsidiaries arising under CBI's centralized cash management system more particularly described in the aggregate at any time outstanding 10% of Total Asset Valueattached Schedule 5.02(b)(iii)(J); and
(viiiK) unsecured Debt of one or more Foreign Subsidiaries arising in the incurrence ordinary course of which would business in an aggregate principal amount not result to exceed $5,000,000 at any time outstanding; provided that all such Debt incurred pursuant to this subclause (K) shall be nonrecourse in a Default under Section 5.04all respects to the property and assets of the Loan Parties and their Subsidiaries (other than one or more of the Foreign Subsidiaries).
Appears in 1 contract
Sources: Credit Agreement (Broadwing Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any each Loan Party or any Subsidiary of a Loan Party(other than the Parent Guarantor), Debt owed to any other Loan Party (other than the Parent Guarantor) or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iiiii) in the Surviving case of any Subsidiary of a Loan Party, Debt described owed to any Loan Party (other than the Parent Guarantor) or to any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such Debt (y) shall be on Schedule 4.01(nterms acceptable to the Administrative Agent and (z) hereto shall be evidenced by promissory notes in form and any Refinancing Debt extendingsubstance satisfactory to the Administrative Agent, refunding or refinancing such Surviving Debtwhich promissory notes shall (unless payable to the Borrower) by their terms be subordinate to the Obligations of the Loan Parties under the Loan Documents;
(iviii) in the case of each Loan Party (other than the Parent Guarantor) and its 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 25,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 50,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease Leases to which any Subsidiary of a Loan Party is a party, any Contingent Obligation Debt of such Loan Party of the type described in clause (i) of the definition of "DEBT" guaranteeing the Obligations of such Subsidiary under such Capitalized LeaseLeases,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 1 contract
Debt. Create, 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 Borrower,
(A) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or commodity pricing, in each case incurred in the ordinary course of business and consistent with prudent business practice,
(B) Debt owed to a direct or indirect wholly-owned Subsidiary of the Borrower, which Debt (x) shall constitute Pledged Debt, (y) shall be subordinated to any Debt of the Borrower under the Loan Documents;Documents on terms reasonably acceptable to the Administrative Agent and (z) if evidenced by promissory notes, shall be in form and substance satisfactory to the Administrative Agent and 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 Pledge Agreement; and
(C) Debt incurred by the Borrower (which may be guaranteed by the Guarantors) in connection with the issuance of unsecured senior notes (the “Permitted Senior Notes”); provided that (I) no Default or Event of Default shall have occurred and be continuing at the time of any such issuance or would be caused by such issuance, (II) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 5.04 after giving effect to the incurrence of such Debt and shall provide the Administrative Agent and Lenders with a pro forma compliance certificate evidencing such compliance at least 10 days (or such shorter period as may be agreed to by the Administrative Agent) in advance of any such Debt issuance, (III) the Borrower shall comply with the mandatory prepayment requirements set forth in Section 2.06(b)(ii), (IV) such Debt shall rank no higher than pari passu with the Obligations, (V) the maturity of such Debt shall be at least six (6) months after the latest Termination Date, (VI) the terms of such Debt may not restrict, limit or otherwise encumber the ability of the Borrower or any Subsidiary to incur Liens in favor of the Administrative Agent or any Lender under this Agreement or any other Loan Document, and (VII) such Debt shall otherwise be issued on terms and conditions reasonably satisfactory to the Administrative Agent.
(ii) in the case of any Loan Party or any Subsidiary of a Loan Partythe Borrower, Debt owed to any other Loan Party the Borrower or any wholly-to a wholly owned Subsidiary of any Loan Partythe Borrower, provided that, in each case, to the extent such Debt exceeds $10,000,000 in the aggregate, 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, which Agent and such promissory notes shall (unless payable to the Borrower) by their terms be subordinated to 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 Pledge Agreement; and
(iii) the Guaranties and, in the case of the Loan Parties and their Subsidiaries,
(A) Debt under the Loan Documents;
(iiiB) the Surviving Debt described on Schedule 4.01(n) hereto So long as no Default has occurred and any Refinancing Debt extendingis continuing, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
; provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (B) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (1B) in the event that a Default has occurred and is continuing;
(C) Capitalized Leases (other than those permitted by clause (F) below) not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease Leases to which any Subsidiary of a Loan Party is a party, any Contingent Obligation Debt of such the Loan Party of the type described in clause (j) of the definition of “Debt” guaranteeing the Obligations of such Subsidiary under such the Capitalized Lease,
Leases permitted under this clause (C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and);
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in Person that becomes a Default under any Subsidiary of the covenants contained Borrower after the date hereof in accordance with the terms of Section 5.045.02(f) which Debt does not exceed $10,000,000 in the aggregate and is existing at the time such Person becomes a Subsidiary of the Borrower;
(vE) So long as no Default has occurred and is continuing, other unsecured Debt of the Borrower in an aggregate principal amount not to exceed $10,000,000 at any one time outstanding; provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (E) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (E) in the case of the Parent Guarantor event that a Default has occurred and the Borrower, Debt consisting of Customary Carve-Out Agreementsis continuing;
(viF) endorsements the Surviving Debt, and any Debt extending the maturity of, or 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 and 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;
(G) Contingent obligations of the Loan Parties or any of their Subsidiaries in an amount not to exceed $10,000,000; provided that such contingent obligations are unsecured;
(H) Endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viiI) recourse secured Debt, provided that such Debt (A) is in respect of letters of credit in an aggregate amount not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate $2,000,000 at any time outstanding 10% outstanding;
(J) Debt in respect of Total Asset Valueindemnification obligations in connection with bonds and letters of credit related to self insurance and insurance programs and policies of the Loan Parties and their respective Subsidiaries; and
(viiiK) unsecured Debt Obligations in respect of the incurrence Borrower’s Non-Qualified Deferred Compensation Plan to the extent of which would not result in a Default under Section 5.04assets of such plan are on the Borrower’s balance sheet.
Appears in 1 contract
Sources: Credit Agreement (Cracker Barrel Old Country Store, Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Partythe Borrower, Debt owed to any other Loan Party the Borrower or any wholly-to a wholly owned Subsidiary of any Loan Partythe 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, which Agent and such promissory notes shall (unless payable to the Borrower) by their terms be subordinated to pledged as security for the Obligations of the Loan Parties under the Loan Documents;Documents of the holder thereof and delivered to the Collateral Agent pursuant to the terms of the Security Agreement; and
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(ivii) in the case of each the Loan Party (other than the Parent Guarantor) and its Subsidiaries,Parties;
(A) Debt under the Loan Documents and any Debt (if any) in relation to the Securitization Program;
(B) Capitalized Leases and Debt secured by Liens permitted by Section 5.02(a)(iv5.02(a)(iv)(2) not to exceed in the aggregate $10,000,000 20,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,;
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, andSurviving Debt;
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements indorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viiE) recourse secured DebtDebt extending the maturity of, or refunding or refinancing, in whole or in part, Debt described in clauses (B) or (C) above, provided that (1) the terms of any such Debt (A) is not recourse to extending, refunding or refinancing Debt, and of any Subsidiary Guarantor that owns agreement entered into and of any Borrowing Base Asset or any direct or indirect Equity Interest thereininstrument issued in connection therewith, are otherwise permitted by the Loan Documents, (B2) is 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 connection therewith, are no less favorable in any material respect to the Loan Parties or the Lender Parties than the terms of any agreement or instrument governing the Debt being extended, refunded or refinanced and the interest rate applicable to such extending refunding or refinancing Debt does not secured by any Lien on any Borrowing Base Assetexceed the then applicable market interest rate, and (C3) in the case of any Surviving Debt, the principal amount of such Surviving Debt shall not exceed be increased above the principal amount, and interest accrued to the date of refinancing, thereof outstanding immediately prior to such extension, refunding or refinancing;
(F) Debt in respect of Secured Hedge Agreements designed to Hedge against fluctuations in interest rates incurred in the ordinary course of business and consistent with prudent business practice with the aggregate Agreement Value thereof not to exceed $10,000,000 at any time outstanding 10% of Total Asset Valueoutstanding; and
(viiiG) unsecured Debt the incurrence of which would debt in an aggregate outstanding principal amount not result in a Default under Section 5.04to exceed at any time $5,000,000.
Appears in 1 contract
Sources: Credit Agreement (Stage Stores Inc)
Debt. Create, incur, assume Create or suffer to exist, or permit any of its Subsidiaries to create, incur, assume create or suffer to exist, any DebtDebt other than the following, exceptprovided that any Debt permitted by any clause below shall be permitted under this Section 5.02(d), notwithstanding that such Debt would not be permitted by any other clause:
(i) Debt owed to the Borrower or to a Consolidated Subsidiary of the Borrower to the extent constituting an Investment permitted under the Loan Documents;
(ii) in the case of any Section 5.02(i), provided that all such Debt owed by a Loan Party or any Subsidiary of to a Person that is not a Loan Party, Debt owed Party (x) shall be subordinated to any other the Table of Contents Obligations of such Loan Party pursuant to an intercompany subordination agreement or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such Debt other arrangements reasonably satisfactory to the Agent and (y) shall be on terms acceptable evidenced by an intercompany note, and pledged to the Administrative Agent (or the DIP Term Loan Agent in accordance with the Intercreditor Agreement) as Collateral,
(ii) Debt existing on the Effective Date and (z) shall be evidenced by promissory notes in form described on Schedule 5.02(d), and substance satisfactory to the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;any Permitted Refinancing thereof,
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens of the type described in and to the extent permitted by Section 5.02(a)(iv5.02(a)(iii) and (vi) in an aggregate amount not to exceed $25,000,000 at any time outstanding,
(iv) Debt of a Person existing at the time such Person is amalgamated, merged into or consolidated with the Borrower or any Subsidiary of the Borrower or becomes a Subsidiary of the Borrower; provided that such Debt was not created in contemplation of such amalgamation, merger, consolidation or acquisition,
(v) Debt arising under the Loan Documents,
(vi) [reserved],
(vii) Debt incurred by Kodak International Finance Limited, a company organized and existing under the laws of England, (x) in connection with short term working capital needs in an aggregate amount not to exceed $25,000,000 at any time outstanding and (y) consisting of Hedge Agreement Obligations entered into in the ordinary course of business to protect the Borrower and its Subsidiaries against fluctuations in commodities, interest or exchanges rates and permitted under Section 5.02(m),
(viii) Debt incurred by Subsidiaries organized under the laws of any jurisdiction outside of the United States in an aggregate amount not to exceed $40,000,000 at any time outstanding,
(ix) Debt of Subsidiaries that are not Loan Parties in respect of (a) treasury management services, clearing, corporate credit card and related services provided to any such Subsidiaries, (b) letters of credit issued for the benefit of any such Subsidiaries, (c) Hedge Agreements entered into by any such Subsidiaries and permitted under Section 5.02(m), and (d) bank guarantees with respect to such Subsidiaries, in an aggregate amount for this clause (ix) not to exceed in the aggregate $10,000,000 at any time outstanding,
(Bx) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;,
(viixi) recourse secured Debt, Debt which exists or may exist under the Secured Agreements in existence from time to time,
(xii) Debt which exists or may exist under the Existing Secured Agreements in existence from time to time; provided that such Debt (A) is shall not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not be secured by any Lien on any Borrowing Base Asset, other than a Lien permitted under Section 5.02(a)(x),
(xiii) unsecured Debt consisting of guarantees of amounts owing by customers of the Borrower under equipment and (C) shall vendor financing programs in an aggregate amount not to exceed in the aggregate $25,000,000 at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.outstanding,
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, exceptDebt other than:
(i) Debt under the Loan Documents;
(ii) in the case of the Parent Borrower,
(A) Debt in respect of Hedge Agreements with one or more Secured Parties designed to hedge against fluctuations in interest rates or 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 $1,000,000 at any time outstanding,
(B) Subordinated Debt in an aggregate amount not to exceed $20,000,000 at any time outstanding issued or incurred to finance, in whole or in part, any acquisition under Section 5.02(f)(viii) which Debt has been issued to the seller of the company or business being acquired at the time of such acquisition; PROVIDED, HOWEVER, that such Debt shall be subordinated to the Obligations of the Loan Party or any Parties under the Loan Documents on terms and conditions satisfactory to the Required Lenders,
(C) Debt owed to a wholly owned Subsidiary of the Parent Borrower (other than the Sub Borrower), so long as no Default shall have occurred and be continuing at the time of issuance or incurrence of such Debt or would result therefrom and which Debt (x) shall, in the case of Debt owed to a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Partyconstitute Pledged Debt, provided that, in each case, such 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 AgentAgent and such promissory notes, which promissory notes in the case of Debt owed to a Loan Party, shall (unless payable to the Borrower) by their terms be subordinated to pledged as security for the Obligations of the Loan Parties holder thereof under the Loan Documents;Documents and delivered to the Administrative Agent pursuant to the terms of the Security Agreement,
(iiiD) Debt under the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extendingSenior Notes Indenture in an aggregate principal amount not to exceed $180,000,000 in original issue amount, refunding or refinancing such Surviving Debt;and
(ivE) unsecured Debt incurred in the ordinary course of business and aggregating not more than $5,000,000 at any one time outstanding,
(ii) in the case of each Loan Party (other than the Parent Guarantor) and its Borrower's Subsidiaries,
(A) in the case of the Specified Subsidiaries, Debt owed to the Sub Borrower; PROVIDED that, in each case, such Debt (w) shall constitute Pledged Debt, (x) shall be on terms acceptable to the Administrative Agent, (y) shall be evidenced by promissory notes in substantially the form of Exhibit I-1 hereto, such promissory notes shall be secured by the personal property, and such other property as the Administrative Agent shall require from time to time, of the makers thereof and such promissory notes shall be pledged as security for the Obligations of the Sub Borrower under the Loan Documents and delivered to the Administrative Agent pursuant to the terms of the Security Agreement and Section 5.01(o) and (z) the Obligations of the Specified Subsidiaries under such promissory notes shall be guaranteed by the Foreign Guarantors pursuant to the Foreign Guaranty, PROVIDED FURTHER, HOWEVER, that no such Debt may be incurred by any such Specified Subsidiary unless and until the requirements of Section 5.01(q) and of clauses (w) through (z) above, in each case relating to such Specified Subsidiary, shall, in the judgment of the Administrative Agent, have been satisfied, and
(B) in the case of any of the Subsidiaries of the Parent Borrower (other than the Sub Borrower and any Excluded Subsidiary), Debt owed to the Parent 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 substantially the form of Exhibit I-2 hereto or otherwise 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 and delivered to the Administrative Agent pursuant to the terms of the Security Agreement and Section 5.01(o),
(iii) in the case of the Parent Borrower and its Subsidiaries (other than the Sub Borrower and the Excluded Subsidiaries),
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section 5.02(a)(iv5.02(a)(iii) not to exceed in the aggregate $10,000,000 5,000,000 at any time outstanding,
(BC) (1) Debt consisting of Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, outstanding the sum of (1) $5,000,000 and (2) an amount equal to the amount by which the aggregate Working Capital Commitments in effect immediately prior to giving effect to the case incurrence of such Debt pursuant to this subclause (2) exceeds $20,000,000, PROVIDED, HOWEVER, that immediately upon the incurrence of any Capitalized Lease Debt pursuant to which any Subsidiary of a Loan Party is a partythis subclause (2), any Contingent Obligation an amount equal to the amount of such Loan Party guaranteeing Debt shall be applied to prepay the Obligations Advances pursuant to Section 2.06(b)(i) and the Facilities shall be permanently reduced by the amount of such Subsidiary under such Capitalized LeaseDebt pursuant to Section 2.05(b)(i),
(CD) the Surviving Debt, and any Debt extending the maturity of, or refunding or refinancing, in respect whole or in part, any Surviving Debt; PROVIDED that the terms of Hedge Agreements designed any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are on substantially the same terms as the Debt being extended, refunded or refinanced otherwise permitted by the Loan Documents; and PROVIDED FURTHER that the principal amount of such Surviving Debt shall not be increased above the principal amount thereof outstanding immediately prior to hedge against fluctuations such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or in interest rates connection with such extension, refunding or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practicesrefinancing, and
(DE) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements indorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;, and
(viiiv) recourse secured Debt, provided that such Debt in the case of the Sub Borrower,
(A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest thereinDebt under the Loan Documents, and
(B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed indorsement of negotiable instruments for deposit or collection or similar transactions in the aggregate at any time outstanding 10% ordinary course of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04business.
Appears in 1 contract
Debt. Create, incur, assume or suffer to existassume, permit, guarantee, or permit any of its Subsidiaries otherwise become or remain, directly or indirectly, liable with respect to create, incur, assume or suffer to exist, any Debt, except:
(ia) the Obligations and any other Debt under evidenced by this Agreement and the other Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1b) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practicesbusiness, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share in an aggregate outstanding amount not in excess of Non-Recourse Debt of $250,000 at any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04one time;
(vc) in Contingent Obligations resulting from the case endorsement of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viid) recourse secured DebtPermitted Acquired Indebtedness;
(e) Debt in respect of Earn-Out Arrangements, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed $2,000,000 in the aggregate at any time, and Seller Notes incurred in connection with a Permitted Acquisition;
(f) Debt consisting of loans or advances from time to time made by Ultimate Parent or its Subsidiaries to JMP Securities in an aggregate outstanding 10% amount at any one time not to exceed $15,000,000;
(g) Debt incurred by JMP Securities and owed to Agent consisting of Total Asset Valueloans or advances from time to time made in connection with underwriting advances or lines of credit that are subject to the applicable FINRA form, that are advanced to JMP Securities to permit it to meet its net capital requirements under applicable FINRA rules or under SEC Rule 15c3-1, so long as (y) no Event of Default or Unmatured Event of Default has occurred and is continuing at the time that such Debt is proposed to be incurred or would result therefrom and (z) no more than $15,000,000 of such loans is funded from the direct or indirect proceeds of a Borrowing under this Agreement;
(h) [Intentionally omitted];
(i) Advances by any Subsidiary of Ultimate Parent to Ultimate Parent, any Subsidiary or Affiliate of Ultimate Parent or any Excluded Fund for the purpose of funding overhead and other operating expenses, so long as (x) the aggregate amount of such advances made by a Loan Party during any fiscal year of Ultimate Parent does not exceed $1,000,000 and (y) no Event of Default or Unmatured Event of Default has occurred and is continuing at the time that such Debt is proposed to be incurred or would result therefrom;
(j) Intercompany Debt advanced by a Loan Party to a domestic Loan Party, so long as such domestic Loan Party is party to the Intercompany Subordination Agreement;
(k) Guarantees by any Loan Party of any Debt of any other Loan Party otherwise permitted hereunder (in each case, other than Permitted Acquired Indebtedness);
(l) Reimbursement obligations in respect of letters of credit issued after the Final Revolving Commitment Termination Date, to the extent that CNB elects not to issue such letters of credit under this Agreement (it being understood that if CNB does not notify Borrower that it has elected to issue such letters of credit under this Agreement within four (4) Business Days after the date when CNB receives a written request therefor from Borrower, CNB shall be deemed to have elected not to issue the requested letter of credit);
(m) any Refinancing Debt in respect of any Debt identified on the Disclosure Statement with respect to this Section 6.1, or Debt described above in clauses (b), (d) or (l); and
(viiin) unsecured other Debt the incurrence of which would not result otherwise permitted under this Section 6.1 in a Default under Section 5.04an aggregate principal amount not to exceed $2,000,000 at any one time outstanding.
Appears in 1 contract
Sources: Credit Agreement (JMP Group LLC)
Debt. Create, incur, assume or suffer to exist, or permit any of its Restricted Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) in the case of the Borrower, Debt owed to a Restricted Subsidiary of the Borrower, which Debt shall be subject to the Lien of the Security Agreement and, if evidenced by promissory notes, shall constitute Pledged Debt and such promissory notes shall be in form and substance satisfactory to the Administrative Agent and shall be pledged as security for the Obligations of the holder thereof under the Loan Documents;Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement, and
(ii) in the case of any Loan Party or any Restricted Subsidiary of a Loan Partythe Borrower, Debt owed to any other Loan Party the Borrower or any wholly-owned to another Restricted Subsidiary of any Loan Partythe Borrower, provided that, in each case, such which Debt (y) shall be on terms acceptable subject to the Administrative Agent and (z) shall be Lien of the Security Agreement and, if evidenced by promissory notes, shall constitute Pledged Debt and such promissory notes shall be in form and substance satisfactory to the Administrative Agent, which promissory notes Agent and shall (unless payable to the Borrower) by their terms be subordinated to pledged as security for the Obligations of the Loan Parties holder thereof under the Loan Documents;Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement; and
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) Borrower and its Restricted Subsidiaries,
(A) Debt under the Loan Documents,
(B) so long as no Default under Section 6.01(a) or (f) and no Event of Default has occurred or is continuing, Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate amount of which, when aggregated with the aggregate amount of Capitalized Leases outstanding under clause (C) below, shall not exceed $10,000,000 35,000,000 at any time outstanding,
(B) (1C) Capitalized Leases not to exceed in the aggregate amount of which, when aggregated with the aggregate amount of Debt outstanding under clause (B) above, shall not exceed $10,000,000 35,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(CD) the Senior Notes, any additional unsecured notes issued under the Senior Notes Indenture or a supplement thereto with the same terms as the Senior Notes (except for interest rates, which shall not exceed the then applicable market interest rate) in an aggregate amount not to exceed $50,000,000 (the “Additional Senior Notes”) and the Surviving Debt, and any Debt extending the maturity of, or refunding or refinancing, in whole or in part, the Senior Notes, the Additional Senior Notes and 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 any such extending, refunding or refinancing Debt shall not be above the principal amount of the Debt being extended, refunded or refinanced 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, 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 Borrower and its Restricted Subsidiaries or the Lender Parties than the terms of any agreement or instrument governing the Debt being extended, refunded or refinanced and the interest rate applicable to any such extending, refunding or refinancing Debt does not exceed the then applicable market interest rate, and provided still further that, the aggregate principal amount of the Senior Notes and the Additional Senior Notes (and any Debt extending, refunding or refinancing the Senior Notes and the Additional Senior Notes) shall not exceed $450,000,000 minus an amount equal to all principal payments made thereon,
(E) so long as no Default under Section 6.01(a) or (f) and no Event of Default has occurred or is continuing, unsecured Debt of any Person that becomes a Restricted Subsidiary of the Borrower after the date hereof in accordance with the terms of Section 5.02(f) which Debt is existing at the time such Person becomes a Restricted Subsidiary of the Borrower (other than Debt incurred solely in contemplation of such Person becoming a Restricted Subsidiary of the Borrower),
(F) Debt in respect of Secured Hedge Agreements or unsecured Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practicespractice,
(G) so long as no Default under Section 6.01(a) or (f) and no Event of Default has occurred and is continuing, Debt in respect of Permitted Liens,
(H) so long as no Default under Section 6.01(a) or (f) and no Event of Default has occurred and is continuing or would result therefrom, secured Debt incurred or assumed in connection with acquisitions of any Person that becomes a Restricted Subsidiary of the Borrower after the date hereof in accordance with the terms of Section 5.02(f), which Debt is existing at the time such Person becomes a Restricted Subsidiary of the Borrower (other than Debt incurred solely in contemplation of such Person becoming a Restricted Subsidiary of the Borrower), in an aggregate principal amount not to exceed $35,000,000 at any time outstanding,
(I) Off Balance Sheet Obligations of the Borrower and its Restricted Subsidiaries existing on the Closing Date and comprising a portion of the Surviving Debt and so long as no Default under Section 6.01(a) or (f) and no Event of Default has occurred and is continuing, additional Off Balance Sheet Obligations of the Borrower and its Restricted Subsidiaries, provided that the aggregate amount of all Off Balance Sheet Obligations permitted under this clause (I) shall not exceed $35,000,000 at any time outstanding, and
(DJ) Non-Recourse Debt so long as no Default under Section 6.01(a) or (includingf) and no Event of Default has occurred and is continuing, without limitation, the JV Pro Rata Share of Non-Recourse other secured and unsecured Debt of any Joint Venture) the Borrower in respect of Assets other than Borrowing Base Assets, the incurrence of which would an aggregate principal amount not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate $25,000,000 at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04outstanding.
Appears in 1 contract
Debt. CreateNo Note Party shall, at any time, create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(ia) Debt under the Loan Note Documents;
(b) Debt of the Note Parties in respect of (i)(A) the Existing 2019 Term Loans, (B) the Existing 2017 Term Loans, (C) the Existing 2017 Revolving Credit Commitments and (D) the Existing 2016 Term Loans and (ii) Refinancing Debt extending, refunding or refinancing any of the Debt described in clause (i);
(c) in the case of any Loan Note Party or any Subsidiary of a Loan Note Party, Debt owed to any other Loan Note Party or any wholly-owned Subsidiary of any Loan Note Party, provided that, in each case, such Debt (yi) shall be on terms acceptable to the Administrative Agent Controlling Party and (zii) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative AgentControlling Party, which promissory notes shall (unless payable to the BorrowerIssuer) by their terms be subordinated to the Note Obligations of the Loan Note Parties under the Loan Note Documents;
(iiid) the Surviving Debt described on Schedule 4.01(n) hereto 4.02 and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(ive) in the case of each Loan Note Party (other than the Parent Guarantor) and its Subsidiaries,
(Ai) Debt secured by Liens permitted by Section 5.02(a)(iv4.01(d) not to exceed in the aggregate $10,000,000 at any time outstanding,
(Bii) (1A) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2B) in the case of any Capitalized Lease to which any Subsidiary of a Loan Note Party is a party, any Contingent Obligation of such Loan Note Party guaranteeing the Note Obligations of such Subsidiary under such Capitalized Lease,
(Ciii) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(Div) (A) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Specified Debt Assets, ; provided that (1) the Leverage Ratio (on a pro forma basis after giving effect to the incurrence of which would such Debt and the use of proceeds thereof) is not result in greater than 60% and (2) the Secured Debt Leverage Ratio (on a Default pro forma basis after giving effect to the incurrence of such Debt and the use of proceeds thereof) is not greater than (x) for so long as the Senior Obligations constitute secured Debt, 50%, or (y) otherwise, 45%, and (B) Refinancing Debt extending, refunding or refinancing Debt permitted under any of the covenants contained in Section 5.044.02(e)(iv)(A);
(vf) in the case of the Parent Guarantor and the BorrowerIssuer, Debt consisting of Customary Carve-Out Agreements;
(vig) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viii) recourse secured or unsecured Debt; provided that (A) in the case of secured Debt, provided that (1) the Leverage Ratio (on a pro forma basis after giving effect to the incurrence of such Debt (Aand the use of proceeds thereof) is not recourse greater than 60% and (2) the Secured Debt Leverage Ratio (on a pro forma basis after giving effect to any Subsidiary Guarantor that owns any Borrowing Base Asset the incurrence of such Debt and the use of proceeds thereof) is not greater than (1) for so long as the Senior Obligations constitute secured Debt, 50%, or any direct or indirect Equity Interest therein(2) otherwise, 45%, (B) in the case of unsecured Debt, the Leverage Ratio (on a pro forma basis after giving effect to the incurrence of such Debt and the use of proceeds thereof) is not greater than 60%, (C) such Debt does not constitute an obligation (including pursuant to a guarantee) of any Person other than a Note Party, (D) in the case of secured Debt, such Debt is not secured by any Lien on any Borrowing Base Assetasset other than the assets that secure the Credit Facilities (or would have been required to secure the Credit Facilities pursuant to the terms thereof), (E) the stated final maturity of such Debt shall not be earlier than (1) in the case of secured Debt, the date that is 180 days prior to the Final Maturity Date, and (C2) in the case of unsecured Debt, the Final Maturity Date, (F) the Weighted Average Life to Maturity of such Debt shall not exceed be shorter than (1) in the aggregate at case of secured Debt, 180 days shorter than the Weighted Average Life to Maturity of the Notes and (2) in the case of unsecured Debt, the Weighted Average Life to Maturity of the Notes, in each case, remaining as of the date of the incurrence of such Debt and (G) the other material terms, taken as a whole, of any time outstanding 10% such Debt are no less favorable in any material respect to the Note Parties than the terms of Total Asset Valuethe Note Documents and (ii) Refinancing Debt extending, refunding or refinancing Debt permitted under Section 4.02(h)(i); and
(viiii) unsecured Debt for borrowed money from a Governmental Authority under the incurrence CARES Act or any other federal or state governmental program intended to mitigate the impact of which would the COVID-19 pandemic so long as (i) such Debt does not result constitute an obligation (including pursuant to a guarantee) of any Note Party and (ii) the Specified Debt Assets and the Equity Interests in a Default the Note Parties do not become subject to any Liens in connection with such Debt (“Qualified Government Debt”); provided, however, that 100% of the net cash proceeds of any Qualified Government Debt shall be used, in the Issuer’s discretion, only for Permitted Uses (as defined in Amendment No. 3 to the 2017 Credit Agreement as in effect on the Signing Date) or to repay the Senior Obligations. Notwithstanding anything to the contrary in this Indenture or any other Note Document, (a) all Debt under the Notes Documents will be deemed to have been incurred in reliance only on the exception in Section 5.044.02(a) and (b) all Debt in respect of the Existing 2019 Term Loans, the Existing 2017 Term Loans, the Existing 2017 Revolving Credit Commitments and the Existing 2016 Term Loans will be deemed to have been incurred in reliance only on the exceptions in Section 4.02(b)(i)(A), Section 4.02(b)(i)(B), Section 4.02(b)(i)(C) and Section 4.02(b)(i)(D), respectively.
Appears in 1 contract
Sources: Indenture (Hersha Hospitality Trust)
Debt. CreateThe Issuer will not, and will not permit any other Note Party to, incur, create, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, exist any Debt, except:
(ia) Debt the Notes or other Obligations arising under the Loan Note Documents or any guaranty of or suretyship arrangement for the Notes or other Obligations arising under the Note Documents;
(iib) in the case Debt of any Loan Note Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such Debt (y) shall be on terms acceptable to the Administrative Agent under Purchase Money Security Interests and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Capital Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,2,000,000;
(Cc) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates associated with worker’s compensation claims, bonds or foreign exchange rates incurred surety obligations required by Governmental Requirements or by third parties in the ordinary course of business in connection with the operation of, or provision for the abandonment and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitationremediation of, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04Oil and Gas Properties;
(vd) (i) Debt between the Issuer and its Subsidiaries that are Note Parties, (ii) Debt between the Subsidiaries of the Issuer which are Note Parties, and (iii) Debt extended to the Issuer and its Subsidiaries which are Note Parties by any other Note Party; provided that (1) such Debt is not held, assigned, transferred, negotiated or pledged to any Person other than a Note Party, and (2) any such Debt owed by either the Issuer or a Guarantor shall be subordinated to the Obligations on terms set forth in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out AgreementsGuaranty Agreement;
(vie) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viif) recourse secured obligations to royalty, overriding and working interest owners, joint interest obligations, trade payables and other lease operating expenses incurred in the ordinary course of business which are not more than ninety (90) days past due;
(g) Debt associated with appeal bonds and bonds or sureties provided to any Governmental Authority or to any other Person in connection with the operation of the Oil and Gas Properties, including with respect to plugging, facility removal and abandonment of the Oil and Gas Properties;
(h) Debt in respect of Senior Unsecured Notes; provided that (i) after giving effect to the incurrence or issuance thereof, the Issuer shall be in compliance on a pro forma basis with the financial covenant set forth in Section 9.01 and (ii) the Issuer shall only be permitted to incur such Senior Unsecured Notes if the net cash proceeds thereof (other than up to $10,000,000 in excess proceeds incurred as a result of good-faith rounding and estimation in determining the issuance amount of such Senior Unsecured Notes) are used solely to redeem in full the Issuer Series B Preferred Units and substantially contemporaneously therewith an equivalent amount of Series B Redeemable Preferred Stock of RRI in full in accordance with the RRI Certificate of Designations no later than twenty-five (25) days after the date of incurrence of such Senior Unsecured Notes if, and only if, at such time the Series B Redeemable Preferred Stock of RRI is owned in whole or in part by EIG (it being agreed and understood that if EIG does not own the Series B Redeemable Preferred Stock in whole or in part at such time, no Senior Unsecured Notes may be incurred hereunder); provided that until the redemption of the Issuer Series B Preferred Units and the Series B Redeemable Preferred Stock of RRI, such net cash proceeds received from the issuance of the Senior Unsecured Notes shall be held in a deposit account subject to an Account Control Agreement;
(i) to the extent constituting Debt, provided that such Debt obligations in respect of Swap Agreements;
(Aj) is other Debt, not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed $4,500,000 in the aggregate at any one time outstanding 10% outstanding; provided that any secured Debt shall not exceed $2,000,000;
(k) any guarantee of Total Asset Valueany other Debt permitted to be incurred hereunder;
(l) Debt in respect of the First Lien Credit Facility that is subject to the terms of the Intercreditor Agreement; provided that (i) such Debt is a single conforming commercial banking revolving facility for oil and gas secured loan transactions with no differentiation among the First Lien Lenders and all such Debt is pari passu in right of payment, pricing, maturity, security and liquidation thereof, (ii) the Person selected to be the administrative agent thereunder is JPMorgan Chase Bank, N.A. or another administrative agent recognized as being an established administrative agent for commercial banking borrowing base lending facilities for oil and gas secured transactions and (iii) the First Lien Lenders are commercial banking institutions that invest in conforming revolving borrowing base facilities of such type in the ordinary course of business; and
(viiim) unsecured Debt obligations in respect of any Issuer Preferred Units so long as such obligations are not classified as debt under GAAP or no mandatory redemption payment is then due; provided, however, even if such Issuer Preferred Units are classified as debt under GAAP or a mandatory redemption payment is due thereunder (“Reclassified Units”), such Reclassified Units shall still be deemed permitted under this Section 9.02 as long as the incurrence of which would not result Issuer is in a Default under pro forma compliance with the financial covenant set forth in Section 5.049.01 measured upon giving effect to such Reclassified Units.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan PartyParty (other than an Excluded Subsidiary), provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(ivii) in the case of each Loan Party (other than the Parent Guarantor) and its 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 5,000,000 at any time outstanding,
(BC) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 5,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease Leases to which any Subsidiary of a Loan Party is a party, any Contingent Obligation Debt of such Loan Party of the type described in clause (i) of the definition of "Debt" guaranteeing the Obligations of such Subsidiary under such Capitalized LeaseLeases,
(CD) the Surviving Debt described on Schedule 4.01(o) hereto and any Refinancing Debt, extending, refunding or refinancing such Surviving Debt,
(E) Debt in respect of Hedge Agreements entered into by the Borrower and designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practicespractice,
(F) unsecured Debt incurred in the ordinary course of business for borrowed money, maturing within one year from the date created, and aggregating, on a Consolidated basis, not more than $5,000,000 at any one time outstanding, and
(DG) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under Section 5.04 or any other provision of the covenants contained in Section 5.04this Agreement;
(viii) in the case of the Parent Guarantor and the BorrowerGuarantor, Debt consisting of under the Loan Documents and under Customary Carve-Out Agreements;
(viiv) endorsements in the case of Enspire Finance LLC, ARC Dealership, Inc. and the Borrower, Debt under the Consumer Finance Credit Facilities not to exceed $250,000,000 in the aggregate at any time outstanding; and
(v) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 1 contract
Sources: Credit Agreement (Affordable Residential Communities Inc)
Debt. Create, incur, assume or suffer to exist, or permit exist any Debt of its Subsidiaries to create, incur, assume or suffer to exist, any Debtthe Parent’s Subsidiaries, except:
(ia) Debt under the Loan Credit Documents;
(iib) in the case of obligations (contingent or otherwise) existing or arising under any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, Swap Contract entered into by such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred Person in the ordinary course of business for the purpose of hedging currency, commodity or interest rate risk and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share not for purposes of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in speculation or taking a Default under any of the covenants contained in Section 5.04“market view”;
(vc) in the case Debt for standby letters of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit credit issued to secure liabilities under Primary Policies or collection or similar transactions Reinsurance Agreements entered into in the ordinary course of business;
(viid) recourse secured Debt owed by any Subsidiary to the Parent or any of its Subsidiaries; provided that if such Debt is owed by an Affected Party such Affected Party’s Debt, if any, is subordinate to Debt under this Agreement and under the Harbor Point Credit Agreement (including any Guarantees of such Debt) on terms satisfactory to the Administrative Agent;
(e) Debt of any Subsidiary in connection with securities lending arrangements with financial institutions in the ordinary course of business;
(f) Debt in connection with Total Return Equity Swaps provided the total aggregate amount outstanding at any time does not exceed an amount equal to 10% of the Investment Portfolio;
(g) unsecured Debt of Max US Holdings and its Subsidiaries not to exceed $150,000,000;
(h) Debt of Max UK for standby letters of credit which have been, or may from time to time in the future be, issued to provide funds at Lloyd’s to support Lloyd’s syndicate commitments of Max UK and its Subsidiaries;
(i) Debt under the Harbor Point Credit Agreement including Guarantees of such Debt;
(j) Debt not included in clauses (a) through (i), provided that the aggregate amount of all such Debt (A) is not recourse to at any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall one time outstanding does not exceed in the aggregate at any time outstanding 10% of Total Asset Value$150,000,000; and
(viiik) unsecured Debt arising under Guarantees made by any Subsidiary of Debt owed by any of its Subsidiaries of the incurrence type described in clauses (a) through (j) above, provided that if such Guarantee guarantees Debt of which would not result in a Default under Section 5.04Credit Party, such Subsidiary has also guaranteed the obligations of such Credit Party hereunder.
Appears in 1 contract
Debt. Create, incur, assume or suffer to existassume, permit, guarantee, or permit any of its Subsidiaries otherwise become or remain, directly or indirectly, liable with respect to create, incur, assume or suffer to exist, any Debt, except:
(ia) Debt under evidenced by this Agreement and the other Loan Documents;
(iib) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of incurred by any Loan Party, provided that, in each case, that at the time of incurrence of such Debt and after giving pro-forma effect thereto, the Borrower would be in compliance with Section 6.13 and so long as no Unmatured Event of Default or Event of Default has occurred and is continuing at the time of such incurrence, provided further, that the Loan Parties shall cause any Debt incurred pursuant to this clause (yb) shall be on terms acceptable and owed to any Subsidiary or any other Subordinated Creditor (as defined in the Administrative Agent and (zIntercompany Subordination Agreement) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of Loans on substantially the Loan Parties under same terms as set forth in the Loan DocumentsIntercompany Subordination Agreement;
(iiic) Contingent Obligations resulting from the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case endorsement of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viid) recourse secured Debt of (i) any Subsidiary to a Loan Party, (ii) any Loan Party to any other Loan Party, (iii) any Restricted Subsidiary of a Loan Party to any other Restricted Subsidiary of a Loan Party or (iv) any Subsidiary that is not a Restricted Subsidiary of a Loan Party to any other Subsidiary that is not a Loan Party;
(e) Debt which may be deemed to exist pursuant to any performance bonds, surety bonds, statutory bonds, appeal bonds or similar obligations incurred in the ordinary course of business;
(f) Debt in respect of netting services, overdraft protections and otherwise in connection with deposit accounts incurred in the ordinary course of business;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of Loan Parties and their Subsidiaries;
(h) Debt of a Loan Party or any of its Subsidiaries under any Hedging Agreement so long as such Hedging Agreements are used solely as a part of its normal business operations as a risk management strategy or hedge against changes resulting from market operations and not as a means to speculate for investment purposes on trends and shifts in financial or commodities markets;
(i) Debt of any Loan Party or Subsidiary under Back-to-Back Lending Facilities, in an aggregate principal amount not to exceed $200,000,000;
(j) Debt incurred in the ordinary course of business under incentive, non-compete, consulting, deferred compensation, or other similar arrangements incurred by any Loan Party or Subsidiary;
(k) Debt incurred in the ordinary course of business with respect to the financing of insurance premiums;
(l) Debt in respect of Taxes, assessments or governmental charges to the extent that payment thereof shall not at the time be required to be made hereunder;
(m) other Debt of the Subsidiaries (other than any Loan Party) in an aggregate principal amount for all such Subsidiaries not to exceed, at the time of incurrence of such other Debt, the greater of (i) $1,700,000,000 and (ii) Adjusted EBITDA for the most recent four quarter period with respect to which financial statements have been delivered pursuant to Section 5.2(a) or (b), so long as no Unmatured Event of Default or Event of Default has occurred and is continuing at the time of incurrence of any such other Debt;
(n) Debt incurred by any CLO Management Subsidiary in connection with, or otherwise to finance (directly or indirectly) any Investment made to comply with any regulatory requirements (including, without limitation, risk retention requirements), provided that any such Debt (A) is not non-recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset Loan Party or any direct Restricted Subsidiary (provided, that an Unrestricted Subsidiary shall only be liable for such Debt to the extent such Debt is permitted pursuant to clause (p) of this Section 6.1);
(o) guaranties by Loan Parties or indirect Equity Interest therein, other Subsidiaries in respect of real estate lease obligations incurred in the ordinary course of business;
(Bp) is not secured Debt incurred by any Lien on Unrestricted Subsidiary; provided, that any Borrowing Base Asset, and such Debt is non-recourse to any Loan Party or any Restricted Subsidiary;
(Cq) shall not exceed in the aggregate at any time outstanding 10% of Total Asset ValuePurchase Money Debt; and
(viiir) unsecured Debt incurred by the incurrence Borrower and any other entity comprising a “Borrower” or a “Guarantor” party thereto pursuant to Specified Credit Agreement, and any refinancings, refundings, renewals, replacements, exchanges or extensions thereof (which do not shorten the final maturity thereof or increase the principal amount thereof); provided, that for purposes of which would calculating the amount of Debt to determine compliance with Sections 6.1 and 6.2, the Debt of non-wholly owned Subsidiaries included in such calculation shall be equal to (i) if such Debt is (A) not result in a Default guaranteed by any Loan Party and/or any other Subsidiary or (B) guaranteed by any Loan Party and/or any other Subsidiary and each such guaranty is permitted under Section 5.046.1 (and Section 6.2, if applicable) pursuant to a clause that is not subject to a dollar cap, the proportionate amount of such Debt based on the Loan Parties’ and each such other Subsidiary’s aggregate economic ownership interests in such Subsidiary, and (ii) if such Debt is guaranteed by any Loan Party and/or any other Subsidiary and any such guaranty is not permitted under Section 6.1 (and Section 6.2, if applicable) pursuant to a clause that is not subject to a dollar cap, an amount equal to the greater of (x) the proportionate amount of such Debt based on the Loan Parties’ and each such other Subsidiary’s aggregate economic ownership interests in such Subsidiary and (y) without duplication and in no event to exceed the amount of the underlying Debt, the aggregate amount of such Debt guaranteed by the Loan Parties and/or each such other Subsidiary that is not permitted under Section 6.1 (and Section 6.2, if applicable) pursuant to a clause that is not subject to a dollar cap (Debt excluded pursuant to this proviso shall be excluded from the calculation of Debt for purposes of determining compliance with this Section 6.1 (and Section 6.2, if applicable)).
Appears in 1 contract
Debt. CreateIt will not, incur, assume or suffer to exist, or and will not permit any of its Subsidiaries to Subsidiary to, directly or indirectly, create, incur, assume guarantee or suffer permit to exist, exist any Debt, except:
(ia) Debt the Obligations arising under the Loan Documents or any guaranty of or suretyship arrangement for the Obligations arising under the Loan Documents;; (b) accounts payable and all 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 to the extent, in each case, not past due for more than ninety (90) days after the date on which such accounts payable, accrued expenses, liabilities or other obligations were created or incurred unless being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP or such past-due amounts, in the aggregate, are an inconsequential amount; (c) Permitted Purchase Money Debt; (d) Debt arising from bid, performance, stay, custom or appeal bonds or surety obligations arising in the Ordinary Course of Business or required by Applicable Law applicable to an Obligor, in each case in connection with the operation of the Properties of any Obligor or any Subsidiary and in the Ordinary Course of Business; (e)
(1) intercompany Debt owed (i) between and among Obligors, and (ii) between and among Canadian Domiciled Obligors; provided, that all such Debt shall be (A) evidenced by a master intercompany note among Obligors in form and substance reasonably satisfactory to Administrative Agent (the “U.S. Intercompany Note”), which shall be subject to a first priority (or, subject to the Intercreditor Agreement, second priority) perfected Lien in favor of Administrative Agent pursuant to the Loan Documents, and a Canadian Intercompany Note under (and as defined in) the ABL Credit Agreement, and (B) unsecured and, in the case of the U.S. Intercompany Note, subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the Intercompany Note, (2) intercompany Debt owing by any Loan Party Obligor or by any Subsidiary of a Loan Party, Debt owed Canadian Domiciled Obligors to any other Loan Party or any wholly-owned Subsidiary of any Loan Party98 Excluded Subsidiary, provided that, in each casethe case of such intercompany Debt owing by an Obligor, such Debt (y) shall be on terms acceptable is evidenced by the U.S. Intercompany Note to which such Excluded Subsidiary is a party and is unsecured and subordinated in right of payment to the Administrative Agent and (z) shall be evidenced by promissory notes payment in form and substance satisfactory full of the Obligations pursuant to the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extendingU.S. Intercompany Note and, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party such intercompany Debt owing by a Canadian Domiciled Obligor, such Debt is evidenced by the Canadian Intercompany Note, (other than the Parent Guarantor3) intercompany Debt owing by Excluded Subsidiaries to Obligors, in an aggregate principal amount at any one time outstanding, when taken together with Investments made and its Subsidiaries,
(A) Debt secured by Liens permitted by outstanding pursuant to Section 5.02(a)(iv) 10.2.4(d)(iv), not to exceed $30,000,000 and (4) Intercompany Debt between and among Excluded Subsidiaries; (f) Debt owing to insurance companies, or their affiliates, to finance insurance premiums payable to such insurance companies in connection with insurance policies purchased by a Obligor in the aggregate $10,000,000 at any time outstanding,
Ordinary Course of Business; (Bg) Debt (1i) Capitalized Leases not with respect to exceed in the Revolving Loans and letters of credit under the ABL Credit Agreement so long as the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any principal amount of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor outstanding Revolving Loans and the Borrower, Debt consisting amount of Customary Carve-Out Agreements;
(vi) endorsements all such issued and outstanding letters of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall credit does not exceed $225,000,000 in the aggregate at any time outstanding 10% (but, in each case, excluding Revolving Loans and letters of credit denominated in foreign currencies which exceed such dollar limits solely as a result of foreign currency fluctuations after being made or issued, as applicable), (ii) consisting of Debt with respect to Bank Products under (and as defined in) the ABL Credit Agreement and (iii) incurred in connection with any financing from any lender in respect of the Revolving Loans under Section 364 of the Bankruptcy Code to the extent permitted pursuant to the Intercreditor Agreement; (h) Seller Financing in an aggregate principal amount not to exceed $25,000,000 at any time outstanding; (i) Borrowed Money set forth on Schedule 10.2.1(i), but only to the extent outstanding on the Closing Date; (j) Debt with respect to (i) Cash Management Services, (ii) commercial credit card, purchase cards and merchant card services; and (iii) leases and other banking products or services, other than letters of credit, in each case incurred in the Ordinary Course of Business; (k) Debt that is in existence when a Person becomes a Subsidiary or that is secured by an asset when acquired by an Obligor or a Subsidiary, as long as such Debt was not incurred in contemplation of such Person becoming a Subsidiary or such acquisition; provided that, (i) after giving pro forma effect to such incurrence of Debt, acquisition of such Subsidiary or asset pursuant to this clause (k) and Consolidated Secured Debt and Consolidated Total Asset Value; and
Debt, as applicable, on the date such Person becomes a Subsidiary or such acquisition, (viiiA) unsecured if such Debt is secured, the Secured Leverage Ratio for the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b) (or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing Date), is either (x) equal to or less than 3.75 to 1.00 or (y) no greater than such Secured Leverage Ratio for the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Administrative Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b) (or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing Date) immediately before giving effect to the incurrence of such Debt, and (B) if such Debt is unsecured, the Total Leverage Ratio for the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which would 99 Administrative Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b) (or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing Date), is either (x) equal to or less than 4.00 to 1.00 or (y) no greater than such Total Leverage Ratio for the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Administrative Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b) (or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing Date) immediately before giving effect to the incurrence of such Debt, and (ii) Agent receives a certificate of a Senior Officer, in form and substance reasonably satisfactory to Agent, certifying and demonstrating in reasonable detail that all of the applicable requirements set forth in clause (i) of this clause (k) have been satisfied or will be satisfied on or prior to the incurrence of such Debt; (l) Permitted Contingent Obligations; (m) Refinancing Debt as long as each Refinancing Condition is satisfied; (n) Debt of Obligors constituting (A) unsecured senior or senior subordinated debt securities, (B) debt securities that are secured by a Lien (1) on the Term Priority Collateral on a junior basis to both the Liens securing Obligations and the Liens securing ABL Obligations and (2) on the ABL Priority Collateral on a junior lien basis to both the Liens securing ABL Obligations and the Liens securing Obligations or (C) debt securities that are secured by a Lien (1) on the Term Priority Collateral on a pari passu basis with the Liens securing Obligations and (2) on the ABL Priority Collateral on a junior basis to the Liens securing ABL Obligations (but pari passu with the Liens on the ABL Priority Collateral securing Obligations), in an aggregate principal amount, which when all amounts under clauses (A), (B) and (C) above are added to the aggregate principal amount of all the other Incremental Debt outstanding does not result exceed the Incremental Debt Cap (such Debt, the “Incremental Notes”); provided that (1) with respect to Debt of Obligors incurred under clause (n)(C) hereof, (x) the final stated maturity of such Debt shall not be sooner than the maturity date of the Loans, (y) the Weighted Average Life to maturity of such Debt is greater than or equal to the Weighted Average Life to maturity of the Loans and any other Incremental Term Loans and (z) such Debt shall not be subject to any mandatory prepayment, repurchase or redemption provisions, unless the prepayment, repurchase or redemption of such Debt is accompanied by the prepayment of a pro rata portion of the outstanding principal of the Loans pursuant to Section 5.8; (2) with respect to Debt of Obligors incurred under clause (n)(A) hereof, such Debt (x) meets the Permitted Junior Debt Conditions, (y) has no financial maintenance covenants, and (z) does not contain any provisions that cross-default to any Default hereunder; (3) with respect to Debt of Obligors incurred under clause (n)(B) hereof, (x) such Debt meets the Permitted Junior Debt Conditions and (y) such Debt has financial covenants that are, taken as a whole, substantially identical to, or less favorable to the investors of such Debt than, those set forth in this Agreement and the ABL Credit Agreement; (4) upon giving effect to the incurrence of such Debt, no Default exists; (5) to the extent secured, (x) such Debt is secured by the Collateral under security documents substantially similar to either the Security Documents or the ABL Security Documents, (y) such Debt shall not be secured by a Default under Section 5.04.Lien on any asset of any Obligor or its Subsidiaries that does not also secure either Obligations or the ABL Obligations, and (z) the holders of such Debt (or their representative) and Administrative Agent and the ABL Agent shall be party to an intercreditor agreement in form and substance reasonably satisfactory to Administrative Agent; (6) is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Obligors and the terms of such guarantee shall be no more favorable to the holders of such Debt than the terms of the Guaranty; and (7) has covenants, default and remedy provisions and other terms and conditions (other than interest, fees,
Appears in 1 contract
Sources: Amendment No. 4 and Joinder Agreement to Term Loan and Security Agreement (DXP Enterprises Inc)
Debt. CreateThe Parent will not, and will not permit any Subsidiary to, incur, create, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, exist any Debt, except:
(ia) the Loans or other Obligations arising under the Loan Documents or any guaranty of or suretyship arrangement for the Notes or other Obligations arising under the Loan Documents and the other Secured Obligations.
(b) Debt of the Parent and the Subsidiaries existing on the date hereof that is reflected in Schedule 9.02, and any refinancings, refundings, renewals or extensions thereof (without increasing, or shortening the maturity of, the principal amount thereof).
(c) Debt under Capital Leases or incurred in the Loan Documents;ordinary course of business to pay the deferred purchase price of goods or services or progress payments in connection with such goods or services, not to exceed $5,000,000.
(d) Debt associated with bonds or surety obligations required by Governmental Requirements in connection with the operation of its Oil and Gas Properties.
(e) intercompany Debt (i) between Credit Parties (other than any Debt incurred by Taghmen) which is subordinated to the Secured Obligations on terms satisfactory to the Administrative Agent, (ii) between Unrestricted Subsidiaries, (iii) owed by Credit Parties (other than debt owed by Taghmen) to Unrestricted Subsidiaries, provided any such Debt is expressly subordinated to the Secured Obligations on terms acceptable to the Administrative Agent, or (iv) owed by any Unrestricted Subsidiary to any Credit Party or by Taghmen to any Credit Party, to the extent that any such Debt, when aggregated with any other Investments made by any Credit Party in and to Unrestricted Subsidiaries pursuant to Section 9.05(g)(ii) does not exceed $200,000,000 in the aggregate at any time outstanding; provided that, with respect to this clause (iv), (A) both before and immediately after giving effect to any such Debt, no Default shall exist, and (B) after giving effect to any such Debt, the percentage equal to the lesser of (x) the amount of the fraction expressed as a percentage, the numerator of which is the sum of the Revolving Credit Exposures of the Lenders on such day, and the denominator of which is $160,000,000 and (y) the Borrowing Base Utilization Percentage, shall not exceed ninety percent (90%), (C) any such Debt incurred is not held, assigned, transferred, negotiated or pledged to any Person other than the Parent or one of its Wholly- Owned Subsidiaries, and (D) any such Debt owed by a Credit Party shall be subordinated to the Secured Obligations on terms satisfactory to the Administrative Agent.
(f) any Excepted Debt.
(g) Senior Debt of the Parent or any other Credit Party (other than Taghmen), and any guarantees thereof, the principal amount of which does not exceed (i) $500,000,000 minus (ii) the outstanding principal amount of Term Loans in the aggregate at any one time outstanding; provided, that the principal amount of any Convertible Senior Notes shall not exceed $150,000,000 in the aggregate at any one time outstanding; provided further that: (A) the Borrower shall have complied with Section 8.01(t); (B) both before and immediately after giving effect to the incurrence of any such Senior Debt, 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); (C) the Parent is in Pro Forma Compliance after giving effect to the incurrence of any such Debt and the transactions contemplated thereby (and the Parent shall deliver to the Administrative Agent on the date of incurrence thereof a certificate of a Financial Officer setting forth reasonably detailed calculations demonstrating Pro Forma Compliance); (D) such Senior Debt does not have any scheduled principal amortization prior to the date which is one hundred eighty days after the Revolving Credit Maturity Date (as in effect on the date of the incurrence of such Senior Debt); (E) such Senior Debt does not have a scheduled maturity sooner than the date which is one hundred eighty days after the Revolving Credit Maturity Date (as in effect on the date of the incurrence of such Senior Debt); (F) no Subsidiary is required to guarantee such Senior Debt unless such Subsidiary has guaranteed the Secured Obligations pursuant to the Guaranty Agreement (by supplement, joinder or otherwise) and/or one or more other guaranty agreements on terms satisfactory in form and substance to the Administrative Agent; (G) if such Senior Debt is senior subordinated Debt, such Senior Debt is expressly subordinate to the payment in full of all of the Secured Obligations on terms and conditions reasonably satisfactory to the Administrative Agent; (H) (i) in the case of Senior Debt (other than any Convertible Senior Notes issued pursuant to the Initial Convertible Senior Notes Indenture) and any guarantees thereof, such Senior Debt and any guarantees thereof are on terms, taken as a whole, no more restrictive on the Parent or any other Credit Party than the terms and conditions of this Agreement, taken as a whole, as reasonably determined by the Board of Directors of the Parent, acting in good faith and evidenced by a resolutions of such Board of Directors and (ii) in the case of any Loan Party Convertible Senior Notes issued pursuant to the Initial Convertible Senior Notes Indenture and any guarantees thereof, such Convertible Senior Notes and any guarantees thereof are on terms, taken as a whole, no more restrictive on the Parent or any Subsidiary other Credit Party than the terms and conditions of this Agreement, taken as a Loan Partywhole, Debt owed to any other Loan Party or any wholly-owned Subsidiary as reasonably determined by a Responsible Officer of any Loan Partythe Parent, provided thatacting in good faith, in each case, such Debt (y) shall be on terms acceptable to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory certified to the Administrative Agent, which promissory notes shall ; and (unless payable to the BorrowerI) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving such Senior Debt described on Schedule 4.01(n) hereto and does not have any Refinancing Debt extending, refunding mandatory prepayment or refinancing such Surviving Debt;
(iv) in the case of each Loan Party mandatory redemption provisions (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstandingcustomary change of control or asset sale tender offer provisions and, and (2) in the case of any Capitalized Lease Convertible Senior Notes, customary provisions requiring the repurchase of such Convertible Senior Notes upon the occurrence of a Fundamental Change) that would require a mandatory prepayment or redemption in priority to the Secured Obligations.
(h) Debt under a Colombian Peso denominated unsecured credit facility with a commercial bank or a syndicate of commercial banks in an aggregate principal amount not to exceed the US Dollar equivalent of $30,000,000 (determined as of the closing date of such Colombian Peso denominated unsecured credit facility based on a prevailing exchange rate selected by the Administrative Agent in its reasonable discretion); provided that: (i) such Debt is unsecured; (ii) such Debt does not have any restriction on the ability of the Borrower or any Credit Party to amend, supplement or modify this Agreement or the other Loan Documents, (iii) such Debt does not have any restrictions on the ability of the Borrower or any other Credit Party to guarantee the Secured Obligations or pledge assets as collateral security for the Secured Obligations, and (iv) the credit agreement governing such Debt is, taken as a whole, no more restrictive on the Parent and the Subsidiaries than the terms and conditions of this Agreement, taken as a whole, as reasonably determined by the Board of Directors of the Parent, acting in good faith and evidenced by a resolutions of such Board of Directors, and the terms and conditions of such Debt shall not conflict with the terms and conditions of this Agreement or any other Loan Document.
(i) Debt incurred by any Credit Party (other than Taghmen), the principal amount of which does not exceed five percent (5%) of the lesser of (x) $160,000,000 and (y) the then-effective Borrowing Base in the aggregate.
(j) Debt of a Person existing at the time such Person is acquired by the Parent or any Subsidiary of to the extent such acquisition constitutes a Loan Party Permitted Acquisition (and not created in anticipation or contemplation thereof); provided that the Parent is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed Pro Forma Compliance after giving effect to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of such Debt and the covenants contained in Section 5.04;
transactions contemplated thereby (v) in the case of and the Parent Guarantor and shall deliver to the Borrower, Debt consisting Administrative Agent on the date of Customary Carve-Out Agreements;
(vi) endorsements incurrence thereof a certificate of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04Financial Officer setting forth reasonably detailed calculations demonstrating Pro Forma Compliance).
Appears in 1 contract
Debt. Create, incur, assume (a) The Partnership shall not create or incur or suffer to exist, exist any Debt or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, lease obligations except:
(i) Debt contemplated by Section 6.8, Debt under the Loan Partnership Guarantee or Debt arising under the other Project Documents;
(ii) in Subordinated Debt not to exceed an aggregate principal amount of $70,000,000, the case proceeds of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such Debt (y) shall be on terms acceptable which are applied to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory to payment of necessary capital expenditures or which represent unsecured loans from the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan DocumentsPartners;
(iii) purchase money or lease obligations incurred to finance items of equipment not comprising an integral part of the Surviving Debt described on Schedule 4.01(n) hereto Project that extend only to the equipment being financed and any Refinancing Debt extending, refunding that do not in the aggregate have annual debt service or refinancing such Surviving Debtlease obligations exceeding $5,000,000;
(iv) in the case of each Loan Party trade accounts payable (other than the Parent Guarantorfor borrowed money) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstandingarising, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a partyaccrued expenses incurred, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any so long as such trade accounts payable are payable within 90 days of the covenants contained in Section 5.04date the respective goods are delivered or the respective services are rendered;
(v) Debt incurred in connection with amounts owed to the case Fuel Supplier pursuant to Sections 4.4, 4.5, 4.6(a) and 4.7 of the Parent Guarantor Fuel Supply Agreement and Debt incurred in connection with amounts owed to Con Ed pursuant to Article VI(f) of the Borrower, Debt consisting of Customary Carve-Out AgreementsCon Ed Energy Purchase Agreement;
(vi) endorsements Subordinated Debt incurred in connection with the obligation to pay the Fuel Supplier the balance of negotiable instruments for deposit or collection or similar transactions the Tracking Account when due in accordance with Section 4.4 of the ordinary course of businessFuel Supply Agreement;
(vii) recourse secured DebtSubordinated Debt in respect of any tracking account, suspense account or similar feature that relates to any Additional Contract permitted to be entered into by Section 6.21; provided that such Subordinated Debt is subject to the same or a greater level of subordination in relation to the Senior Debt that the Subordinated Debt permitted pursuant to clause (Avi) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; andsubject to;
(viii) unsecured Guarantees permitted in accordance with Section 6.14; or
(ix) obligations in respect of surety bonds or similar instruments in an aggregate amount not exceeding $10,000,000 at any one time outstanding.
(b) The Company shall not create or incur or suffer to exist any Debt or lease obligations except:
(i) the incurrence Bonds; or
(ii) Debt under any additional bonds, notes or debentures issued to provide a source of which would not result funds for Completion of the Project; provided, however, (v) such additional bonds, notes or debentures are issued under this Indenture, (w) the proceeds from the sale of such additional bonds, notes or debentures are loaned to the Partnership to pay Project Costs, (x) such proceeds are pledged to the Collateral Agent, and deposited with the Trustee by the Partnership in a Default under Section 5.04accordance with Sections 3.1 and 4.2, (y) no more than an aggregate of $75,000,000 of such additional bonds, notes or debentures are issued, and (z) after giving effect to the issue of the additional bonds, notes or debentures, the minimum annual Projected Debt Service Coverage Ratio will be equal to or exceed 1.5:1 and the average annual Projected Debt Service Coverage Ratio will be equal to or exceed 1.7:1.
Appears in 1 contract
Sources: Trust Indenture (Dynegy Inc /Il/)
Debt. Create, incur, assume or suffer to exist, or permit in any of its Subsidiaries to create, incur, assume manner become or suffer to existbe liable in respect of, any Debt, except:
(ia) Debt under the Loan Documents;
(iib) in Debt described in, or incurred under commitments described in, Schedule 6.02, and any Debt refinancing, extending, renewing or replacing any such Debt to the case extent the principal amount of such refinancing, extending, renewing or replacing Debt does not exceed the principal amount of such Debt being refinanced, extended, renewed or replaced;
(c) unsecured Debt of the Borrower or any Subsidiary owing to the Borrower or any other Subsidiary; provided that (i) any such Debt of any Loan Party or owing to any Subsidiary of that is not a Loan Party, Debt owed Party is subordinated to any other the obligations of such Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such Debt (y) shall be hereunder on terms acceptable to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory reasonably acceptable to the Administrative Agent, which (ii) any such Debt of any Subsidiary that is not a Loan Party owing to a Loan Party is permitted under Section 6.05 and (iii) if any such Debt of any Subsidiary that is not a Loan Party owing to a Loan Party is evidenced by a promissory notes note, such promissory note shall (unless payable be pledged to the Borrower) by their terms be subordinated to Administrative Agent for the Obligations benefit of the Loan Parties under the Loan DocumentsSecured Parties;
(iiid) Guarantees of the Surviving Borrower or any Subsidiary in respect of Debt described on Schedule 4.01(n) hereto and of the Borrower or any Refinancing Debt extending, refunding or refinancing such Surviving DebtWholly Owned Subsidiary permitted hereunder;
(ive) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,Capital Leases incurred to make Capital Expenditures permitted pursuant to Section 6.14;
(Af) Debt secured by Liens Capital Leases incurred in connection with any Sale and Leaseback Transaction permitted by Section 5.02(a)(iv6.13(a)(ii);
(g) Debt in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that the aggregate principal amount of any such Debt that is secured may not exceed $5,000,000 at any time outstanding;
(h) Debt incurred in connection with the construction or development of any Governmental Fueling Facility; provided the aggregate principal amount of such Debt does not exceed $20,000,000 at any time outstanding for all Governmental Fueling Facilities in the Construction Phase;
(i) Debt consisting of the financing of insurance premiums; provided that the final scheduled maturity of such Debt shall not exceed one (1) year after the date of incurrence thereof;
(j) Debt incurred solely for the purpose of financing the acquisition, construction or improvement of any fixed or capital assets, including Capital Leases and any Debt assumed in connection with the acquisition of any such assets; provided that (i) the principal amount of such Debt does not exceed the cost of acquiring, constructing or improving such fixed or capital assets, (ii) the aggregate principal amount of Debt permitted under this clause (j) shall not exceed $20,000,000 at any time outstanding and (iii) such Debt is incurred pursuant to, or within 180 days after, the acquisition, construction or improvement thereof;
(k) Debt of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the Closing Date, or Debt of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a transaction permitted under Section 6.05; provided that (i) such Debt exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation) or such assets being acquired and (ii) the aggregate principal amount of Debt permitted by this clause (k) shall not exceed $10,000,000 at any time outstanding,;
(Bl) Debt owed in respect of any overdrafts and related liabilities arising from treasury, depository and cash management and other bank product services (1including purchase card services) Capitalized Leases or in connection with any automated clearing-house transfers of funds; provided that such Debt shall be repaid in full within twenty (20) Business Days of the incurrence thereof;
(m) Permitted ABL Debt in an aggregate principal amount not to exceed in the aggregate (i) $10,000,000 150,000,000 at any time outstanding plus (ii) $50,000,000 at any time outstanding, and (2) so long as, in the case of any Capitalized Lease to this clause (ii), on the date on which any Subsidiary credit facility (including any incremental commitments under an existing credit facility) under which Permitted ABL Debt in excess of $150,000,000 would be made available becomes effective, the Total Leverage Ratio, calculated on a Loan Party is a party, any Contingent Obligation pro forma basis after giving effect to such credit facility and assuming the full utilization of such Loan Party guaranteeing the Obligations credit facility as loans, shall be 2.50 to 1.00 or less; provided that at any time no more than $25,000,000 of such Subsidiary under such Capitalized Lease,Debt outstanding may be the primary obligation (as borrower or account party) of Subsidiaries that are not Loan Parties; and
(Cn) Debt reimbursement obligations in respect of Hedge Agreements designed to hedge against fluctuations in interest rates surety, appeal or foreign exchange rates performance bonds or similar obligations incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 1 contract
Debt. Create, incur, assume Create or suffer to exist, or permit any of its Subsidiaries to create, incur, assume create or suffer to exist, any DebtDebt other than the following, exceptprovided that any Debt permitted by any clause below shall be permitted under this Section 5.02(d), notwithstanding that such Debt would not be permitted by any other clause:
(i) Debt owed to the Borrower or to a Consolidated Subsidiary of the Borrower to the extent constituting an Investment permitted under the Loan Documents;
(ii) in the case of any Section 5.02(i), provided that all such Debt owed by a Loan Party or any Subsidiary of to a Person that is not a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such Debt (yx) 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of such Loan Party pursuant to an intercompany subordination agreement or other arrangements reasonably satisfactory to the Agent and (y) shall be evidenced by an intercompany note, and pledged to the Agent (or the DIP Term Loan Parties under Agent in accordance with the Loan Documents;Intercreditor Agreement) as Collateral,
(ii) Debt existing on the Effective Date and described on Schedule 5.02(d), and any Permitted Refinancing thereof,
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens of the type described in and to the extent permitted by Section 5.02(a)(iv5.02(a)(iii) and (vi) in an aggregate amount not to exceed $25,000,000 at any time outstanding,
(iv) Debt of a Person existing at the time such Person is amalgamated, merged into or consolidated with the Borrower or any Subsidiary of the Borrower or becomes a Subsidiary of the Borrower; provided that such Debt was not created in contemplation of such amalgamation, merger, consolidation or acquisition,
(v) Debt arising under the Loan Documents,
(vi) [reserved],
(vii) Debt incurred by Kodak International Finance Limited, a company organized and existing under the laws of England, (x) in connection with short term working capital needs in an aggregate amount not to exceed $25,000,000 at any time outstanding and (y) consisting of Hedge Agreement Obligations entered into in the ordinary course of business to protect the Borrower and its Subsidiaries against fluctuations in commodities, interest or exchanges rates and permitted under Section 5.02(m),
(viii) Debt incurred by Subsidiaries organized under the laws of any jurisdiction outside of the United States in an aggregate amount not to exceed $40,000,000 at any time outstanding,
(ix) Debt of Subsidiaries that are not Loan Parties in respect of (a) treasury management services, clearing, corporate credit card and related services provided to any such Subsidiaries, (b) letters of credit issued for the benefit of any such Subsidiaries, (c) Hedge Agreements entered into by any such Subsidiaries and permitted under Section 5.02(m), and (d) bank guarantees with respect to such Subsidiaries, in an aggregate amount for this clause (ix) not to exceed in the aggregate $10,000,000 at any time outstanding,
(Bx) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;,
(viixi) recourse secured Debt, Debt which exists or may exist under the Secured Agreements in existence from time to time,
(xii) Debt which exists or may exist under the Existing Secured Agreements in existence from time to time; provided that such Debt (A) is shall not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not be secured by any Lien on other than a Lien permitted under Section 5.02(a)(x),
(xiii) unsecured Debt consisting of guarantees of amounts owing by customers of the Borrower under equipment and vendor financing programs in an aggregate amount not to exceed $25,000,000 at any Borrowing Base Assettime outstanding,
(xiv) unsecured Debt in connection with surety bonds, guarantees and (C) shall not exceed letters of credit for customs and excise taxes, value added taxes, insurance and environmental liabilities, rental expenses, tenders and bids and other obligations of the like incurred in the ordinary course of business in an aggregate principal amount not to exceed $10,000,000 at any time outstanding,
(i) Debt arising under the DIP Term Loan Facility Documents in an aggregate principal amount not to exceed $[●]9 at any time outstanding 10% and (ii) any Permitted Refinancing thereof or of Total Asset Valueany previous Permitted Refinancing thereof,
(xvi) the Other Existing Letters of Credit, but, with respect to each Other Existing Letter of Credit, only until such time as such letter of credit expires in accordance with its terms in effect on the Original Effective Date or is otherwise cancelled or terminated,
(xvii) Guarantees (i) of any Loan Party in respect of Debt of either Borrower or any other Loan Party otherwise permitted hereunder and (ii) of any Subsidiary that is not a Loan Party in respect of Debt of any other Subsidiary that is not a Loan Party otherwise permitted hereunder; and
(viiixviii) unsecured additional Debt the incurrence of which would not result in a Default under Section 5.04to exceed $10,000,000 at any time outstanding.
Appears in 1 contract
Debt. CreateThe Borrower will not, nor will it permit any other Credit Party to, incur, create, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, exist any Debt, except:
(ia) Debt the Notes or other Obligations arising under the Loan Documents, or Cash Management Agreements or the Secured Swap Agreements;
(b) Debt under Capital Leases or that constitutes Purchase Money Indebtedness; provided that the aggregate principal amount of all Debt described in this Section 9.02(b) at the time incurred (after giving effect to such incurrence) shall not exceed the greater of (i) $50,000,000 and (ii) in five percent (5%) of the case of Borrowing Base;
(c) intercompany Debt between the Borrower and any Loan other Credit Party or between Credit Parties; provided that such Debt is not held, assigned, transferred, negotiated or pledged to any Subsidiary of Person other than a Loan Credit Party; and, provided further, that any such Debt owed to any other Loan by a Credit Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of on terms set forth in the Loan Parties under the Loan DocumentsGuarantee Agreement;
(iiid) Debt constituting a Guarantee by a Credit Party of the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving DebtObligations;
(ive) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate at the time incurred (after giving effect to such incurrence) the greater of (i) $10,000,000 50,000,000 and (ii) five percent (5%) of the Borrowing Base;
(f) Debt in respect of the 7.50% Senior Notes, the 5.00% Senior Notes and any other additional secured or unsecured Debt; provided that, (i) no Default or Borrowing Base Deficiency exists at the time of the incurrence of such Debt or would result therefrom (including, with respect to the incurrence of any time outstanding,
such Debt after the Effective Date, after giving effect to any automatic reduction of the Borrowing Base and any concurrent repayment required pursuant to Section 2.06(e)), (ii) after giving pro forma effect to the incurrence of such Debt and any concurrent repayments, (A) the Leverage Ratio does not exceed 3.00 to 1.00 and (B) the Current Ratio is not less than 1.00 to 1.00, (1iii) Capitalized Leases the documents governing such Debt do not (x) require any scheduled amortization of principal or have a maturity date prior to one hundred eighty (180) days after the Stated Revolving Credit Maturity Date at the time of the incurrence of such Debt and (y) contain any mandatory prepayment or Redemption provisions (provided that the following exceptions shall be deemed not to exceed violate the requirements of this clause (iii): (A) customary change of control or asset sale tender offer provisions, (B) customary “bridge” facilities which, subject to customary conditions (including no payment or bankruptcy event of default) would either automatically be converted into or required to be exchanged for permanent refinancing and (C) customary special mandatory Redemption provisions in connection with mergers or acquisitions), (iv) the covenants and events of default contained in the aggregate $10,000,000 at any time outstanding, and documentation governing such Debt are (2A) in the case of financial covenants, not more restrictive than the financial covenants of this Agreement and the other Loan Documents and (B) in the case of other covenants and events of default, taken as a whole, not more restrictive than the corresponding terms of this Agreement and the other Loan Documents in each case as reasonably determined in good faith by the Borrower, (v) such Debt does not prohibit prior repayment of the Obligations and (vi) if such Debt is secured, (A) a Junior Lien Intercreditor Agreement shall have been entered into with respect to such Debt and (B) there shall be no Lien on the assets of any Capitalized Lease Credit Party securing any such Debt if the same assets are not subject to a Lien securing the Obligations;
(g) Debt which constitutes a Permitted Refinancing of Debt outstanding or incurred under Section 9.02(f) or Section 9.02(j);
(h) Debt incurred or deposits made by the Credit Parties (i) under worker’s compensation laws, unemployment insurance laws or similar legislation, (ii) in connection with bids, tenders, contracts (other than for the payment of Debt) or leases to which any Subsidiary of a Loan such Credit Party is a party, any Contingent Obligation (iii) to secure public or statutory obligations of such Loan Credit Party, and (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 Credit Party guaranteeing is a party in connection with the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any operation of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions Hydrocarbon Interests in the ordinary course of business;
(viii) recourse secured Debt of any Credit Party assumed in connection with any acquisition permitted by Section 9.05 so long as such Debt is not incurred in contemplation of such acquisition, and any Permitted Refinancing thereof; provided that after giving pro forma effect to such acquisition and the assumption of such Debt, (i) the Leverage Ratio does not exceed 3.00 to 1.00 and (ii) the Current Ratio is not less than 1.0 to 1.0;
(j) Permitted Pari Term Loan Debt incurred on or prior to the date that is one year after the Third Amendment Effective Date, and any guarantees thereof; provided that such the aggregate principal amount of Permitted Pari Term Loan Debt permitted by this clause (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (Cj) shall not exceed, at the time of incurrence thereof, an aggregate principal amount equal to the least of: (i) the Borrowing Base then in effect minus the aggregate Elected Loan Limit then in effect, (ii) an amount equal to the aggregate Elected Loan Limit at such time and (iii) the greater of (x) $1,000,000,000 and (y) 33 1/3% of the sum of the Elected Loan Limit plus the aggregate principal amount of such Permitted Pari Term Loan Debt (after giving effect to the incurrence thereof); and
(k) Debt of the type described in clause (c) of the definition thereof in connection with the Fifth Amendment Acquisition or any other Investment or acquisition permitted hereunder in an amount not to exceed $550,000,000 in the aggregate at any the time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04incurred.
Appears in 1 contract
Debt. CreateNot, incur, assume or suffer to exist, or and not permit any of its Subsidiaries to other Loan Party to, create, incur, assume or suffer to exist, exist any Debt, except:
(ia) Debt Obligations under this Agreement and the other Loan Documents;
(b) Debt secured by Liens permitted by Section 11.2(d); provided that the aggregate amount of all such Debt at any time outstanding shall not exceed $2,000,000;
(i) unsecured Debt owing by any Borrower to any other Loan Party, (ii) in the case of unsecured Debt owing by any Loan Party or any (other than a Borrower) which is a Wholly-Owned Subsidiary of a Loan Party, Debt owed to any other Loan Party (other than a Borrower), (iii) unsecured Debt owing by any Loan Party (other than a Borrower or a Wholly-Owned Subsidiary) to any whollyother Loan Party, in an aggregate amount at any time outstanding not to exceed $3,000,000 among all Loan Parties, and (iv) unsecured Debt owing by any Loan Party to a First-owned Tier Foreign Subsidiary of any Loan Party, in an aggregate amount at any time outstanding not to exceed $3,000,000 among all Loan Parties; provided that, that in each caseof the cases of (i), (ii) and (iii) above, any such Debt (y) shall be on terms acceptable evidenced by a demand note in the form of Exhibit H attached hereto and pledged and delivered to the Administrative Agent pursuant to the Collateral Documents as additional collateral security for the Obligations; provided, further that in each of the cases of clause (i), (ii) and (ziii) any such Debt shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under hereunder in a manner reasonably satisfactory to the Loan DocumentsAdministrative Agent (it being agreed that the subordination provisions set forth in the demand note referred to above shall be deemed to be reasonably satisfactory to the Administrative Agent);
(iiid) unsecured Subordinated Debt (other than Debt described in clause (c) above) in an amount at any time outstanding not to exceed $7,500,000; provided that such Debt remains subject to subordination agreements reasonably acceptable to the Surviving Administrative Agent;
(e) unsecured Hedging Obligations for bona fide hedging purposes and not for speculation and the Hedging Agreement required by Section 10.13 hereof,;
(f) Debt existing on the date hereof described on Schedule 4.01(n) hereto 9.26 and any Refinancing Debt extendingextension, refunding renewal or refinancing such Surviving Debtthereof so long as neither the principal amount thereof is increased, the weighted average life to maturity decreased or, if secured, any additional collateral is granted as security therefor;
(ivg) in the case Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,initial Loans hereunder);
(Ah) Debt secured by Liens unsecured Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers in connection with Permitted Acquisitions and purchasers in connection with dispositions permitted by under Section 5.02(a)(iv11.4;
(i) not up to exceed in the aggregate $10,000,000 2,500,000 at any time outstanding,outstanding of Acquired Debt assumed in Permitted Acquisitions which, if secured, the Liens thereunder would be of a type permitted pursuant to Section 11.2(d);
(Bj) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) unsecured Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates bid, performance or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practicessurety, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection appeal or similar transactions bonds issued for the account of and completion guarantees provided by the Loan Parties in the ordinary course of business;
(viik) recourse secured DebtDebt arising from the honoring by a bank or other financial institution of a check, provided draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business; provided, however, that such Debt is extinguished within five Business Days of incurrence;
(Al) is not recourse unsecured Debt under and in respect of the CoCaLo Note (including the guaranty thereof pursuant to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (Bthe Kids Line/CoCaLo Guaranty) is not secured by any Lien on any Borrowing Base Asset, incurred pursuant to and (C) shall not exceed in accordance with the aggregate at any time outstanding 10% of Total Asset ValueCoCaLo Acquisition Documents; and
(viiim) unsecured Debt arising in connection with endorsement of instruments for deposit in the incurrence ordinary course of which would not result in a Default under Section 5.04business.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries Amazonia, Ylopa and any Intermediate Holding Company to create, incur, assume or suffer to exist, any Debt, except:
, (i) Debt under the Loan Documents;
(iiw) in the case of any Loan Party or any Subsidiary I.I.I. upon the occurrence of a Loan Partythe Zoompart Succession, unsecured Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Partywhich may be payable in Equity Interests in I.I.I., provided that, in each case, such 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 AgentMajority Lenders, which promissory notes shall (unless payable of I.I.I, to Zoompart incurred in connection with the accession by Zoompart to the BorrowerSubordinated Loans described in clause (z)(iv) by their terms be subordinated below, (x) Existing Debt, (y) Debt of any such Person to any Subsidiary of the Borrower for the sole purpose of facilitating the upstreaming of Distributions to the Obligations Borrower in accordance with Section 5.01(q), provided, that (i) the proceeds of any such Debt are immediately upstreamed, (ii) any such Debt shall bear an interest rate no higher than the Loan Parties under the Loan Documents;
market interest rate for comparable Debt, (iii) any such Debt shall be payable exclusively with the Surviving proceeds of dividends received from the relevant lender of such Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) to the extent such Debt is incurred by the Borrower, such Debt shall be in the form of a Subordinated Loan, and (z) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,Borrower:
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(Ci) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign currency exchange rates relevant to the Borrower’s and its Material Subsidiaries’ principal business, in each case incurred in the ordinary course of business for non-speculative purposes and consistent with prudent business practicespractice,
(ii) Debt under this Agreement,
(iii) the assumption of Debt initially incurred for the sole purpose of facilitating the upstreaming of Distributions by Ylopa and Amazonia, provided, that (i) any such Debt shall bear an interest rate no higher than the market interest rate for comparable Debt and (ii) any such Debt shall be payable exclusively with the proceeds of dividends received from the relevant lender of such Debt,
(iv) unsecured Debt in the form of Subordinated Loans constituting all or part of the Capital Contribution, and
(Dv) Non-Recourse Debt (includingextensions, without limitation, the JV Pro Rata Share renewals or replacements of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) foregoing for the same or, except in the case of the Parent Guarantor and the Borrowerclause (ii) above, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04lesser amount.
Appears in 1 contract
Sources: Credit Agreement (Ternium S.A.)
Debt. CreateNo Obligated Party shall, incur, assume or suffer to exist, or nor shall it permit any of its Subsidiaries to createto, directly or indirectly, incur, assume create, assume, or suffer permit to exist, exist any Debt, except:
(ia) Debt under the Loan DocumentsObligations (other than Hedge Obligations);
(iib) existing Debt described on Schedule 8.1;
(c) Subordinated Debt;
(d) Debt in the case form of Capitalized Lease Obligations or purchase money obligations of any Loan Party or any entity that becomes a Subsidiary of pursuant to a Loan PartyPermitted Acquisition; provided, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, that (x) such Debt exists at the time such entity becomes a Subsidiary and is not created in contemplation of such acquisition, (y) shall be on terms acceptable to such Debt is not guaranteed by any Obligated Party or Subsidiary other than by any such acquired entity that guaranteed such Debt at the Administrative Agent time it became a Subsidiary, and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving such Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) does not to exceed $750,000 in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in any renewals, extensions or refinancings thereof so long as the case of any Capitalized Lease to which any Subsidiary of a Loan Party principal amount is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04increased;
(ve) unsecured intercompany Debt (i) owed by any Obligated Party to another Obligated Party, (ii) owed by any Obligated Party to a Subsidiary that is not an Obligated Party; provided that such Debt (A) shall be subordinated to the Obligations in a manner reasonably satisfactory to Lender pursuant to a subordination agreement (which subordination agreement, for the case avoidance of doubt, shall prohibit any payments with respect thereto unless the Parent Guarantor Payment Conditions are then satisfied) and the Borrower(B) shall be evidenced by a demand note in form and substance reasonably satisfactory to Lender and pledged and delivered to Lender, Debt consisting of Customary Carve-Out Agreements;
and (viiii) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, owed by a Subsidiary that is not an Obligated Party to an Obligated Party; provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, permitted under Section 8.5 and (B) is not secured shall be evidenced by any Lien on any Borrowing Base Asseta demand note in form and substance reasonably satisfactory to Lender and, if requested by L▇▇▇▇▇, pledged and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.delivered to Lender;
Appears in 1 contract
Sources: Loan and Security Agreement (Quest Resource Holding Corp)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(ivii) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in under the aggregate $10,000,000 at any time outstandingLoan Documents and the Revolving Loan Documents,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 5,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease Leases to which any Subsidiary of a Loan Party is a party, any Contingent Obligation Debt of such Loan Party of the type described in clause (i) of the definition of “Debt” guaranteeing the Obligations of such Subsidiary under such Capitalized LeaseLeases,
(C) the Surviving Debt described on Schedule 4.01(o) hereto and any Refinancing Debt that extends, refunds or refinances such Surviving Debt,
(D) Debt in respect of Hedge Agreements entered into by the Borrower and designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, andpractice,
(DE) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement, and the obligations under any Customary Carve-Out Agreements related thereto,
(F) Secured Recourse Debt the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement, provided that each individual obligation included within Secured Recourse Debt shall not exceed 80% of the covenants contained value of the collateral securing such Secured Recourse Debt as reasonably determined by Borrower and approved by Administrative Agent,
(G) Unsecured Debt the incurrence of which would not result in a Default under Section 5.045.04 or any other provision of this Agreement, and
(H) Qualifying Trust Preferred Obligations;
(viii) in the case of the Parent Guarantor Guarantor,
(A) Debt under the Loan Documents and the Borrower, Debt consisting of Customary Revolving Loan Documents,
(B) Obligations under any Carve-Out AgreementsAgreements related to any Non-Recourse Debt permitted under Section 5.02(b)(ii)(E), and
(C) Debt in respect of Completion Guaranties;
(viiv) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viiv) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% case of Total Asset ValueAmerican Campus (U of H), Ltd., the Cullen Oaks Phase II Loan; and
(viiivi) unsecured in the case of ACCSI, the Cullen Oaks Phase II Guaranty; provided that, notwithstanding anything herein to the contrary, no Loan Party shall, nor shall it permit any of its Subsidiaries (including without limitation the On-Campus Participating Entities) to, create, incur or assume any Debt relating to the incurrence of which would not result in a Default under Section 5.04On-Campus Participating Entities or the On-Campus Participating Properties after the date hereof other than the Cullen Oaks Phase II Loan and the Cullen Oaks Phase II Guaranty.
Appears in 1 contract
Sources: Senior Secured Term Loan Agreement (American Campus Communities Inc)
Debt. CreateNot, incur, assume or suffer to exist, or and not permit any of its Subsidiaries to Loan Party or Subsidiary thereof to, create, incur, assume or suffer to exist, exist any Debt, except:
(ia) Debt Obligations under this Agreement and the other Loan Documents;
(b) the Senior Credit Facility;
(c) [Intentionally Omitted];
(i) Purchase Money Debt incurred (for avoidance of doubt, other than pursuant to an Acquisition) by a Loan Party or Subsidiary thereof with respect to Equipment that is being acquired (by, and will be used in the ordinary course of business of, such Loan Party or Subsidiary (and any extension, renewal, or refinancing thereof), and (ii) Capitalized Lease Obligations incurred (for avoidance of doubt, other than pursuant to an Acquisition) by a Loan Party or Subsidiary thereof with respect to Equipment that is being acquired by, and will be used in the ordinary course of business of, such Loan Party or Subsidiary (and any extension, renewal, or refinancing thereof), in the cases of clauses (i) and (ii), in an aggregate principal outstanding amount for all Loan Parties and their Subsidiaries under this Section 11.1(d) not to exceed the product of (x) U.S.$1,500 multiplied by (y) the number of people (x) employed on a full-time basis by members of the Consolidated Group, and (y) employed by others, but who are working on a full-time equivalent basis on projects for the Consolidated Group, in each case as of the last day of the most recently ended Computation Period for which financial statements have been delivered (or were required to be delivered) to Administrative Agent under and in accordance with Section 10.1.2;
(e) (i) Permitted Earn-out Obligations, and (ii) Subordinated Debt (other than, for avoidance of doubt, any Earn-out Obligations) incurred after the Closing Date in an aggregate outstanding amount for all Loan Parties and their Subsidiaries not to exceed U.S.$2,000,000 at any time, so long as such Subordinated Debt is subject to a Subordination Agreement;
(f) unsecured Debt of any Loan Party (other than Intermediate Holdings) to any other Loan Party (other than Intermediate Holdings), as long as (i) such Debt is evidenced by the Master Intercompany Note and pledged and delivered to Administrative Agent pursuant to the Loan Documents as additional collateral security for the Obligations and (ii) the obligations under the Master Intercompany Note are subordinated to the Obligations of Borrowers hereunder on terms and in a manner satisfactory to the Required Lenders, in their discretion (but which terms shall in any event permit payments to be made to any Loan Party so long as no Event of Default of the type described in Sections 13.1.1 or 13.1.4 shall be continuing);
(g) unsecured Debt in respect of netting services and overdraft protections in connection with Deposit Accounts, in an aggregate outstanding amount for all Loan Parties and their Subsidiaries under this Section 11.1(g) not to exceed U.S.$100,000 at any time;
(h) loans or advances to employees, officers or directors of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided thatits Subsidiaries, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the an aggregate outstanding amount for all Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) their Subsidiaries not to exceed U.S.$250,000 in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstandingFiscal Year, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred made in the ordinary course of business for travel and consistent with prudent business practices, andrelated expenses;
(Di) Non-Recourse Contingent Liabilities of a Loan Party consisting of guarantees of trade accounts payable of another Loan Party;
(j) unsecured Debt owed to any Person providing worker’s compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Loan Parties and their Subsidiaries incurred in connection with such Person providing such benefits or insurance pursuant to customary reimbursement obligations to such Person;
(includingk) unsecured Hedging Obligations incurred for bona fide hedging purposes and not for speculation with respect to risks arising in the ordinary course of Borrowers’ business, without limitation, the JV Pro Rata Share of Non-Recourse in an aggregate outstanding amount for all Loan Parties and their Subsidiaries under this Section 11.1(k) not to exceed U.S.$1,000,000 at any time;
(l) unsecured Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assetsperformance, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit surety or collection or similar transactions appeal bonds provided in the ordinary course of business, but excluding (in each case) Debt incurred through the borrowing of money or Contingent Liabilities in respect thereof;
(viim) unsecured, non-recourse secured DebtDebt incurred by any Loan Party or Subsidiary thereof to finance the payment of insurance premiums of such Person, provided that such in an aggregate outstanding amount for all Loan Parties and their Subsidiaries under this Section 11.1(m) not to exceed U.S.$250,000 at any time;
(n) Debt (A) described on Schedule 11.1, and any extension, renewal or refinancing thereof so long as the principal amount thereof is not recourse increased; and
(o) Debt of any Excluded Foreign Subsidiary to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is Loan Party in an aggregate amount not secured by any Lien on any Borrowing Base Asset, and (C) shall not to exceed U.S.$1,000,000 in the aggregate at any time outstanding 10% as long as (i) such Debt is evidenced by the Master Intercompany Note and pledged and delivered to Collateral Agent pursuant to the Loan Documents as additional collateral security for the Obligations and (ii) the obligations under the Master Intercompany Note are subordinated to the Obligations of Total Asset Value; andBorrowers hereunder on terms and in a manner satisfactory to the Required Lenders, in their discretion (but which terms shall in any event permit payments to be made to any Loan Party so long as no Event of Default of the type described in Sections 13.1.1 or 13.1.4 shall be continuing);
(viiip) other unsecured Debt the incurrence owed to any Person that is not an Affiliate of which would any Loan Party or Subsidiary thereof, in an aggregate outstanding amount for all Loan Parties and their Subsidiaries not result in a Default under Section 5.04to exceed U.S.$250,000 at any time.
Appears in 1 contract
Debt. Create, 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 Borrower,
(A) Debt owed to a Wholly Owned Subsidiary of the Borrower; provided that, any such Debt owed by the Borrower to any Wholly Owned Subsidiary of the Borrower that is not a Loan Party, shall be subordinated in right of payment to the Obligations of the Borrower 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,
(B) other unsecured Debt incurred in the ordinary course of business aggregating not more than $50,000,000 at any time outstanding other than Alliance Resource Fourth Amended and Restated Credit Agreement 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 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 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 (II) such unsecured Debt ranks junior to or pari passu with the Facilities,
(C) other unsecured Debt incurred in the ordinary course of business (including, for the avoidance of doubt, any long-term Debt incurred in connection with 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 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 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, (II) such unsecured Debt matures, and does not begin to amortize until, more than six months after the latest Termination Date for all Facilities and (III) the covenants and other material terms of such unsecured Debt are no more restrictive than those set forth in the Loan Documents, and
(i) the Senior Notes and Permitted Junior Refinancing Debt in respect thereof in an aggregate principal amount not to exceed $145,000,000 and (ii) junior secured Debt that 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 (i); provided that, in the case of this clause (ii), (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 Alliance Resource Fourth Amended and Restated Credit Agreement 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;
(ii) 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 or 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 any other the Borrower or to a Wholly Owned Subsidiary of the Borrower that is a Loan Party or in excess of $250,000 by any wholly-owned Subsidiary of any that is not a Loan Party, provided that, in each case, such Debt (y) shall be on terms acceptable to the Administrative Agent and (z) Party shall be evidenced by a promissory notes in form and substance satisfactory note that shall be pledged to the Administrative Agent, which promissory notes shall (unless payable to Collateral Agent in accordance with the Borrower) by their terms be subordinated to the Obligations of the Loan Parties Security Agreement, and (B) Debt in the form of a Guaranty of Debt otherwise permitted under the Loan Documents;this Section 5.02(b); and
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) 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) not to exceed in the aggregate $10,000,000 at any time outstanding),
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(CE) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates (i) Swaps incurred in the ordinary course of business and consistent with prudent business practicespractice 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, andAlliance Resource Fourth Amended and Restated Credit Agreement
(DF) Non-Recourse 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) (includingother 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, without limitationrefunding or refinancing, and the JV Pro Rata Share direct and contingent obligors therefor shall not be changed, as a result of Non-Recourse Debt 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 Joint Venturesuch extending, 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; 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 respect the ordinary course of Assets other than Borrowing Base Assetsbusiness; provided, in each case, that the incurrence of which would not result Borrower shall be in a Default under any of 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 or 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
(vH) in the case Debt of the Parent Guarantor Borrower and the Borrowerits Subsidiaries, Debt consisting if any, arising in connection with receivables securitization programs on terms and conditions customary for transactions of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions that type in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is an aggregate principal amount not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate $100,000,000 at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04outstanding.
Appears in 1 contract
Sources: Credit Agreement
Debt. Create, 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 Borrower,
(A) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or currency rates incurred in the ordinary course of business and consistent with prudent business practice, and
(B) Debt owed to, or guarantees in favor of, a wholly owned Subsidiary of the Borrower, which Debt, if such Subsidiary is a Loan Party, (x) shall be subordinated to the Obligations and (y) shall, in the case of intercompany advances, be evidenced by promissory notes pledged as security for the Obligations of the holder thereof under the Loan DocumentsDocuments to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement;
(ii) in the case of any Loan Party or any Subsidiary of the Borrower
(A) which is a Loan Party, Debt owed to, or guarantees in favor of, the Borrower or to any other Loan Party or any wholly-a wholly owned Subsidiary of any the Borrower which is a Loan Party, provided that, in each case, such Debt (y) shall be on terms acceptable to shall, in the Administrative Agent and (z) shall case of intercompany advances, be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to pledged as security for the Obligations of the Loan Parties holder thereof under the Loan Documents;Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement, and
(B) which is not a Loan Party, (1) Debt owed to any Loan Party which is permitted by Section 5.02(f)(x) and (2) Debt used to finance working capital needs of such Subsidiary, provided that such Debt is not supported by a guarantee or collateral provided by a Loan Party and the aggregate amount of Debt permitted under this clause (B)(2) does not exceed $10,000,000; and
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extendingGuaranties and, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) Borrower and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) so long as no Default has occurred and is continuing, Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1C) Capitalized Leases not to exceed in the aggregate $10,000,000 20,000,000 at any time outstanding,
(D) Debt of any Person that becomes a Subsidiary of the Borrower after the date hereof in accordance with the terms of Section 5.02(f) which Debt does not exceed $10,000,000 in the aggregate, is existing at the time such Person becomes a Subsidiary of the Borrower and is not created in contemplation of or in connection with such Person becoming a Subsidiary of the Borrower,
(E) Debt under or in respect of the First Lien Senior Credit Facilities,
(F) Surviving Debt existing on the date hereof and set forth in Schedule 4.01(t) hereto and extensions, renewals and replacements of any such Debt, provided that such extending, renewal or replacement Debt (1) shall not add guarantors, obligors or security from that which applied to the Debt being extended, renewed or replaced, (2) shall not be in principal amount that exceeds the principal amount of the Debt being extended, renewed or replaced (plus accrued interest and premium thereon), (3) shall not have an earlier maturity date or a decreased Weighted Average Life to Maturity than the Debt being extended, renewed or replaced, (4) shall be subordinated to the Obligations on the same terms (or, from the perspective of the Lenders, better terms), if any, as the Debt being extended, renewed or replaced and (5) shall not have terms relating to collateral (if any) or other material terms (taken as a whole) that are materially less favorable to the Loan Parties than the terms of the Debt being extended, renewed or replaced,
(G) Debt owed to any Person providing workers' compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the case ordinary course of any Capitalized Lease to which business,
(1) Debt of the Borrower or any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt Borrower in respect of Hedge Agreements designed to hedge against fluctuations performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees and similar obligations, in interest rates or foreign exchange rates incurred each case provided in the ordinary course of business and consistent with prudent business practices(2) any refinancings, andrenewals and replacements of any such Debt pursuant to the preceding clause (1) that do not increase the outstanding principal amount thereof (plus accrued interest and premium in respect thereof),
(DI) Non-Recourse Debt (includingarising from the honoring by a bank or other financial institution of a check, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection draft or similar transactions instrument drawn against insufficient funds in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt is extinguished within two Business Days of its incurrence,
(AJ) is not recourse to Debt arising from agreements of the Borrower or a Subsidiary of the Borrower providing for indemnification in connection with the disposition of any business, any assets or any Subsidiary Guarantor that owns of the Borrower, other than Guarantees of Debt incurred by any Borrowing Base Asset Person acquiring all or any direct portion of such business, assets or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in Subsidiary for the aggregate at any time outstanding 10% purpose of Total Asset Valuefinancing such acquisition; and
(viiiK) unsecured So long as no Default has occurred and is continuing, other Debt of the incurrence of which would Borrower in an aggregate principal amount not result in a Default under Section 5.04to exceed $7,500,000 at any one time outstanding.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, exceptDebt other than:
(i) Debt under in the Loan Documentscase of the Borrower, the Subordinated Debentures and the Convertible Preferred Stock;
(ii) in the case of any Loan Party or any of the Subsidiary of a Loan PartyGuarantors, Debt owed to any other Loan Party the Borrower or any wholly-owned to another Subsidiary of any Loan PartyGuarantor, provided that, in each case, that (x) such Debt is subordinated to any Debt of such Subsidiary Guarantor under the Loan Documents on terms and conditions acceptable to the Required Lenders and (y) shall be on terms acceptable such Debt is evidenced by a promissory note and such promissory note is pledged in favor of the Secured Parties pursuant to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;Security Agreement; and
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) Borrower and any of its Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt of the Borrower and its Subsidiaries (other than D.C. Chartered Health Plan, Inc.) secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 1,000,000 at any time outstanding,
(B) (1i) Capitalized Leases (other than any Capitalized Leases included in Surviving Debt) entered into by the Borrower and its Subsidiaries (other than D.C. Chartered Health Plan, Inc.) not to exceed in the aggregate $10,000,000 5,000,000 at any time outstanding, and (2ii) in the case of any Capitalized Lease Leases to which any such Subsidiary of a Loan Party the Borrower is a party, any Contingent Obligation Debt of such Loan Party the Borrower of the type described in clause (j) of the definition of "Debt" guaranteeing the Obligations of such Subsidiary under such Capitalized LeaseLeases,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 1 contract
Debt. Create, 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 Borrower,
(A) Debt in respect of Hedge Agreements required pursuant to Section 5.01(p) or other Hedge Agreements designed to hedge against fluctuations in interest rates or currency rates incurred in the ordinary course of business and consistent with prudent business practice, and
(B) Debt owed to, or guarantees in favor of, a wholly owned Subsidiary of the Borrower, which Debt, if such Subsidiary is a Loan Party, (x) shall be subordinated to the Obligations and (y) shall, in the case of intercompany advances, be evidenced by promissory notes pledged as security for the Obligations of the holder thereof under the Loan DocumentsDocuments to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement;
(ii) in the case of any Loan Party or any Subsidiary of the Borrower
(A) which is a Loan Party, Debt owed to, or guarantees in favor of, the Borrower or to any other Loan Party or any wholly-a wholly owned Subsidiary of any the Borrower which is a Loan Party, provided that, in each case, such Debt (y) shall be on terms acceptable to shall, in the Administrative Agent and (z) shall case of intercompany advances, be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to pledged as security for the Obligations of the Loan Parties holder thereof under the Loan Documents;Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement, and
(B) which is not a Loan Party, (1) Debt owed to any Loan Party which is permitted by Section 5.02(f)(x) and (2) Debt used to finance working capital needs of such Subsidiary, provided that such Debt is not supported by a guarantee or collateral provided by a Loan Party and the aggregate amount of Debt permitted under this clause (B)(2) does not exceed $10,000,000; and
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extendingGuaranties and, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) Borrower and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) so long as no Default has occurred and is continuing, Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1C) Capitalized Leases not to exceed in the aggregate $10,000,000 20,000,000 at any time outstanding,
(D) Debt of any Person that becomes a Subsidiary of the Borrower after the date hereof in accordance with the terms of Section 5.02(f) which Debt does not exceed $10,000,000 in the aggregate, is existing at the time such Person becomes a Subsidiary of the Borrower and is not created in contemplation of or in connection with such Person becoming a Subsidiary of the Borrower,
(E) Debt under or in respect of the Second Lien Term Loan Facility,
(F) Surviving Debt existing on the date hereof and set forth in Schedule 4.01(t) hereto and extensions, renewals and replacements of any such Debt, provided that such extending, renewal or replacement Debt (1) shall not add guarantors, obligors or security from that which applied to the Debt being extended, renewed or replaced, (2) shall not be in principal amount that exceeds the principal amount of the Debt being extended, renewed or replaced (plus accrued interest and premium thereon), (3) shall not have an earlier maturity date or a decreased Weighted Average Life to Maturity than the Debt being extended, renewed or replaced, (4) shall be subordinated to the Obligations on the same terms (or, from the perspective of the Lenders, better terms), if any, as the Debt being extended, renewed or replaced and (5) shall not have terms relating to collateral (if any) or other material terms (taken as a whole) that are materially less favorable to the Loan Parties than the terms of the Debt being extended, renewed or replaced,
(G) Debt owed to any Person providing workers' compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the case ordinary course of any Capitalized Lease to which business,
(1) Debt of the Borrower or any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt Borrower in respect of Hedge Agreements designed to hedge against fluctuations performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees and similar obligations, in interest rates or foreign exchange rates incurred each case provided in the ordinary course of business and consistent with prudent business practices(2) any refinancings, andrenewals and replacements of any such Debt pursuant to the preceding clause (1) that do not increase the outstanding principal amount thereof (plus accrued interest and premium in respect thereof),
(DI) Non-Recourse Debt (includingarising from the honoring by a bank or other financial institution of a check, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection draft or similar transactions instrument drawn against insufficient funds in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt is extinguished within two Business Days of its incurrence,
(AJ) is not recourse to Debt arising from agreements of the Borrower or a Subsidiary of the Borrower providing for indemnification in connection with the disposition of any business, any assets or any Subsidiary Guarantor that owns of the Borrower, other than Guarantees of Debt incurred by any Borrowing Base Asset Person acquiring all or any direct portion of such business, assets or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in Subsidiary for the aggregate at any time outstanding 10% purpose of Total Asset Valuefinancing such acquisition; and
(viiiK) unsecured So long as no Default has occurred and is continuing, other Debt of the incurrence of which would Borrower in an aggregate principal amount not result in a Default under Section 5.04to exceed $5,000,000 at any one time outstanding.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any Subsidiary of its Subsidiaries Parent to create, incur, assume or suffer to exist, any Debt, except prior to the initial Borrowings on the Closing Date (x) to the extent permitted under Section 7.02 of the Existing Parent Credit Agreement (as in effect on the date hereof) or (y) any other transaction to the extent the restriction of such transaction by this Agreement is prohibited by Section 7.17 of the Existing Parent Credit Agreement (as in effect on the date hereof), and from and after the Closing Date except:
(a) 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 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 Party’s reimbursement obligation in respect of such Existing Letter of Credit or Bank Guarantee;
(b) Debt constituting Intercompany Loans to the extent permitted by Section 7.06(f) or other Intercompany Debt otherwise permitted by Section 7.06;
(c) in the case of Parent and its Subsidiaries,
(i) Debt under the Loan Documents;,
(ii) Debt secured by Liens permitted by Section 7.01(d) not to exceed in the case aggregate $100,000,000 at any time outstanding,
(iii) unsecured trade payables not overdue by more than 60 days incurred in the ordinary course of business,
(iv) Debt under Capitalized Leases, as determined in accordance with GAAP, in an aggregate amount not to exceed $50,000,000 at any time outstanding; and
(v) Debt in respect of letters of credit or Bank Guarantees (other than those issued pursuant to this Agreement) in an aggregate amount not to exceed $200,000,000 outstanding at any time;
(d) Surviving Debt outstanding on the Closing Date without any extension, renewal or refinancing thereof, other than Permitted Refinancing Debt incurred in respect of any Loan Party or any Subsidiary of a Loan Party, such Surviving Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided thatthat the aggregate principal amount of Debt under this clause (d) shall not exceed the $370,000,000;
(e) unsecured Debt of Parent, in each case, so long as (A) such Debt does not mature until at least six months after the Maturity Date in respect of the Term B Facility and has no scheduled amortization prior to that date, (yB) after giving effect to the incurrence of such Debt, Parent shall be on terms acceptable to in pro forma compliance with the Administrative Agent financial covenants set forth in Section 6.18, (C) at the time of incurrence of such Debt and after giving effect thereto, no Default or Event of Default shall have occurred or be continuing and (zD) shall be evidenced by promissory notes in form and substance the documentation governing such Debt contains customary market terms reasonably satisfactory to the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be including, without limitation, if such Debt is subordinated Debt, provisions subordinating such Debt to the Obligations of the Loan Parties under the Loan Documents;
(iiif) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving DebtClosing Date Preferred Equity issued by Parent in an aggregate principal amount outstanding not to exceed $450,000,000;
(ivg) Debt of Foreign Subsidiaries under lines of credit to any such Foreign Subsidiary from Persons other than Parent or any of its Subsidiaries, the proceeds of which Debt are used for such Foreign Subsidiary’s working capital and other general corporate purposes, provided that the aggregate principal amount of all such Debt outstanding at any time for all such Foreign Subsidiaries shall not exceed $200,000,000;
(h) unsecured Debt of Parent consisting of unsecured guarantees by Parent of obligations (which guaranteed obligations do not themselves constitute Debt) of one or more Wholly-Owned Subsidiaries of Parent;
(i) unsecured Debt of Parent evidenced by a guaranty of the Debt or other obligations of any other Person (including Debt of Foreign Subsidiaries permitted pursuant to clause (g) above), so long as at the time of such incurrence of Debt, after giving pro forma effect to such incurrence, Parent shall be in pro forma compliance with all financial covenants set forth in Section 6.18;
(j) Debt of Parent under the Shareholder Subordinated Notes issued after the Effective Date in connection with a redemption or repurchase of common stock of Parent pursuant to Section 7.07(a);
(k) unsecured Debt of the Purchaser consisting of Loan Notes (as defined in the case of each Loan Party (other than Press Release on the Parent Guarantordate hereof) and its Subsidiaries,any unsecured guaranty of such Debt by Parent; and
(Al) Debt secured by Liens permitted by Section 5.02(a)(iv) of Parent and its Subsidiaries in an aggregate amount not to exceed in the aggregate $10,000,000 100,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 1 contract
Sources: Credit Agreement (Colfax CORP)
Debt. CreateNo Loan Party shall, incur, assume or suffer to exist, or nor shall it permit any of its Restricted Subsidiaries to createto, directly or indirectly, incur, assume create, assume, or suffer permit to exist, exist any Debt, except:
(ia) Debt under the Loan DocumentsObligations;
(iib) existing Debt described on Schedule 8.1;
(c) Purchase Money Debt and Capitalized Lease Obligations in an aggregate principal amount at the case time incurred, together with the principal amount outstanding of all other Debt incurred pursuant to this clause (c), not to exceed the Threshold Amount;
(d) Debt associated with worker’s compensation claims;
(e) unsecured intercompany Debt owed by any Loan Party or to another Loan Party, (ii) owed by any Loan Party to a Restricted Subsidiary of that is not a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, ; provided that, in each case, that such Debt (yA) shall be on terms acceptable subordinated to the Obligations in a manner reasonably satisfactory to Administrative Agent and (zB) does not require the payment of cash interest by any Loan Party to a non-Loan Party, and (iii) owed by a Restricted Subsidiary that is not a Loan Party to a Loan Party; provided that such Debt (A) is permitted under Section 8.5 and (B) shall be evidenced by a promissory notes in form note pledged and substance satisfactory delivered to Administrative Agent pursuant to the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Security Documents;
(iiif) the Surviving Guarantees by any Loan Party of Debt described on Schedule 4.01(n) hereto and of any Refinancing Debt extending, refunding or refinancing such Surviving Debtother Loan Party not otherwise prohibited pursuant to this Section 8.1;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(Ag) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case associated with financing of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions insurance premiums in the ordinary course of business;
(viih) recourse secured Debt arising from the honoring by a bank or other financial institution of a check, draft, payment order or other debit drawn, presented or issued against insufficient funds in the ordinary course of business so long as such Debt is extinguished within three (3) Business Days of its incurrence;
(i) any unsecured senior or unsecured senior subordinated Debt of Borrower or any Restricted Subsidiary and guarantees thereof by Borrower or any Restricted Subsidiary; provided that, in each case: (i) such Debt shall solely be comprised of unsecured senior or unsecured senior subordinated Debt, provided (ii) such Debt shall not provide for any amortization of principal or any scheduled prepayments of principal on any date prior to 180 days after the Maturity Date in effect at the time of incurrence or issuance, (iii) such Debt shall not contain a scheduled maturity date that is earlier than 180 days after the Maturity Date in effect at the time of incurrence or issuance, (iv) such Debt (or the documents governing such Debt) shall not contain (A) is not recourse financial maintenance covenants that are more restrictive or onerous with respect to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest thereinBorrower and its Restricted Subsidiaries than the financial maintenance covenants in this Agreement (as determined in good faith by senior management of Borrower), (B) is not secured covenants (other than financial maintenance covenants) or events of default, taken as a whole, that are more restrictive or onerous with respect to Borrower and the Restricted Subsidiaries than the covenants (other than financial maintenance covenants) and events of default in this Agreement (as determined in good faith by any Lien on any Borrowing Base Assetsenior management of Borrower), and (C) restrictions on the ability of Borrower or any of its Subsidiaries to guarantee the Obligation or to pledge assets as collateral security for the Obligations, (D) any mandatory prepayment or Redemption provisions which would require a mandatory prepayment or Redemption of such Debt (other than provisions requiring Redemption or offers to Redeem in connection with asset sales or a “change in control”) or (E) any prohibition on the prior repayment of any Obligations, (v) immediately after giving effect to the incurrence or issuance of such other Debt, the application of the proceeds thereof, and any automatic reduction of the Borrowing Base pursuant to Section 2.8(f) on account thereof and on the date of such incurrence or issuance of such Debt: (A) Borrower shall not exceed be in pro forma compliance with each of the aggregate at any time outstanding 10% Financial Covenants, in each case, for the Rolling Period most recently ended for which financial statements are available and (B) no Event of Total Asset ValueDefault or Borrowing Base Deficiency shall exist and (vi) the Borrowing Base shall automatically be reduced on the date of the incurrence or issuance of such Debt to the extent (if any) required by Section 2.8(f); and
(viiij) unsecured other Debt in an aggregate principal amount at the incurrence time incurred, together with the principal amount outstanding of which would all other Debt incurred pursuant to this clause (j), not result in a Default under Section 5.04.to exceed the Threshold Amount. CREDIT AGREEMENT – Page 120
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(iiy) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan PartyParty (other than an Excluded Subsidiary), provided that, in each case, such Debt (y1) shall be on terms acceptable to the Administrative Agent and (z2) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (unless payable to the a Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents, and (z) in the case of any Excluded Subsidiary, Debt owed to any other Excluded Subsidiary;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(ivii) in the case of each Loan Party (other than the Parent GuarantorREIT) and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section 5.02(a)(iv5.02(a)(iii) not to exceed in the aggregate $10,000,000 U.S.$7,500,000 at any time outstanding,
(BC) (1) Capitalized Leases (other than with respect to Real Property) not to exceed in the aggregate $10,000,000 U.S.$25,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease Leases (other than with respect to Real Property) to which any Subsidiary of a Loan Party is a party, any Contingent Obligation Debt of such Loan Party of the type described in clause (i) of the definition of “Debt” guaranteeing the Obligations of such Subsidiary under such Capitalized LeaseLeases,
(CD) [intentionally omitted],
(E) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practicespractice,
(F) Unsecured Debt of the REIT and its Subsidiaries incurred in the ordinary course of business for borrowed money, maturing within one year from the date created, and aggregating, on a Consolidated basis, not more than U.S.$25,000,000 at any one time outstanding, and
(DG) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Unencumbered Assets, the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement;
(iii) In the case of the REIT or any of its Subsidiaries:
(A) Debt under Customary Carve-Out Agreements,
(B) the Surviving Debt described on Schedule 4.01(o) hereto and any Refinancing Debt, extending, refunding, or refinancing such Surviving Debt, and
(C) Recourse Debt (whether secured or unsecured) in an amount not to exceed in the aggregate (1) 20% of Total Asset Value plus (2) the total commitment amount under the Corporate Loan Documents; provided, however, that any recourse guaranties of Non-Recourse Debt (exclusive of Customary Carve-Out Agreements) otherwise permitted under this clause (C) shall not exceed in the aggregate 5% of Total Asset Value; provided further that during any period in which the Parent Guarantor shall maintain a Debt Rating of BBB /Baa3 or better, then the Parent Guarantor and its Subsidiaries shall be permitted to incur Recourse Debt in any amount that would not result in a failure by any Borrower or the Parent Guarantor to comply with any of the financial covenants applicable to it contained in Section 5.04;
(iv) In the case of the REIT or any of its Subsidiaries (other than the Borrowers and their Subsidiaries), Debt under the Corporate Credit Agreement, the other Corporate Loan Documents and the Note Documents;
(v) in the case of the Parent Guarantor and the Borrowereach Loan Party, Debt consisting of Customary Carve-Out Agreements;under the Loan Documents; and
(vi) endorsements endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 1 contract
Sources: Revolving Credit Agreement (Digital Realty Trust, L.P.)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries (other than the Regulated Subsidiaries and the AESC Companies) to create, incur, assume or suffer to exist, any DebtDebt other than pursuant to the Loan Documents, except:
(i) Debt under the Loan Documents;
(ii) in until the case of any Loan Party or any Subsidiary of a Loan PartyClosing Date, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations respect of the Loan Parties under the Loan DocumentsExisting Credit Agreement;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in unsecured intercompany Debt owed to AYE or any Subsidiary to the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,extent permitted under Section 5.02(f);
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(Cv) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred (including Commodity Hedge Agreements) entered into in the ordinary course of business and consistent with prudent business practicespractice to hedge or mitigate (A) risks to which AYE or any Subsidiary of AYE is exposed in the conduct of its business or the management of its liabilities as a result of fluctuations in the prices of transmission, and
capacity or energy (D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt or of any Joint Venturefuel required for the generation thereof), Emissions Credits or energy attributes or (B) risks in respect of Assets other than Borrowing Base Assets, the incurrence of which would interest rate fluctuations; provided that in each case such Hedge Agreement shall not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreementshave been entered into for speculative purposes;
(vi) endorsements Debt incurred to finance all or any part of negotiable instruments for deposit the acquisition, construction or collection improvement of any real property, physical assets or equipment (including any Capital Expenditures) of AYE or any Subsidiary of AYE (other than the Regulated Subsidiaries and the AESC Companies); provided that (A) such Debt is incurred prior to, or within 90 days after such acquisition or the completion of construction or completion of improvement or such Capital Expenditure and (B) such Debt has a scheduled maturity date that is at least six calendar months after the Final Maturity Date and does not require any scheduled amortization or mandatory prepayments thereof prior to such date; provided further that the aggregate principal amount of Debt permitted under this Section 5.02(b)(vi) and Section 5.02(b)(vii) shall not exceed $7,500,000 at any time outstanding;
(vii) Capitalized Leases in an aggregate principal amount, together with the aggregate principal amount of all Debt permitted under Section 5.02(b)(vi), not in excess of $7,500,000 at any time outstanding;
(viii) Debt of any Person that either (x) is merged into or consolidated with AYE or any Subsidiary of AYE, or (y) becomes a Subsidiary of AYE after the date hereof in either case in accordance with the terms of Section 5.02(f), provided that with respect to clause (y) (A) such Debt is existing at the time such Person becomes a Subsidiary of AYE (other than Debt incurred solely in contemplation of such Person becoming a Subsidiary of AYE), (B) immediately after giving effect to the investment in such Subsidiary, no Default shall have occurred and be continuing, and (C) such Debt is non-recourse to AYE or any other Subsidiary (other than with respect to such Person and its Subsidiaries to the extent such Debt was with recourse to such Person and/or to its Subsidiaries at the time of such investment);
(ix) Debt arising from the honoring by a bank or financial institution of a check, draft or similar transactions instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, so long as such Debt is covered within five Business Days;
(x) Debt in respect of workers' compensation claims, self-insurance obligations, bankers' acceptance and performance and surety bonds provided by AYE or any Subsidiary of AYE in the ordinary course of business;
(xi) Debt that may be deemed to arise as a result of agreements of AYE or any of Subsidiary of AYE providing for indemnification, adjustment of purchase price or any similar obligations, in each case, incurred in connection with the sale or disposition of any business, assets or Equity Interests in any Subsidiary of AYE consummated not in contravention of Section 5.02(e) in an amount not to exceed with respect to any such sale or disposition the amount of gross proceeds received by AYE or such Subsidiary in connection with such sale or disposition;
(xii) Debt of AYE represented by letters of credit, surety bonds, Contingent Obligations and performance bonds supporting obligations of AYE or its Subsidiaries so long as, after giving effect to such letters of credit, surety bonds, Contingent Obligations and performance bonds (and the Investment represented thereby) AYE would be in compliance with Section 5.02(f)(v);
(xiii) reimbursement obligations owed to Affiliates for amounts paid on behalf of any Borrower or any of Subsidiary of any Borrower in accordance with applicable requirements under Applicable Law with respect to the provision of goods or services to AYE or such Subsidiary;
(xiv) other unsecured Debt of AYE or any Subsidiary of AYE not to exceed $20,000,000 at any time outstanding; provided such Debt has a scheduled maturity date that is at least six calendar months later than the Final Maturity Date and does not require any scheduled amortization or mandatory prepayments thereof prior to such date;
(xv) unsecured Debt in respect of obligations of AYE or any Subsidiary of AYE to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that with respect to any material invoice, such obligations (A) are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 90 days of the incurrence of the related Debt) in the ordinary course of business and not in connection with the borrowing of money, (B) are not more than 90 days past due and (C) are not subject to a Contest;
(xvi) Permitted Refinancing Debt incurred in respect of any Debt permitted under clauses (i), (iii), (vi), (vii), (viii) recourse and (xiv) above or this clause (xvi);
(xvii) Debt or Contingent Obligations incurred by AYE or its Subsidiaries in connection with loans and advances to its employees in the ordinary course of its business as presently conducted in an aggregate principal amount not to exceed $2,000,000 at any time outstanding;
(xviii) secured Debtor unsecured Debt owed to PNC Bank, National Association from time to time in connection with the extension of credit to AYE or its Subsidiaries for the account of one or more employees or departments of AYE or its Subsidiaries in respect of costs and expenses incurred by such employees or departments in connection with the conduct of business on behalf of AYE or its Subsidiaries in an aggregate principal amount not to exceed $10,000,000 at any one time outstanding;
(xix) unsecured Debt incurred by AYE, any Regulated Subsidiary or any Buffalo Creek SPV in connection with the Buffalo Reserve Project and/or any Joint Ventures in an aggregate amount not to exceed $75,000,000 at any time outstanding; provided that such Debt has a scheduled maturity date that is at least six calendar months later than the Final Maturity Date and does not require any scheduled amortization or mandatory prepayments thereof prior to such date;
(Axx) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset ValueServices Corp Regulated Debt; and
(viiixxi) unsecured Services Corp AESC Debt the incurrence of which would in an aggregate amount not result in a Default under Section 5.04to exceed $17,500,000 at any time outstanding.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any Subsidiary of its Subsidiaries Parent to create, incur, assume or suffer to exist, any Debt, except prior to the initial Borrowings on the Closing Date (x) to the extent permitted under Section 7.02 of the Existing Parent Credit Agreement (as in effect on the date hereof) or (y) any other transaction to the extent the restriction of such transaction by this Agreement is prohibited by Section 7.17 of the Existing Parent Credit Agreement (as in effect on the date hereof), and from and after the Closing Date except:
(i) Debt under the Loan Documents;
(iia) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(Ci) Debt in respect of Hedge Agreements designed 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 price of metals incurred in the ordinary course of business and consistent with prudent business practicespractice, and
and (Dii) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, any Existing Letter of Credit or any Bank Guarantee to the incurrence extent that a Letter of which would not result Credit has been issued and is outstanding hereunder to support such Loan Party’s reimbursement obligation in a Default under any respect of the covenants contained in Section 5.04such Existing Letter of Credit or Bank Guarantee;
(vb) Debt constituting Intercompany Loans to the extent permitted by Section 7.06(f) or other Intercompany Debt otherwise permitted by Section 7.06;
(c) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;its Subsidiaries,
(vii) endorsements of negotiable instruments for deposit or collection or similar transactions Debt under the Loan Documents,
(ii) Debt secured by Liens permitted by Section 7.01(d) not to exceed in the aggregate $100,000,000 at any time outstanding,
(iii) unsecured trade payables not overdue by more than 60 days incurred in the ordinary course of business;,
(viiiv) recourse secured DebtDebt under Capitalized Leases, provided that such Debt (A) is as determined in accordance with GAAP, in an aggregate amount not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate $50,000,000 at any time outstanding 10% of Total Asset Valueoutstanding; and
(viiiv) unsecured Debt the incurrence in respect of which would letters of credit or Bank Guarantees (other than those issued pursuant to this Agreement) in an aggregate principal amount not result in a Default under Section 5.04.to exceed $200,000,000 outstanding at any time;
Appears in 1 contract
Sources: Credit Agreement (Colfax CORP)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of the Borrower,
(A) Debt in respect of Hedge Agreements required pursuant to Section 5.01(o) or other Hedge Agreements designed to hedge against fluctuations in interest rates incurred in the ordinary course of business and consistent with prudent business practice; provided, that the aggregate notional amount for all such Hedge Agreements shall not exceed $75,000,000 at any Loan Party or any Subsidiary of a Loan Partytime, and
(B) Debt owed to any other Loan Party or any wholly-a wholly owned Subsidiary of any Loan Partythe Borrower, provided thatwhich Debt (x) shall constitute Pledged Debt, in each case, such Debt (y) shall be on subordinated terms reasonably acceptable to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance reasonably satisfactory to the Administrative Agent, which Agent and such promissory notes shall (unless payable to the Borrower) by their terms be subordinated to pledged as security for the Obligations of the Loan Parties holder thereof under the Loan DocumentsDocuments to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement;
(ii) in the case of any Subsidiary of the Borrower, Debt owed to the Borrower or to a wholly owned Subsidiary of the Borrower, provided that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall be on terms reasonably acceptable to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance reasonably 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) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extendingGuaranties and, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) Borrower and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) (x) so long as no Default has occurred and is continuing, Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 2,000,000 at any time outstanding, and (y) Debt assumed pursuant to a Permitted Asset Exchange and secured by Liens permitted by Section 5.02(a)(iv) not to exceed, together with any Debt assumed pursuant to clause (C)(y) below, $1,000,000,
(BC) (1x) Capitalized Leases not to exceed in the aggregate $10,000,000 2,000,000 at any time outstanding, and (2y) in the case of Capitalized Leases assumed pursuant to a Permitted Asset Exchange not to exceed, together with any Capitalized Lease Debt assumed pursuant to which any Subsidiary of a Loan Party is a partyclause (B)(y) above, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease$1,000,000,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any ---- of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, exceptDebt other than:
(i) in the case of the Borrower,
(A) Debt under the Synthetic Lease Documents in a principal amount outstanding not to exceed the principal amount outstanding on the Closing Date,
(B) (x) the Secured Hedge Agreements between the Borrower and BNP Paribas and between the Borrower and Union Bank of California, N.A. and (y) other Hedge Agreements whose purpose is to hedge against fluctuations in interest rates and are entered into by the Borrower in the ordinary course of business, consistent with prudent business practice and not entered into for speculative purposes; provided that the aggregate notional amount of such Secured Hedge Agreements and other Hedge Agreements shall not exceed $100,000,000 at any time outstanding, and
(C) Debt owed to a wholly-owned Domestic Subsidiary of the Borrower that is a Loan Party; provided that such Debt -------- is evidenced by a promissory note that has been pledged to the Administrative Agent pursuant to the Security Agreement.
(ii) in the case of any wholly-owned Domestic Subsidiary of the Borrower that is a Loan Party, Debt owed to the Borrower or to another wholly-owned Domestic Subsidiary of the Borrower that is a Loan Party so long as such Debt is evidenced by a promissory note that has been pledged to the Administrative Agent pursuant to the Security Agreement; and
(iii) in the case of the Borrower and any of its Subsidiaries,
(A) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(AB) Debt secured by Liens permitted by Section 5.02(a)(iv6.02(a)(v) and (vi) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed the amounts set forth in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized LeaseSections,
(C) the Surviving Debt, and any Debt issued in respect exchange for, or the net proceeds of Hedge Agreements designed which are used to hedge against fluctuations in refinance, all or a part of the Surviving Debt; provided, however, that the -------- ------- principal amount of such refinancing Debt does not exceed the principal amount, plus accrued interest rates or foreign exchange rates incurred in (if any), of the ordinary course of business and consistent with prudent business practices, andSurviving Debt so refinanced,
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;,
(viiE) recourse secured Debt, provided that unsecured Debt of the Borrower in respect of its daily overdraft facility but only to the extent such Debt (A1) is incurred in the ordinary course of the Borrower's business consistent with past practices (2) does not recourse to exceed $7,500,000 in principal amount at any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Assettime outstanding, and (C3) shall not exceed is repaid in full within 3 Business Days of the incurrence of such Debt, and
(F) other unsecured Debt (other than Debt owed to Casino) of the Borrower and its Subsidiaries in an aggregate principal amount at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04to exceed $10,000,000.
Appears in 1 contract
Debt. Create, incur, assume or suffer to existassume, permit, guarantee, or permit any of its Subsidiaries otherwise become or remain, directly or indirectly, liable with respect to create, incur, assume or suffer to exist, any Debt, except:
(ia) Debt under evidenced by this Agreement and the other Loan Documents;
(iib) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of incurred by any Loan Party, provided that, in each case, that at the time of incurrence of such Debt (y) shall and after giving pro-forma effect thereto, the Borrower would be on terms acceptable to in compliance with Section 6.13 and so long as no Unmatured Event of Default or Event of Default has occurred and is continuing at the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations time of the Loan Parties under the Loan Documentssuch incurrence;
(iiic) Contingent Obligations resulting from the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case endorsement of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viid) recourse secured DebtDebt of (i) any Subsidiary to Borrower or to any Guarantor, provided (ii) Borrower or any Guarantor to any other Borrower or any Guarantor, or (iii) any Subsidiary that such Debt (A) is not recourse a Loan Party to any other Subsidiary Guarantor that owns is not a Loan Party;
(e) Debt which may be deemed to exist pursuant to any Borrowing Base Asset performance bonds, surety bonds, statutory bonds, appeal bonds or similar obligations incurred in the ordinary course of business;
(f) Debt in respect of netting services, overdraft protections and otherwise in connection with deposit accounts incurred in the ordinary course of business;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of Loan Parties and their Subsidiaries;
(h) Debt of a Loan Party or any direct of its Subsidiaries under any Hedging Agreement so long as such Hedging Agreements are used solely as a part of its normal business operations as a risk management strategy or indirect Equity Interest thereinhedge against changes resulting from market operations and not as a means to speculate for investment purposes on trends and shifts in financial or commodities markets;
(i) Debt of any Loan Party under Back-to-Back Lending Facilities, in an aggregate principal amount not to exceed $50,000,000;
(Bj) is not secured Debt incurred in the ordinary course of business under incentive, non-compete, consulting, deferred compensation, or other similar arrangements incurred by any Lien on any Borrowing Base AssetLoan Party;
(k) Debt incurred in the ordinary course of business with respect to the financing of insurance premiums;
(l) Debt in respect of taxes, and (C) assessments or governmental charges to the extent that payment thereof shall not exceed in at the aggregate at any time outstanding 10% of Total Asset Valuebe required to be made hereunder; and
(viiim) unsecured other Debt of the Subsidiaries (other than any Loan Party) in an aggregate principal amount for all such Subsidiaries not to exceed $40,000,000 at any one time and so long as no Unmatured Event of Default or Event of Default has occurred and is continuing at the time of incurrence of which would any such other Debt;
(n) Debt (not result to exceed $200,000,000 for all such Foreign Subsidiaries at any one time) incurred by any Foreign Subsidiary in connection with, or otherwise to finance (directly or indirectly) any Investment made to comply with any regulatory requirements (including, without limitation, risk retention requirements) provided that any such Debt is non-recourse to the Borrower or any Loan Party (provided, no Subsidiary other than a Default under Section 5.04Foreign Subsidiary shall be liable for such Debt except to the extent such Debt is permitted pursuant to clause (m) above);
(o) guaranties by Loan Parties or other Subsidiaries in respect of real estate lease obligations incurred in the ordinary course of business; and
(p) Purchase Money Debt.
Appears in 1 contract
Sources: Amendment No. 4 (Ares Management Lp)
Debt. Create, incur, assume or suffer to existassume, permit, guarantee, or permit any of its Subsidiaries otherwise become or remain, directly or indirectly, liable with respect to create, incur, assume or suffer to exist, any Debt, except:
(ia) Debt under evidenced by this Agreement and the other Loan Documents;
(iib) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of incurred by any Loan Party, provided that, in each case, that at the time of incurrence of such Debt and after giving pro-forma effect thereto, the Borrower would be in compliance with Section 6.13 and so long as no Unmatured Event of Default or Event of Default has occurred and is continuing at the time of such incurrence, provided further, that the Loan Parties shall cause any Debt incurred pursuant to this clause (yb) shall be on terms acceptable and owed to any Subsidiary or any other Subordinated Creditor (as defined in the Administrative Agent and (zIntercompany Subordination Agreement) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of Loans on substantially the Loan Parties under same terms as set forth in the Loan DocumentsIntercompany Subordination Agreement;
(iiic) Contingent Obligations resulting from the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case endorsement of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viid) recourse secured DebtDebt of (i) any Subsidiary to a Loan Party, provided (ii) any Loan Party to any other Loan Party, (iii) any Restricted Subsidiary of a Loan Party to any other Restricted Subsidiary of a Loan Party or (iv) any Subsidiary that such Debt (A) is not recourse a Restricted Subsidiary of a Loan Party to any other Subsidiary Guarantor that owns is not a Loan Party;
(e) Debt which may be deemed to exist pursuant to any Borrowing Base Asset performance bonds, surety bonds, statutory bonds, appeal bonds or similar obligations incurred in the ordinary course of business;
(f) Debt in respect of netting services, overdraft protections and otherwise in connection with deposit accounts incurred in the ordinary course of business;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of Loan Parties and their Subsidiaries;
(h) Debt of a Loan Party or any direct of its Subsidiaries under any Hedging Agreement so long as such Hedging Agreements are used solely as a part of its normal business operations as a risk management strategy or indirect Equity Interest thereinhedge against changes resulting from market operations and not as a means to speculate for investment purposes on trends and shifts in financial or commodities markets;
(i) Debt of any Loan Party or Subsidiary under Back-to-Back Lending Facilities, in an aggregate principal amount not to exceed $50,000,000;
(Bj) is not secured Debt incurred in the ordinary course of business under incentive, non-compete, consulting, deferred compensation, or other similar arrangements incurred by any Lien on any Borrowing Base AssetLoan Party or Subsidiary;
(k) Debt incurred in the ordinary course of business with respect to the financing of insurance premiums;
(l) Debt in respect of taxes, and (C) assessments or governmental charges to the extent that payment thereof shall not exceed in at the aggregate at any time outstanding 10% of Total Asset Valuebe required to be made hereunder; and
(viiim) unsecured other Debt of the Subsidiaries (other than any Loan Party) in an aggregate principal amount for all such Subsidiaries not to exceed $40,000,000 at any one time and so long as no Unmatured Event of Default or Event of Default has occurred and is continuing at the time of incurrence of which would any such other Debt;
(n) Debt incurred by any CLO Management Subsidiary in connection with, or otherwise to finance (directly or indirectly) any Investment made to comply with any regulatory requirements (including, without limitation, risk retention requirements) provided that any such Debt is non-recourse to any Loan Party or any Restricted Subsidiary (provided, that an Unrestricted Subsidiary shall only be liable for such Debt to the extent such Debt is permitted pursuant to clause (p) of this Section 6.1);
(o) guaranties by Loan Parties or other Subsidiaries in respect of real estate lease obligations incurred in the ordinary course of business;
(p) Debt (not result in to exceed $300,000,000 at any one time) incurred by any Unrestricted Subsidiary provided that any such Debt is non-recourse to any Loan Party or any Restricted Subsidiary (provided, that a Default under CLO Management Subsidiary shall only be liable for such Debt to the extent such Debt is permitted pursuant to clause (n) of this Section 5.04.6.1); and
Appears in 1 contract
Sources: Amendment No. 6 (Ares Management Lp)
Debt. CreateBorrower will not incur, incurcreate, assume or suffer permit to exist, or and will not permit any of its Subsidiaries Subsidiary to incur, create, incur, assume or suffer permit to exist, any Debt, except:
except (i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iiia) the Surviving Obligations, (b) purchase money Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to Obligations in an aggregate principal amount which any Subsidiary of a Loan Party is a partydoes not exceed $250,000 outstanding (or, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and SPEs, such amounts as may be set forth in the Borrowerapplicable SPE Mortgage Debt documents) at any time, (c) Debt consisting arising from the endorsement of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
, (viid) recourse secured Debt owed by (i) one Credit Party to another Credit Party or (ii) any Subsidiary to Borrower, (e) obligations of any Credit Party for taxes, assessments or other governmental charges which are (i) not at the time delinquent or thereafter payable without penalty or (ii) being contested in good faith by appropriate proceedings and, in each case, for which 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 any of the foregoing clauses, provided that the aggregate outstanding principal amount of all such Debt pursuant to this clause (Aj) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall does not exceed in the aggregate $250,000 at any time outstanding 10% (or, in the case of Total Asset Value; and
(viii) unsecured the SPEs, such amounts as may be set forth in the applicable SPE Mortgage Debt the incurrence of which would not result in a Default under Section 5.04documents).
Appears in 1 contract
Debt. CreateNot, incur, assume or suffer to exist, or and not permit any of its Subsidiaries to Loan Party or Subsidiary thereof to, create, incur, assume or suffer to exist, exist any Debt, except:
(ia) Debt Obligations under this Agreement and the other Loan Documents;
(iib) in the case Senior Credit Facility;
(c) [Intentionally Omitted];
(i) Purchase Money Debt incurred (for avoidance of any doubt, other than pursuant to an Acquisition) by a Loan Party or any Subsidiary of a Loan Party, Debt owed thereof with respect to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such Debt Equipment that is being acquired (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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstandingby, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred will be used in the ordinary course of business of, such Loan Party or Subsidiary (and consistent with prudent business practicesany extension, and
renewal, or refinancing thereof), and (Dii) Non-Recourse Debt Capitalized Lease Obligations incurred (includingfor avoidance of doubt, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assetspursuant to an Acquisition) by a Loan Party or Subsidiary thereof with respect to Equipment that is being acquired by, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions will be used in the ordinary course of businessbusiness of, such Loan Party or Subsidiary (and any extension, renewal, or refinancing thereof), in the cases of clauses (i) and (ii), in an aggregate principal outstanding amount for all Loan Parties and their Subsidiaries under this Section 11.1(d) not to exceed the product of (x) U.S.$1,500 multiplied by (y) the number of people (x) employed on a full-time basis by members of the Consolidated Group, and (y) employed by others, but who are working on a full-time equivalent basis on projects for the Consolidated Group, in each case as of the last day of the most recently ended Computation Period for which financial statements have been delivered (or were required to be delivered) to Administrative Agent under and in accordance with Section 10.1.2;
(viie) recourse secured Debt, provided that such Debt (Ai) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base AssetPermitted Earn-out Obligations, and (Cii) shall Subordinated Debt (for avoidance of doubt, other than the Permitted Earn-out Obligations, but including all Permitted Investor Debt and Permitted Exitus Debt) incurred after the Closing Date in an aggregate outstanding amount for all Loan Parties and their Subsidiaries not to exceed in the aggregate $11,700,000 at any time outstanding 10% of Total Asset Value; andtime, so long as such Subordinated Debt is subject to a Subordination Agreement;
(viiif) unsecured Debt of any Loan Party (other than Intermediate Holdings) to any other Loan Party (other than Intermediate Holdings), as long as (i) such Debt is evidenced by the incurrence Master Intercompany Note and pledged and delivered to Administrative Agent pursuant to the Loan Documents as additional collateral security for the Obligations and (ii) the obligations under the Master Intercompany Note are subordinated to the Obligations of which would not result Borrowers hereunder on terms and in a manner satisfactory to the Required Lenders, in their discretion (but which terms shall in any event permit payments to be made to any Loan Party so long as no Event of Default under Section 5.04.of the type described in Sections 13.1.1 or 13.1.4 shall be continuing);
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan DocumentsDocuments and the Hedge Obligations;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(ivii) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in under the aggregate $10,000,000 at any time outstandingLoan Documents,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 5,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease Leases to which any Subsidiary of a Loan Party is a party, any Contingent Obligation Debt of such Loan Party of the type described in clause (i) of the definition of “Debt” guaranteeing the Obligations of such Subsidiary under such Capitalized LeaseLeases,
(C) the Surviving Debt described on Schedule 4.01(o) hereto and any Refinancing Debt that extends, refunds or refinances such Surviving Debt,
(D) Debt in respect of Hedge Agreements entered into by the Borrower and designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, andpractice,
(DE) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement, and the obligations under any Customary Carve-Out Agreements related thereto,
(F) Secured Recourse Debt the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement, provided that (1) each individual obligation included within Secured Recourse Debt shall not exceed 80% of the covenants contained value of the collateral securing such Secured Recourse Debt as reasonably determined by Borrower and approved by Administrative Agent, and (2) the aggregate amount of Secured Recourse Debt shall not exceed 15% of Consolidated Total Asset Value,
(G) Unsecured Debt the incurrence of which would not result in a Default under Section 5.045.04 or any other provision of this Agreement, and
(H) Qualifying Trust Preferred Obligations;
(viii) in In the case of the Parent Guarantor Guarantor,
(A) (1) Debt under the Loan Documents and (2) Debt under the Borrower, Debt consisting of KeyBank/ACC Term Loan Agreement,
(B) Obligations under any Customary Carve-Out AgreementsAgreements related to Non Recourse Debt permitted under Section 5.02(b)(ii)(E),
(C) Debt in respect of Completion Guaranties,
(D) Debt in respect of Environmental Indemnities, and
(E) Debt under ▇▇▇▇▇▇▇ Mac/ACC Loan;
(viiv) In the case of the Borrower;
(A) Debt in respect of Completion Guaranties, and
(B) Debt in respect of Environmental Indemnities; and
(v) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
; provided that, notwithstanding anything herein to the contrary, no Loan Party shall, nor shall it permit any of its Subsidiaries (viiincluding without limitation the On-Campus Participating Entities) recourse secured Debtto, provided that such create, incur or assume any Debt (A) is not recourse relating to any Subsidiary Guarantor that owns any Borrowing Base Asset the On-Campus Participating Entities or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt On-Campus Participating Properties after the incurrence of which would not result in a Default under Section 5.04date hereof.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(ivii) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in under the aggregate $10,000,000 at any time outstandingLoan Documents,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 5,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease Leases to which any Subsidiary of a Loan Party is a party, any Contingent Obligation Debt of such Loan Party of the type described in clause (i) of the definition of “Debt” guaranteeing the Obligations of such Subsidiary under such Capitalized LeaseLeases,
(C) the Surviving Debt described on Schedule 4.01(o) hereto and any Refinancing Debt that extends, refunds or refinances such Surviving Debt,
(D) Debt in respect of Hedge Agreements entered into by the Borrower and designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, andpractice,
(DE) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement, and the obligations under any Customary Carve-Out Agreements related thereto,
(F) Debt consisting of Completion Guarantees and guarantees of construction financing relating to Development Properties in an aggregate principal amount not to exceed at any time 15% of Consolidated Total Asset Value; provided that, prior to entering into any such guarantee of construction financing, the Borrower shall have provided the Administative Agent with calculations demonstrating, in reasonable detail, pro forma compliance by the Parent Guarantor with the covenants contained in Section 5.045.04 as of the end of the most recent four fiscal-quarter period after giving effect to the incurrence of liability under such guarantee as of the beginning of such period, and
(G) Unsecured Debt in an aggregate principal amount not to exceed $5,000,000 at any time outstanding;
(viii) in the case of the Parent Guarantor and the BorrowerGuarantor, Debt consisting of Customary Carve-Out Agreements;under the Loan Documents; and
(viiv) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
; provided that, notwithstanding anything herein to the contrary, no Loan Party shall, nor shall it permit any of its Subsidiaries (viiincluding without limitation the On-Campus Participating Entities) recourse secured Debtto, provided that such create, incur or assume any Debt (A) is not recourse relating to any Subsidiary Guarantor that owns any Borrowing Base Asset the On-Campus Participating Entities or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt On-Campus Participating Properties after the incurrence of which would not result in a Default under Section 5.04date hereof.
Appears in 1 contract
Debt. Create, incur, assume or suffer permit to exist, or permit any of its Subsidiaries Subsidiary, to create, incur, assume or suffer permit to exist, any Debtdirect or contingent indebtedness, except:
liabilities or lease obligations (other than those to the Lender Group or the Issuing Bank), or become liable for the debts of others without the Agent's written consent, except for (i) Debt under the Loan Documents;
acquiring goods, supplies or merchandise on normal trade credit; (ii) endorsing negotiable instruments received in the case usual course of any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
business; (iii) obtaining surety bonds in the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extendingusual course of business, refunding or refinancing such Surviving Debt;
(iv) the indebtedness of the Borrower and its Subsidiaries existing as of, and disclosed to the Agent prior to the date of this Agreement; (v) secured indebtedness, in the case aggregate, for purchase money financing of each Loan Party (other than the Parent Guarantorequipment which is permitted under SECTION 6.2(e)(ii) hereof and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized obligations under Capital Leases not to exceed in the aggregate $10,000,000 1,000,000 outstanding at any time outstanding, time; and (2vi) operating leases.
13. The first three (3) sentences of SECTION 9.1 of the Agreement are hereby amended to read in their entirety as follows: Each Lender hereby designates and appoints Mellon Bank, N.A. as its agent under this Agreement and the case other Loan Documents and each Lender and the Issuing Bank (by its acceptance of the benefits hereof) hereby irrevocably authorizes the Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any Capitalized Lease other Loan Document, together with such powers as are reasonably incidental thereto. The Agent agrees to which any Subsidiary act as such on the express conditions contained in this ARTICLE IX. The provisions of a Loan Party is a party, any Contingent Obligation this ARTICLE IX are solely for the benefit of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitationAgent, the JV Pro Rata Share of NonAgent-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base AssetsRelated Persons, the incurrence Lenders and the Issuing Bank; the Borrower shall have no rights as a third party beneficiary of which would not result in a Default under any of the covenants provisions contained in Section 5.04;
(v) in the case herein; provided, however, that certain of the Parent Guarantor and provisions of SECTION 9.10 hereof also shall be for the benefit of the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or (a) The Guarantor will not permit any of its Subsidiaries to create, incur, assume or suffer to exist, exist any Debt, except:
except (i) Debt under the Loan Related Documents;
, (ii) in Debt owing to the case of any Loan Party Guarantor or any a Wholly-Owned Consolidated Subsidiary of a Loan Partythe Guarantor, Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing of Tripar Partnership, a Bermuda general partnership, owing to other Subsidiaries or Debt extendingof such other Subsidiaries owing to Tripar Partnership, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course letters of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions credit issued in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (Bv) is Debt created by exercise of overdraft privileges on a basis not secured by any Lien on any Borrowing Base Asset, and (C) shall more frequent than once each calendar month for not more than five Euro-Dollar Business Days in an amount not to exceed $50,000,000 in the aggregate at any time outstanding 10% one time, (vi) subordinated Debt of Total Asset Value; and
the Borrower owing to ACE Insurance under the Subordinated Loan Agreement, (vii) Debt in an amount not to exceed $70,000,000 incurred in connection with the development by the Guarantor and/or any of its Subsidiaries of the "Bermudiana Site" in Hamilton, Bermuda, and (viii) unsecured Debt not permitted by the incurrence foregoing clauses of which would this Section in an aggregate principal amount not result in to exceed $20,000,000 at any time outstanding.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, create, assume or suffer to exist any Debt, except (i) Debt under the Financing Documents, (ii) Debt under the Subordinated Loan Agreement owing to ACE Insurance, (iii) Debt owing to ACE Limited subordinated to the same extent as Debt under the Subordinated Loan Agreement and (iv) Debt owing to the Borrower or a Default under Section 5.04Wholly-Owned Consolidated Subsidiary of the Borrower.
Appears in 1 contract
Sources: Term Loan Agreement (Ace LTD)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, exceptDebt other than:
(i) in the case of the Borrower, Debt under in respect of Hedge Agreements designed to hedge against fluctuations in interest rates incurred in the Loan Documentsordinary course of business and consistent with prudent business practice the aggregate Agreement Value thereof not to exceed $100,000,000 at any time outstanding;
(ii) in the case of any Loan Party or any Subsidiary of a Loan Partythe Borrower, Debt owed to any other Loan Party or any wholly-a wholly- owned Subsidiary of any Loan Partythe Borrower, provided that, in each case, that (x) such Debt is subordinated to any Debt of the Borrower under the Loan Documents on the terms and conditions set forth in Exhibit L and (y) if such Debt is owed to a Collateral Grantor (1) such Debt shall be on terms acceptable to the Administrative Agent constitute Pledged Debt, and (z2) shall be if evidenced by promissory notes notes, in form and substance satisfactory to the Administrative Agent, which such promissory notes shall (unless payable to the Borrower) by their terms be subordinated to pledged as security for the Obligations of the Loan Parties holder thereof under the Loan DocumentsDocuments to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreement;
(iii) in the Surviving case of any of the Subsidiaries of the Borrower (other than Captain D's Properties or Captain D's Realty) Debt described owed to the Borrower or to a wholly-owned Subsidiary of the Borrower; provided that (x) such Debt is subordinated to any Debt of such Subsidiary under the Loan Documents on Schedule 4.01(nthe terms and conditions set forth in Exhibit L, and (y) hereto if such Debt is owed to a Collateral Grantor, (1) such Debt shall constitute Pledged Debt, and any Refinancing Debt extending(2) if evidenced by promissory notes, refunding or refinancing in form and substance satisfactory to the Administrative Agent, such Surviving Debtpromissory 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;
(iv) in the case of each Loan Party the Borrower and any of its Subsidiaries (other than Captain D's Properties or Captain D's Realty);
(A) Debt under the Parent Guarantor) and its SubsidiariesLoan Documents,
(AB) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 3,000,000 at any time outstanding,
(B) (1i) Capitalized Leases (other than those permitted by subclause (ii) of this clause (C) and those permitted by clause (E) below) not to exceed in the aggregate $10,000,000 15,000,000 at any time outstanding, (ii) Capitalized Leases in connection with the Captain D's Lease Program not to exceed in the aggregate $5,000,000 in any Fiscal Year plus, in any Fiscal Year ending in 2000 or thereafter, an amount up to $5,000,000 equal to the excess (if any) of the amount of Capitalized Leases permitted to be incurred in the immediately preceding Fiscal Year in connection with the Captain D's Lease Program over the aggregate amount of Capitalized Leases in connection with the Captain D's Lease Program actually incurred in the immediately preceding Fiscal Year, and (2iii) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04.of
Appears in 1 contract
Sources: Credit Agreement (Shoneys Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, exceptother than:
(a) Debt outstanding pursuant to the Credit Documents; plus
(b) Debt outstanding on the Closing Date and described on SCHEDULE 6.18 hereof (including the guaranty of the obligations of the Borrower pursuant to the Subordinated Note Purchase Agreement by any Subsidiary of Borrower which is or simultaneously becomes a party to the Subsidiary Guaranty Agreement); plus
(i) Debt under owing to a Credit Party in the Loan Documents;
form of Intercompany Advances, payable on demand, and (ii) Investments in Subsidiaries permitted by SECTION 8.03; PROVIDED THAT, the case aggregate amount of Intercompany Advances at any Loan Party or any Subsidiary of a Loan Party, Debt one time outstanding from the Borrower to its Subsidiaries (excluding amounts owed by ▇▇▇▇▇ Funding to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, the Borrower in each case, such Debt (yconnection with the Securitization Program) 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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 85,000,000 at any time outstanding,; plus
(Bd) (1) Capitalized Leases not purchase money Debt to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,extent permitted by SECTION 8.01; plus
(Ce) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates unsecured current liabilities (not resulting from any borrowing) incurred in the ordinary course of business for current purposes and consistent with prudent business practices, andnot represented by a promissory note or other evidence of indebtedness; plus
(Df) Non-Recourse Debt (including, without limitation, incurred by Masland in connection with the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, Masland Bonds as long as such Masland Bonds are owned by the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;Administrative Agent; plus
(vg) Deemed Debt incurred by ▇▇▇▇▇ Funding in connection with the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;Securitization Program; plus
(vih) endorsements Additional Debt and Deemed Debt to the extent permitted pursuant to the last sentence of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in a Default under Section 5.04this SECTION 8.
Appears in 1 contract
Sources: Credit Agreement (Dixie Group Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(ia) Debt under the Loan Documents;
(i) the Senior Notes in an aggregate principal amount of $500 million, the Senior Subordinated Notes in an aggregate principal amount of $850 million, the Senior Note Guarantees and the Senior Subordinated Note Guarantees (including any notes and guarantees issued in exchange therefor in accordance with the registration rights documents entered into in connection with the issuance of the Senior Notes, the Senior Subordinated Notes, the Senior Note Guarantees and the Senior Subordinated Note Guarantees) and (ii) Debt existing on the Closing Date and described on Schedule 7.2(b) hereto;
(c) Debt of the Borrower in respect of Swap Agreements (A) existing on the date of this Agreement and described in Schedule 7.2(b) hereto or (B) entered into from time to time after the date of this Agreement with counter parties that are Lenders at the time such Swap Agreement is entered into (or Affiliates of such Lender at such time); provided that, in all cases under this clause (c), all such Swap Agreements shall not be speculative in nature (including, without limitation, with respect to the term and purpose thereof);
(d) Debt of (A) the Borrower owing to any other Loan Party, and (B) any of the Subsidiaries owing to the Borrower or any other Loan Party to the extent permitted under Section 7.6(h); provided that any such Debt shall be evidenced by the Intercompany Note and, in the case of any Loan Party a loan or any Subsidiary of advance by a Loan Party, pledged by such Loan Party as Collateral pursuant to the Security Documents; provided, further, that such Debt of, or owed to, a Subsidiary that is not a Guarantor need not be evidenced by the Intercompany Note so long as the net amount of such Debt owed by all such Subsidiaries not evidenced by the Intercompany Note does not exceed $50,000,000;
(e) Debt incurred after the date of this Agreement and secured by Liens expressly permitted under Section 7.1(d) in an aggregate principal amount not to exceed, when aggregated with the principal amount of all Debt incurred under clause (f) of this Section 7.2, $135,000,000 or 7.5% of the Consolidated Tangible Assets of the Borrower and its Subsidiaries any other time outstanding;
(f) Capitalized Leases incurred after the date of this Agreement which, when aggregated with the principal amount of all Debt incurred under clause (e) of this Section 7.2, do not exceed $135,000,000 or 7.5% of the Consolidated Tangible Assets of the Borrower and its Subsidiaries at any time outstanding;
(g) Contingent Obligations of (A) the Borrower guaranteeing any obligations of any of the Loan Party or Parties, (B) any wholly-owned Subsidiary of the Borrower guaranteeing any obligations of the Borrower or a Loan Party, provided that, in each case, (C) any Subsidiary that is not a Loan Party guaranteeing any obligations of any other Subsidiary that is not a Loan Party (it being understood that if such Debt (ySubsidiary shall become a Loan Party then such Contingent Obligation shall no longer be permitted by this clause) shall be on terms acceptable to the Administrative Agent and (zD) shall be evidenced by promissory notes in form and substance satisfactory subject to the Administrative AgentSection 7.6(h), which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties guaranteeing any obligations of any Subsidiary that is not a Loan Party; provided that each such primary obligation is otherwise permitted under the terms of the Loan Documents;
(iiih) the Surviving unsecured Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) not otherwise permitted under this Section 7.2 in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) an aggregate amount not to exceed in the aggregate $10,000,000 175,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(vi) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viij) recourse secured DebtDebt comprised of indemnities given by the Borrower or any of its Subsidiaries, or guarantees or other similar undertakings by the Borrower or any of its Subsidiaries entered into in lieu thereof, in favor of the purchaser of property and assets of the Borrower and its Subsidiaries being sold, leased, transferred or otherwise disposed of in accordance with this Agreement and covering liabilities incurred by the Borrower or its applicable Subsidiary in respect of such property and assets prior to the date of consummation of the sale, lease, transfer or other disposition thereof, which indemnities, guarantees or undertakings are required under the terms of the documentation for such sale, lease, transfer or other disposition;
(k) Debt comprised of liabilities or other obligations assumed or retained by the Borrower or any of its Subsidiaries from Subsidiaries of the Borrower that are, or all or substantially all of the property and assets of which are, sold, leased, transferred or otherwise disposed of pursuant to Section 7.5(c) or (f); provided that such liabilities or other obligations were not created or incurred in contemplation of the related sale, lease, transfer or other disposition;
(l) unsecured Subordinated Debt or Redeemable Preferred Interests not otherwise permitted under this Section 7.2; provided that the aggregate amount of the outstanding principal amount of such unsecured Subordinated Debt and the maximum amount of the purchase price, redemption price or liquidation value (whichever is greater) of such Redeemable Preferred Interests does not exceed $400,000,000 at any time; provided further that either (x) such Debt or Redeemable Preferred Interests are incurred to finance an Investment permitted under Section 7.6(e) or (y) the Net Cash Proceeds thereof are applied in accordance with Section 2.11(a);
(m) Debt extending the maturity of, or refunding, refinancing or replacing, in whole or in part, any Debt permitted by Section 7.2(b) or incurred pursuant to this clause (m); provided, however, that (A) is the aggregate principal amount of such extended, refunding, refinancing or replacement Debt shall not recourse be increased above the principal amount thereof and the premium, if any, thereon outstanding immediately prior to such extension, refunding, refinancing or replacement and the amount of any Subsidiary Guarantor that owns any Borrowing Base Asset reasonable fees and expenses incurred with respect to such extension, refunding, refinancing or any direct or indirect Equity Interest thereinreplacement, (B) is the direct and contingent obligors therefor shall not secured by any Lien on any Borrowing Base Assetbe changed as a result of or in connection with such extension, and refunding, refinancing or replacement, (C) such extended, refunding, refinancing or replacement Debt shall not mature prior to the stated maturity date or mandatory redemption date of the Debt being so extended, refunded, refinanced or replaced, (D) if the Debt being so extended, refunded, refinanced or replaced is subordinated in right of payment or otherwise to the obligations of the Borrower or any of its Subsidiaries under and in respect of the Loan Documents, such extended, refunding, refinancing or replacement Debt shall be subordinated to such Obligations to at least the same extent, (E) the terms (other than pricing) of such extended, refunding, refinancing or replacement Debt are no more burdensome to the Borrower taken as a whole than the terms of the Debt being extended, refunded, refinanced or replaced and (F) pro forma for such transaction the Borrower shall be in compliance with Section 7.16 and any other applicable covenant hereunder;
(n) secured and unsecured Debt of Subsidiaries of the Borrower that are not Guarantors in an aggregate amount not to exceed $50,000,000 at any time outstanding;
(o) Debt comprised of guarantees given by the Borrower or any of its Subsidiaries in respect of any Special Purpose Licensed Entity which obligations, when aggregated with the aggregate amount of all Investments made under Section 7.6(i) hereof, shall not exceed in the aggregate $100,000,000 at any time outstanding 10% outstanding;
(p) Debt consisting of Total Asset ValueOperating Indebtedness; and
(viiiq) unsecured Debt in connection with Permitted Receivables Financings, provided that the incurrence of which would not result proceeds thereof are applied in a Default under accordance with Section 5.042.11(a).
Appears in 1 contract
Sources: Credit Agreement (Davita Inc)
Debt. CreateNo Loan Party shall incur or maintain any Debt, incur, assume other than:
(a) the Obligations;
(b) [Reserved];
(c) Debt (i) in respect of Capital Leases and purchase money obligations for fixed or suffer capital assets or (ii) of any Person acquired in a Permitted Acquisition (so long as such Debt (A) existed prior to exist, the acquisition of such Person by a Loan Party or permit any of its Subsidiaries to createSubsidiaries, incur(B) is not created in contemplation of such acquisition and (C) is solely the obligation of such Person, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) in the case and not of any Loan Party or any Subsidiary other Subsidiary), which in the case of a each of clauses (i) and (ii) may be secured by Liens under and within the applicable limitations set forth in clause (i) of the definition of Permitted Lien; provided, however, that the aggregate amount of all such Debt at any one time outstanding pursuant to this clause (c) shall not exceed the greater of (i) $10,000,000 and (ii) 2.50% of the consolidated total assets of the Loan PartyParties and their Subsidiaries;
(d) Debt incurred under sale and leaseback transactions permitted under Section 10.11;
(e) Debt secured by Real Estate and Equipment and/or proceeds thereof in an aggregate principal amount at any time outstanding not to exceed $10,000,000;
(f) Permitted Subordinated Debt;
(g) Debt incurred under the Term Loan Facility in an aggregate principal amount at any time outstanding not to exceed the sum of (i) $250,000,000, (ii) incremental facilities provided, that the principal amount of such incremental facilities do not exceed $50,000,000; and any Refinancing Notes, Permitted Debt owed to any other Exchange Notes or Credit Agreement Refinancing Indebtedness (each as defined in the Term Loan Party or any wholly-owned Subsidiary Agreement) issued in respect of any Loan Partysuch Debt, provided that, and in each case, such Debt (y) shall be on terms acceptable unless unsecured, subject to the Administrative Agent terms and conditions of the Intercreditor Agreement (z) shall be evidenced by promissory notes in form and substance or other intercreditor agreement reasonably satisfactory to the Administrative Agent);
(h) [Reserved];
(i) unsecured Debt outstanding under the PBGC Note in an aggregate principal amount at any time outstanding not to exceed $900,000;
(j) [Reserved];
(k) Debt outstanding on the Closing Date and set forth on Schedule 8.8;
(l) Debt of any Parent or any of its Subsidiary owing to a Parent any other Subsidiary of Parent, which promissory notes if such Debt is owed by a Loan Party to a Subsidiary that is not a Loan Party, shall (unless payable to the Borrower) by their terms be expressly subordinated in right of payment to the Obligations of pursuant to the Loan Parties under Intercompany Subordination Agreement or otherwise in a manner reasonably acceptable to the Loan DocumentsAdministrative Agent;
(iiim) the Surviving Debt described on Schedule 4.01(nobligations (contingent or otherwise) hereto and any Refinancing Debt extending, refunding of Parent or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a partyParent existing or arising under any Swap Contract, any Contingent Obligation of provided that (i) such Loan Party guaranteeing the Obligations of obligations are (or were) entered into by such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and consistent with prudent business practices, andnot for purposes of speculation and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party (other than pursuant to customary netting or setoff provisions);
(Dn) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt Guarantees of any Joint Venture) Loan Party in respect of Assets Debt otherwise permitted hereunder of any other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04Loan Party;
(vo) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements[Reserved];
(vip) endorsements Debt of negotiable instruments for deposit consisting of obligations to pay insurance premiums or collection or similar transactions take-or-pay obligations contained in supply arrangements incurred in the ordinary course of business;
(viiq) recourse secured Debt[Reserved];
(r) Debt in respect of overdraft facilities, provided that such automatic clearinghouse arrangements, employee credit card programs and other business cash management arrangements in the ordinary course of business;
(s) notes issued in connection with cashless stock repurchases to the extent otherwise permitted hereunder in an aggregate principal amount not to exceed $5,000,000 in any Fiscal Year;
(t) Debt representing deferred compensation to employees of Loan Parties or any of their Subsidiaries incurred in the ordinary course of business,
(Au) is not recourse [Reserved];
(v) [Reserved];
(w) [Reserved];
(x) Debt to any Subsidiary Guarantor that owns any Borrowing Base Asset current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Capital Stock of Parent or any direct or indirect Equity Interest therein, (B) is not secured parent of Parent permitted by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the aggregate at any time outstanding 10% of Total Asset ValueSection 10.2; and
(viiiy) unsecured Debt not otherwise permitted pursuant to clauses (c) through (x) of this Section 10.5 in an aggregate principal amount at any one time outstanding not to exceed the incurrence greater of which would not result (i) $25,000,000 and (ii) 6.25% of the consolidated total assets of the Loan Parties and their Subsidiaries.
(z) Permitted Refinancing Debt in a Default under Section 5.04respect of the foregoing.
Appears in 1 contract
Sources: Loan and Security Agreement (EveryWare Global, Inc.)
Debt. CreateNot, incur, assume or suffer to exist, or and not permit any of its Subsidiaries to Loan Party or Subsidiary thereof to, create, incur, assume or suffer to exist, exist any Debt, except:
(ia) Debt Obligations under this Agreement and the other Loan Documents;
(iib) in the case New Senior Credit Facility;
(c) [Intentionally Omitted];
(i) Purchase Money Debt incurred (for avoidance of any doubt, other than pursuant to an Acquisition) by a Loan Party or any Subsidiary of a Loan Party, Debt owed thereof with respect to any other Loan Party or any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such Debt Equipment that is being acquired (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, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(iii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstandingby, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred will be used in the ordinary course of business of, such Loan Party or Subsidiary (and consistent with prudent business practicesany extension, and
renewal, or refinancing thereof), and (Dii) Non-Recourse Debt Capitalized Lease Obligations incurred (includingfor avoidance of doubt, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assetspursuant to an Acquisition) by a Loan Party or Subsidiary thereof with respect to Equipment that is being acquired by, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsements of negotiable instruments for deposit or collection or similar transactions will be used in the ordinary course of businessbusiness of, such Loan Party or Subsidiary (and any extension, renewal, or refinancing thereof), in the cases of clauses (i) and (ii), in an aggregate principal outstanding amount for all Loan Parties and their Subsidiaries under this Section 11.1(d) not to exceed the product of (x) U.S.$1,500 multiplied by (y) the number of people (x) employed on a full-time basis by members of the Consolidated Group, and (y) employed by others, but who are working on a full-time equivalent basis on projects for the Consolidated Group, in each case as of the last day of the most recently ended Computation Period for which financial statements have been delivered (or were required to be delivered) to Administrative Agent under and in accordance with Section 10.1.2;
(viie) recourse secured Debt, provided that such Debt (Ai) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base AssetPermitted Earn-out Obligations, and (Cii) shall Subordinated Debt (for avoidance of doubt, other than the Permitted Earn-out Obligations, but including all Permitted Investor Debt and Permitted Exitus Debt) incurred after the Closing Date in an aggregate outstanding amount for all Loan Parties and their Subsidiaries not to exceed in the aggregate $11,700,000 at any time outstanding 10% of Total Asset Value; andtime, so long as such Subordinated Debt is subject to a Subordination Agreement;
(viiif) unsecured Debt of any Loan Party (other than Intermediate Holdings) to any other Loan Party (other than Intermediate Holdings), as long as (i) such Debt is evidenced by the incurrence Master Intercompany Note and pledged and delivered to Administrative Agent pursuant to the Loan Documents as additional collateral security for the Obligations and (ii) the obligations under the Master Intercompany Note are subordinated to the Obligations of which would not result Borrowers hereunder on terms and in a manner satisfactory to the Required Lenders, in their discretion (but which terms shall in any event permit payments to be made to any Loan Party so long as no Event of Default under Section 5.04.of the type described in Sections 13.1.1 or 13.1.4 shall be continuing);
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