Indebtedness. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the following: (a) Indebtedness under the Loan Documents; (b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01; (c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below); (i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k); (e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded; (f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;
Appears in 3 contracts
Sources: Credit Agreement (Babcock & Wilcox Co), Credit Agreement (Babcock & Wilcox Co), Credit Agreement (McDermott International Inc)
Indebtedness. The Borrower shall Borrowers will not, and shall will not permit any of its their respective Subsidiaries to, directly or indirectly create, incur, assume or otherwise become suffer to exist any Indebtedness, provided that each Borrower and any of their Subsidiaries may incur any Indebtedness (and all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or remain directly contingent interest with regard to such Indebtedness) if (x) immediately before and after such incurrence, no Default or indirectly liable with respect Event of Default shall have occurred and be continuing and (y) the Debt to Equity Ratio of each Borrower is less than or equal to 7.00 to 1.00 after giving pro forma effect thereto. The limitations set forth in the immediately preceding sentence shall not apply to any Indebtedness except for of the followingfollowing items:
(ai) Indebtedness arising under the Loan Documents;
(bii) Intercompany Indebtedness outstanding on owed among the date hereof and listed on Schedule 7.01;
Borrowers and/or their Subsidiaries (c) Guaranty Obligations incurred by the Borrower or including any Guarantor in respect of Indebtedness of the Borrower or used to finance any Guarantor that is permitted by this Section 7.01 (other than clause (g) belowFinancing Transaction);
(iiii) Permitted Subordinated Debt;
(iv) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, Hedging Agreements;
(iiv) Indebtedness in respect of sale overdraft facilities, netting services, automatic clearinghouse arrangements and leaseback transactions permitted by Section 7.13 other cash management and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by similar arrangements in the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount ordinary course of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)business;
(evi) renewals, extensions, refinancings additional Indebtedness of the Borrowers and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is their respective Subsidiaries in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and to exceed $20,000,000 at any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedtime outstanding;
(fvii) Indebtedness arising from intercompany loans under fronting and/or settlement facilities (i) from the Borrower to any Guarantor“Fronting Facilities”); (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) provided that, at least 10 Business Days prior to the Spinoff, from MII or incurring any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than or such shorter period as MHCB shall reasonably agree, it being agreed MHCB shall use commercially reasonable efforts to provide a response to TCG as soon as practicable after receipt of such notice), the relevant Borrower and/or Subsidiary shall have provided MHCB a bona fide opportunity (through a written notice to MHCB) to provide such Indebtedness, including an offer regarding the timing of establishing such indebtedness, and MHCB shall have either (1) declined (through a written notice from the Administrative Agent to such Borrower and/or Subsidiary) to accept such offer to provide such Indebtedness described in clause (iii) or (v2) of this clause failed to respond in writing to such offer, in each case, within such 10 Business Day period;
(f)viii) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant any Finance Subsidiary Debt (provided that, to the Collateral Agreement (if extent secured, such Finance Subsidiary Debt shall only be permitted to be secured by Liens satisfying the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) requirements of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;Section
Appears in 3 contracts
Sources: Revolving Credit Agreement (Carlyle Group Inc.), Revolving Credit Agreement (Carlyle Group Inc.), Revolving Credit Agreement (Carlyle Group Inc.)
Indebtedness. The Neither the Borrower shall not, and shall not permit nor any of its Subsidiaries to, shall directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingIndebtedness, except:
(ai) Indebtedness under the Loan DocumentsSecured Obligations;
(bii) Permitted Existing Indebtedness outstanding on the date hereof and listed on Schedule 7.01Permitted Refinancing Indebtedness in respect thereof;
(ciii) Guaranty Indebtedness in respect of obligations secured by Customary Permitted Liens;
(iv) Indebtedness constituting Contingent Obligations permitted by Section 7.3(E);
(v) subject to the terms of Section 7.3(Q), Indebtedness arising from intercompany loans and advances (a) from any Subsidiary to the Borrower or any wholly-owned Subsidiary or (b) from the Borrower to any wholly-owned Subsidiary; provided, that such Indebtedness shall be expressly subordinate to the payment in full in cash of the Secured Obligations on terms satisfactory to the Administrative Agent;
(vi) Indebtedness in respect of Hedging Obligations permitted under Section 7.3(P);
(vii) secured or unsecured purchase money Indebtedness (including Capitalized Leases) incurred by the Borrower or any Guarantor of its Subsidiaries after the Closing Date to finance the acquisition of fixed assets, if (a) at the time of such incurrence, no Default or Unmatured Default has occurred and is continuing or would result from such incurrence, (b) such Indebtedness has a scheduled maturity and is not due on demand, (c) such Indebtedness does not exceed the lower of the fair market value or the cost of the applicable fixed assets on the date acquired, (d) such Indebtedness does not exceed $1,000,000 in the aggregate principal amount outstanding at any time, and (e) any Lien securing such Indebtedness is permitted under Section 7.3(C) (such Indebtedness being referred to herein as “Permitted Purchase Money Indebtedness”);
(viii) Indebtedness with respect of Indebtedness of to surety, appeal and performance bonds obtained by the Borrower or any Guarantor of its Subsidiaries in the ordinary course of business;
(ix) Indebtedness incurred by the Borrower or any of its Subsidiaries (whether assumed by the Borrower or such Subsidiary or issued to the seller) in any Permitted Acquisition as part of the consideration therefor, provided that such Indebtedness is permitted by this Section 7.01 unsecured and is subordinated to the Obligations on terms reasonably acceptable to the Administrative Agent (other than clause including, without limitation those with respect to amount, maturity (gwhich shall not be prior to six (6) belowmonths after the Commitment Termination Date), amortization, interest rate, premiums, fees, covenants, subordination, events of default and remedies);
(ix) Indebtedness evidenced by the Subordinated Notes and Permitted Refinancing Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, thereof;
(iixi) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed guaranties by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted to be incurred by clause any Subsidiary; and
(bxii) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is additional unsecured Indebtedness in an aggregate principal amount at any time outstanding not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;exceeding $1,000,000.
Appears in 3 contracts
Sources: Credit Agreement (Alion Science & Technology Corp), Credit Agreement (Alion Science & Technology Corp), Credit Agreement (Alion Science & Technology Corp)
Indebtedness. The Borrower shall notDirectly or indirectly, and shall not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under the Loan DocumentsObligations (including, without limitation, with respect to Incremental Term Loans and Incremental Revolving Loans);
(b) Indebtedness outstanding on of any Subsidiary owed to the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the U.S. Borrower or to any Guarantor in respect of Indebtedness other Subsidiary, or of the U.S. Borrower or owed to any Guarantor Subsidiary; provided, that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within evidenced by the limitations set forth in Sections 7.02(d)Intercompany Note, 7.02(e) or 7.02(k);
(e) renewalsand, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable if owed to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority First Priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Pledge and Security Agreement), (yii) all such Indebtedness (other than shall be unsecured and subordinated in right of payment to the Indebtedness described Payment in clauses (i)Full of the Obligations pursuant to the terms of the Intercompany Note, (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Subsidiary Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the U.S. Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of made and (iv) such Indebtedness described in clauses is permitted as an Investment under Section 6.06(d);
(c) Unsecured Indebtedness that (i) matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the maturity date of the Term Loans (it being understood that such Indebtedness may have mandatory prepayment, repurchase or redemptions provisions satisfying the requirement of clause (ii) hereof), (ii) has terms and conditions (other than interest rate, redemption premiums and subordination terms), taken as a whole, that are not materially less favorable to the U.S. Borrower than the terms and conditions customary at the time for high-yield debt securities issued in a public offering (or if applicable, high-yield subordinated debt securities so issues) and (iii) is incurred by the U.S. Borrower or a Guarantor; provided, that both immediately prior and after giving effect to the incurrence thereof, (x) no Default or Event of Default shall exist or result therefrom and (ivy) aboveas of the last day of the most recent Fiscal Quarter for which financial statements are available, the Investment U.S. Borrower shall be in compliance with a Leverage Ratio (calculated on a pro forma basis) not exceeding 4.75:1.00;
(d) Indebtedness incurred by Holdings or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including, Indebtedness consisting of the deferred purchase price of assets or property acquired in a Permitted Acquisition, “Earn Out Indebtedness”), or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of the U.S. Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Holdings or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any workers’ compensation claims, self-insurance obligations, bankers’ acceptances, bids, guaranties, performance, surety, statutory, appeal or similar obligations incurred in the intercompany loan ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the U.S. Borrower and its Subsidiaries;
(h) guaranties by the lender U.S. Borrower of Indebtedness of a Subsidiary Guarantor or guaranties by a Subsidiary Guarantor of Indebtedness of the U.S. Borrower or another Subsidiary Guarantor with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01; provided, that if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;
(i) Indebtedness described in Schedule 6.01 and any Permitted Refinancing thereof;
(j) Indebtedness of the U.S. Borrower and its Subsidiaries with respect to Capital Leases and Attributable Indebtedness in an aggregate amount not to exceed at any time $25,000,000;
(k) purchase money Indebtedness of the U.S. Borrower and its Subsidiaries in an aggregate amount not to exceed at any time $25,000,000; provided, that any such Indebtedness (i) shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness, and (ii) shall constitute not more than 80.0% of the aggregate consideration paid with respect to such asset;
(i) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Subsidiary or Indebtedness attaching to assets that are acquired by the U.S. Borrower or any of its Subsidiaries, in each case after the Restatement Date as the result of a Permitted Acquisition, provided, that (x) such Indebtedness existed at the time such Person became a Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof and (y) such Indebtedness is not guaranteed in any respect by Holdings or any of its Subsidiaries (other than by any such person that so becomes a Subsidiary) and (ii) any Permitted Refinancing thereof; provided, that (1) the direct and contingent obligors with respect to such Indebtedness are not changed and (2) such Indebtedness shall not be secured by any assets other than the assets securing the Indebtedness being renewed, extended or refinanced;
(m) Indebtedness of the type described in clause (xi) of the definition thereof incurred in the ordinary course of business; provided that in each case such Indebtedness shall not have been entered into for speculative purposes;
(n) Indebtedness incurred by the U.S. Borrower or any of its Subsidiaries owing to any insurance company in connection with the financing of any insurance premiums permitted under Section 7.03;by such insurance company in the ordinary course of business; and
(o) other Indebtedness of the U.S. Borrower and its Subsidiaries in an aggregate amount not to exceed at any time $60,000,000.
Appears in 3 contracts
Sources: Credit and Guaranty Agreement (Fmsa Holdings Inc), Credit and Guaranty Agreement (Fmsa Holdings Inc), Credit and Guaranty Agreement (Fmsa Holdings Inc)
Indebtedness. The Borrower shall not, will not and shall will not permit any of its Subsidiaries to, directly or indirectly to create, incur, assume assume, guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingexcept:
(aA) the Obligations;
(B) intercompany Indebtedness under among Borrower and its Subsidiaries; provided that if Borrower is the obligor, the obligations of Borrower shall be subordinated in right of payment to the Obligations from and after such time as any portion of the Obligations shall become due and payable (whether at stated maturity, by acceleration or otherwise);
(C) Subordinated Indebtedness evidenced by the Subordinated Loan Documents;
(bD) Indebtedness outstanding on secured by purchase money Liens, Indebtedness incurred with respect to capital leases and Indebtedness evidenced by the date hereof and listed on Schedule 7.01Additional Seller Notes, not to exceed $7,500,000 in the aggregate;
(E) Indebtedness evidenced by the Seller Notes;
(F) Term Indebtedness evidenced by the Senior Term Note plus additional term Indebtedness (the "Additional Senior Term Loan") not to exceed $5,000,000 provided (1) at the time of incurrence thereof, no Default or Event of Default shall exist and be continuing or shall arise from the incurrence thereof; and (2) the Additional Senior Term Loan is (a) provided by SBA; (b) on substantially the same terms and conditions as the "Conditional Senior Term Loan" (as defined in the Senior Term Loan Agreement); and (c) Guaranty Obligations incurred by is subject to the Borrower or any Guarantor in respect of Indebtedness terms and conditions of the Intercreditor Agreement. Borrower or shall not be permitted to incur any Guarantor that is permitted revolving loan Indebtedness pursuant to the Senior Term Loan Documents; and
(G) Subordinated Indebtedness incurred to refinance Subordinated Indebtedness held by this Section 7.01 SBA provided all of the following conditions are satisfied (other than clause (g) below);"Refinanced Subordinated Indebtedness"):
(i) The Subordinated Indebtedness in respect of Capital Lease Obligations is on terms and purchase money obligations for tangible property, conditions reasonably acceptable to ▇▇▇▇▇▇;
(ii) the Person providing such Subordinated Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and is reasonably acceptable to ▇▇▇▇▇▇;
(iii) other secured the Subordinated Indebtedness (including secured Indebtedness incurred or assumed by is subordinated to the Borrower Obligations, the Senior Term Loan and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 Additional Senior Term Loan on terms and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)conditions acceptable to ▇▇▇▇▇▇;
(eiv) renewals, extensions, refinancings ▇▇▇▇▇▇ and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than SBA shall have entered into amendments to the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is Intercreditor Agreement on terms that in the aggregate are not materially less favorable and conditions acceptable to the Borrower ▇▇▇▇▇▇ including, without limitation, amendments to or such Subsidiary, including as elimination of ▇▇▇▇▇▇ standstill provisions and amendments to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;payment blockage provisions; and
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to at the Spinofftime of such refinancing, from MII no Default or any Affiliate Event of MII (other than the Borrower Default shall exist and be continuing or arise as a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;thereof.
Appears in 3 contracts
Sources: Credit Agreement (Aki Holding Corp), Credit Agreement (Aki Holding Corp), Credit Agreement (Aki Inc)
Indebtedness. The Borrower shall and each other Obligor will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly create, incurincur or assume, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness Obligations of the Obligors under the Loan Documents;
(b) Indebtedness outstanding existing on the date hereof and listed on Schedule 7.01set forth in Section 6.01 of the Borrower Disclosure Letter and any refinancing, refundings, renewals or extensions thereof;
(c) Guaranty Obligations Capital Lease Obligations, purchase money Indebtedness and loans incurred to acquire or improve equipment or other physical plant or real property of the Parent or any Restricted Subsidiary; provided that (i) such Indebtedness does not exceed the purchase price plus expenses of the asset or assets acquired (or the improvement thereon, as applicable) and (ii) any Lien that secures such Indebtedness does not apply to any other property or assets of the Parent or its Restricted Subsidiaries; provided, further the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed, at any time outstanding, the greater of (x) $150,000,000 or (y) the amount of such Indebtedness and purchase money Indebtedness, if, immediately after giving effect thereto, the Total Net Leverage Ratio determined on a Pro Forma Basis, is less than 3.00:1.00.
(d) Indebtedness of (i) any Restricted Subsidiary to any Obligor or to any other Restricted Subsidiary or (ii) any Obligor to any other Obligor or any other Restricted Subsidiary; provided that (i) except during a Collateral Release Period, all such Indebtedness shall be evidenced by the Intercompany Note, and, if owed to an Obligor, shall be subject to a Lien under the Collateral Documents, (ii) all such Indebtedness shall be unsecured and, if owed by an Obligor, subordinated in right of payment to payment in full of the Obligations, as set forth in the Intercompany Note, and (iii) such Indebtedness is permitted as an Investment under Section 6.06(c);
(e) Indebtedness incurred by the Borrower or any Guarantor Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including, Indebtedness consisting of the deferred purchase price of property acquired in respect an Acquisition permitted hereunder), or from guaranties or letters of Indebtedness credit, surety bonds or performance bonds securing the performance of the Borrower or any Guarantor that is such Restricted Subsidiary pursuant to such agreements, in connection with Acquisitions permitted by this Section 7.01 hereunder or permitted dispositions of any business or assets (other than clause including stock of a Subsidiary);
(f) Indebtedness in respect of any Hedging Transaction entered into for the purpose of hedging risks associated with the operations of the Obligors and their respective Subsidiaries and not for speculative purposes;
(g) belowIndebtedness of the Obligors and their respective Restricted Subsidiaries which may be deemed to exist pursuant to any Guarantees, performance, statutory or similar obligations (including in connection with workers’ compensation) or obligations in respect of letters of credit, surety bonds, bank guarantees or similar instruments related thereto incurred in the ordinary course of business, or pursuant to any appeal obligation, appeal bond or letter of credit in respect of judgments that do not constitute an Event of Default under clause (j) of Section 9.01;
(h) Guarantees by the Parent of Indebtedness of a Restricted Subsidiary or Guarantees by a Restricted Subsidiary of Indebtedness of the Parent or any Restricted Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01; provided, that (i) if the Indebtedness that is being guaranteed is unsecured and/or subordinated to the Obligations, the Guarantee shall also be unsecured and/or subordinated to the Obligations and (ii) in the case of Guarantees by an Obligor of the obligations of a Restricted Subsidiary that is not a Guarantor, such Guarantees shall be permitted by Section 6.06(c);
(i) Indebtedness 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 date hereof, and refinancing of such Indebtedness in respect thereof; provided that (i) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) and is not created in contemplation of Capital Lease Obligations or in connection with such Person becoming a Subsidiary (or such merger or consolidation) and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such outstanding Indebtedness permitted by this subsection clause (di) shall not exceed $25,000,000 at any time;
(j) other Indebtedness of the Borrower and the other Restricted Subsidiaries not otherwise permitted by this Section 6.01 so long as, immediately after giving effect thereto, the Total Net Leverage Ratio determined on a Pro Forma Basis, would not exceed 2.50:1.00;
(i) Indebtedness owing to insurance companies to finance insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case under clause (i) or (ii), in the ordinary course of business;
(l) Indebtedness under or in connection with (i) any commercial credit card program, (ii) purchasing or “p-card” program or (iii) similar programs, arising in the ordinary course of business;
(m) Indebtedness consisting of incentive, non-compete, consulting, deferred compensation or other similar arrangements entered into in the ordinary course of business with an officer or employee of any Obligor or its Subsidiaries;
(n) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(o) Indebtedness in respect of letters of credit, bank guarantees or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business and consistent with past practice;
(p) other unsecured Indebtedness not permitted by the foregoing in an aggregate principal amount outstanding at any one time outstanding shall not exceed exceeding $200,000,000 and the Liens securing such 20,000,000;
(q) Indebtedness shall be within the limitations set forth in respect of letters of credit or bankers’ acceptances supporting facility leases in an aggregate principal or face amount not exceeding $5,000,000 at any time outstanding;
(r) Refinancing Indebtedness in respect of Sections 7.02(d6.01(b), 7.02(e6.01(c), 6.01(h), 6.01(j), 6.01(p) or 7.02(kand 6.01(t);
(es) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is Disqualified Equity Interests in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;exceeding $5,000,000; and
(ft) Indebtedness arising from intercompany loans incurred by the Parent or its Restricted Subsidiary to acquire, construct or improve the New Fulfillment Center; provided that (i) from such Indebtedness does not exceed the Borrower to any Guarantor; purchase price of the New Fulfillment Center (or improvement thereon, as applicable) plus expenses, and (ii) from any Subsidiary Lien that secures such Indebtedness does not apply to property or assets of the Borrower to the Borrower Parent or any Guarantor; (iii) from any Subsidiary its Restricted Subsidiaries other than assets that are or will be a part of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is madeNew Fulfillment Center; provided, further that, in that the case aggregate principal amount of Indebtedness described in clauses permitted by this clause (i)t) shall not exceed, (ii)at any time outstanding, (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;$50,000,000.
Appears in 3 contracts
Sources: Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.)
Indebtedness. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the following:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof Closing Date and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 100,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such SubsidiarySubsidiary than, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from among the Borrower to any Guarantorand its Subsidiaries; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, provided that (x) all if any such Indebtedness (other than owing to a Loan Party that is a party to the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be Collateral Agreement is evidenced by a promissory notes and all note, such notes note shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) owed by a Loan Party to a Subsidiary that is not a Loan Party shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity DateDebt, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further further, that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) aboveeach case, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;
(g) Non-Recourse Indebtedness;
(h) Indebtedness under or in respect of Swap Contracts that are not speculative in nature;
(i) unsecured Indebtedness of any Subsidiary (other than a Guarantor) in aggregate principal amount not to exceed $100,000,000 at any time outstanding;
(j) Indebtedness in respect of any insurance premium financing for insurance being acquired by the Borrower or any Subsidiary under customary terms and conditions and not in connection with the borrowing of money;
(k) Indebtedness under or in respect of Cash Management Agreements;
(l) Indebtedness in respect of matured or drawn Performance Guarantees in the nature of letters of credit, bankers acceptances, bank guarantees or other similar obligations, but only so long as such Indebtedness is reimbursed or extinguished within 5 Business Days of being matured or drawn;
(m) Indebtedness in respect of matured or drawn Performance Guarantees in the nature of surety bonds, performance bonds and other similar obligations, in each case that would appear as indebtedness on a consolidated balance sheet of the Borrower prepared in accordance with GAAP, in an aggregate amount not to exceed $150,000,000 at any time outstanding;
(n) Cash Collateralized Letters of Credit; and
(o) unsecured Indebtedness of any Loan Party so long as at the time of incurrence of such Indebtedness (i) no Default has occurred and is continuing or would result therefrom and (ii) the Borrower and its Subsidiaries are in pro forma compliance with the financial covenants set forth in Section 7.16 immediately before and after giving effect to the incurrence of such Indebtedness.
Appears in 3 contracts
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.), Credit Agreement (Babcock & Wilcox Enterprises, Inc.), Credit Agreement (Babcock & Wilcox Co)
Indebtedness. The Borrower (a) No Credit Party shall not, and shall not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or otherwise become permit to exist any Indebtedness, except (without duplication) (i) Indebtedness secured by purchase money security interests and Capital Leases permitted in clause (c) or (d) of Section 6.7, (ii) the Loans and the other Obligations, (iii) deferred taxes, to the extent permitted under applicable law, (iv) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain directly unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or indirectly liable with respect amendments or modifications thereto that do not have the effect of increasing the
(A) each Borrower shall have executed and delivered to each other Borrower, on the Closing Date, a demand note (collectively, the “Intercompany Notes”) to evidence any such intercompany Indebtedness owing at any time by such Borrower to such other Borrowers which Intercompany Notes shall be in form and substance reasonably satisfactory to Agent and shall be pledged and delivered to Agent pursuant to the applicable Pledge Agreement or Security Agreement as additional collateral security for the Obligations; (B) each Borrower shall record all intercompany transactions on its books and records in a manner reasonably satisfactory to Agent; (C) the obligations of each Borrower under any such Intercompany Notes shall be subordinated to the Obligations of such Borrower hereunder in a manner reasonably satisfactory to Agent; (D) at the time any such intercompany loan or advance is made by any Borrower to any other Borrower and after giving effect thereto, each such Borrower shall be Solvent; (E) no Default or Event of Default would occur and be continuing after giving effect to any such proposed intercompany loan; and (F) in the case of any intercompany Indebtedness, (X) the Borrower advancing such funds shall have Borrowing Availability under its separate Borrowing Base of not less than $1,00 after giving effect to such intercompany loan, or (Y) the intercompany Indebtedness except for shall be a Great Northern Advance, (ix) Indebtedness owing to Affiliates and holders of Stock of such Credit Party that constitutes Subordinated Debt, is unsecured, interest on which is not payable in cash until after the following:
Termination Date and as to which no principal is payable until after the Termination Date, (ax) Indebtedness under Hedging Agreements to the Loan Documents;extent permitted under Section 6.17 and (xi) unsecured Indebtedness not otherwise referred to in this Section 6.3 not exceeding $1,000,000 in aggregate principal amount outstanding at any time for all Credit Parties.
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower No Credit Party shall, directly or indirectly, voluntarily purchase, redeem, defease or prepay any Guarantor principal of, premium, if any, interest or other amount payable in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (Indebtedness, other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible propertythe Obligations, (ii) Indebtedness secured by a Permitted Encumbrance if the asset securing such Indebtedness has been sold or otherwise disposed of in respect of sale and leaseback transactions permitted by Section 7.13 accordance with Sections 6.8(b) or (c) and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (dSection 6.3(a)(v) at upon any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth refinancing thereof in Sections 7.02(daccordance with Section 6.3(a)(v), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;.
Appears in 3 contracts
Sources: Loan Agreement (H&E Equipment Services, Inc.), Loan Agreement (H&E Equipment Services, Inc.), Loan Agreement (H&E Equipment Services, Inc.)
Indebtedness. The Borrower shall will not, and shall will not permit or cause any of its Subsidiaries to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for Indebtedness, without the following:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness consent of the Borrower or any Guarantor that is permitted by this Section 7.01 (Required Lenders, other than clause (g) below);without duplication):
(i) Indebtedness of the Credit Parties in respect favor of Capital Lease Obligations the Administrative Agent and purchase money obligations for tangible property, the Lenders incurred under this Agreement and the other Credit Documents;
(ii) Indebtedness of the Borrower and its Subsidiaries consisting of seller notes (including Convertible Seller Notes and Contingent Purchase Price Obligations) in connection with (x) Permitted Acquisitions and (y) acquisitions consummated prior to the Closing Date, and including, without duplication, any standby letter of credit obligations of the Borrower and its Subsidiaries in respect of letters of credit issued on behalf of the Borrower and its Subsidiaries to provide support for such seller notes, provided that Borrower shall promptly deliver to the Administrative Agent an updated schedule of such Indebtedness upon the reasonable request of the Administrative Agent;
(iii) Indebtedness of the Borrower and its Subsidiaries in favor of California First Leasing Corporation with respect to the lease of, or sale and leaseback transactions permitted by Section 7.13 with respect to, certain equipment, provided that all such Indebtedness does not exceed $500,000;
(iv) Indebtedness of the Borrower and its Subsidiaries under Hedge Agreements entered into in connection with this Agreement or in the ordinary course of business to manage existing or anticipated interest rate or foreign currency risks and not for speculative purposes;
(iiiv) purchase money Indebtedness of the Borrower and its Subsidiaries incurred solely to finance the acquisition, construction or improvement of any equipment, real property or other secured Indebtedness fixed assets in the ordinary course of business (including secured Indebtedness incurred or assumed or acquired by the Borrower and its Subsidiaries in connection with a Permitted AcquisitionAcquisition or other transaction permitted under this Agreement); provided, however(but excluding Capital Lease Obligations), and any renewals, replacements, refinancings or extensions thereof, provided that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 2,500,000 in aggregate principal amount outstanding at any one time;
(vi) Capital Lease Obligations (including resulting from sale-leaseback transactions and other lease programs with respect to trucks or other equipment of the Liens securing Borrower and its Subsidiaries) in an amount not to exceed $10,000,000 outstanding at any time; provided that following a Specified Availability Increase, such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)not exceed $20,000,000;
(evii) renewals, extensions, refinancings unsecured loans and refundings of Indebtedness permitted advances (A) by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from Subsidiary to any Subsidiary Guarantor, (B) by any Subsidiary to the Borrower, provided in each case that any such loan or advance is subordinated in right and time of payment to the Borrower that Obligations and is not evidenced by a Loan Party promissory note, in form and substance reasonably satisfactory to any other Subsidiary the Administrative Agent and pledged to the Administrative Agent pursuant to the Security Documents;
(viii) Indebtedness consisting of the Borrower that is not a Loan Party; (iv) from Guaranty Obligations of the Borrower or any Guarantor to any Subsidiary of its Subsidiaries incurred in the Borrower that is not a Guarantor; or (v) prior to ordinary course of business for the Spinoff, from MII or any Affiliate benefit of MII (other than the Borrower or a Subsidiary Guarantor, provided that the primary obligation being guaranteed is permitted by this Agreement;
(ix) Guaranty Obligations of customers of the BorrowerBorrower and its Subsidiaries outside of the ordinary course of business in connection with its customer financing program, the underlying obligations of which do not exceed $2,500,000 outstanding at any time;
(x) notwithstanding subsection (v) above, purchase money Indebtedness of the Borrower or its subsidiaries incurred in order to continue to develop its technology platform, in an amount not to exceed $2,500,000;
(xi) Indebtedness of the Borrower and its Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five Business Days of its incurrence;
(xii) Indebtedness existing as of the date hereof to Royal Palm Mortgage Group LLC pursuant to the promissory note executed by ▇▇▇▇▇▇▇ International Inc. dated as of August 9, 2010;
(xiii) Indebtedness that may be deemed to exist pursuant to any performance bond, surety, statutory appeal or similar obligation entered into or incurred by the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case ordinary course of business; and
(xiv) other general unsecured Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment not to exceed $500,000 in the intercompany loan by the lender thereof is permitted under Section 7.03;aggregate outstanding at any time.
Appears in 2 contracts
Sources: Credit Agreement (Swisher Hygiene Inc.), Credit Agreement (Swisher Hygiene Inc.)
Indebtedness. The None of the Borrower shall not, and shall not permit or any of its the Subsidiaries to, directly or indirectly will create, incur, assume or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness except for the followingIndebtedness, other than:
(a) Indebtedness under in respect of the Loan DocumentsObligations;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower in connection with Permitted Acquisitions or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions Investment permitted by Section 7.13 and (iii) other secured Indebtedness 8.5 (including secured existing Indebtedness incurred or assumed by the Borrower and its Subsidiaries of a Person acquired in connection with a Permitted AcquisitionAcquisition or any such permitted Investment, provided such Indebtedness was not incurred in anticipation of such acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) Indebtedness, at any one time outstanding outstanding, shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e)75,000,000; provided, howeverfurther, that the obligors in respect of any such Indebtedness assumed in connection with a Permitted Acquisition or other Investment permitted by Section 8.5 shall be solely the entities acquired in such Permitted Acquisition or such permitted Investment; provided, further, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater Indebtedness incurred (rather than the principal amount of (plus reasonable fees, expenses and any premium incurred assumed) in connection with Permitted Acquisitions or other Investment permitted by Section 8.5 shall be solely Indebtedness of the renewal, extension, refinancing Loan Parties (including any entities that will become Loan Parties in connection with such Permitted Acquisition or refunding of such Indebtedness), permitted Investment) and is on terms that in the aggregate are not materially less favorable shall be unsecured and subordinated to the Borrower or such Subsidiary, including as Obligations in a manner satisfactory to weighted average maturity, than Administrative Agent and the Indebtedness being renewed, extended, refinanced or refundedRequired Lenders;
(fc) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary existing as of the Borrower to the Closing Date which is identified in Schedule 8.2(c) and Permitted Refinancings thereof;
(d) Indebtedness incurred by Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries arising from agreements providing for whose benefit indemnification or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of Borrower or any such payment is made; providedSubsidiary pursuant to such agreements and Indebtedness which may be deemed to exist pursuant to any guaranties, further thatperformance, surety, statutory, appeal or similar obligations incurred in the case ordinary course of business and Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment constituting guaranties in the intercompany loan by ordinary course of business of the lender thereof is permitted under Section 7.03obligations of suppliers, customers, franchisees and licensees of Borrower and its Subsidiaries;
Appears in 2 contracts
Sources: Credit Agreement (Caris Life Sciences, Inc.), Credit Agreement (Caris Life Sciences, Inc.)
Indebtedness. The Borrower shall notNo Credit Agreement Party will, and shall not nor will permit any of its Subsidiaries to, directly or indirectly contract, create, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness incurred pursuant to this Agreement and the other Credit Documents;
(ii) Scheduled Existing Indebtedness outstanding on the Initial Borrowing Date and listed on Schedule IV, without giving effect to any subsequent extension, renewal or refinancing thereof, except that Scheduled Existing Indebtedness may be refinanced through one or more issuances of Permitted Refinancing Indebtedness in accordance with Section 9.04(vii) below;
(iii) Indebtedness of the Borrowers under Interest Rate Protection Agreements entered into to protect them against fluctuations in interest rates in respect of Capital Indebtedness otherwise permitted under this Agreement, so long as the entering into of such Interest Rate Protection Agreements are bona fide hedging activities and are not for speculative purposes;
(iv) Capitalized Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the U.S. Borrower and its Subsidiaries representing purchase money Indebtedness secured by Liens permitted pursuant to Section 9.03(xi), provided that (i) all such Capitalized Lease Obligations are permitted under Section 9.11 and (ii) the sum of (x) the aggregate Capitalized Lease Obligations outstanding at any time plus (y) the aggregate principal amount of such purchase money Indebtedness outstanding at any time shall not exceed $25,000,000;
(v) intercompany Indebtedness of the U.S. Borrower and its Subsidiaries to the extent permitted by Section 9.05(vi) and (xvii);
(vi) Indebtedness of a Subsidiary of the U.S. Borrower acquired pursuant to a Permitted Acquisition (or Indebtedness assumed at the time of a Permitted Acquisition of an asset securing such Indebtedness), provided that (x) such Indebtedness was not incurred in connection with a with, or in anticipation or contemplation of, such Permitted Acquisition); provided, however, that Acquisition and (y) the aggregate principal amount of all such Indebtedness permitted by outstanding pursuant to this subsection clause (dvi) at any one time (such Indebtedness described above in this Section 9.04(vi) being called "Permitted Acquired Debt"), when added to the aggregate principal amount of Permitted Refinancing Indebtedness outstanding pursuant to Section 9.04(vii) at any time (except to the extent incurred to refinance Scheduled Existing Indebtedness, Indebtedness under the HQ Lease Agreements as described in Section 9.04(xxii) below and successive refinancings thereof), shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)50,000,000;
(evii) renewalsPermitted Refinancing Indebtedness, extensions, refinancings so long as (x) no Specified Default or Event of Default is in existence at the time of the incurrence of such Permitted Refinancing Indebtedness and refundings immediately after giving effect thereto and (y) the aggregate principal amount of Permitted Refinancing Indebtedness permitted by clause (b) or (d) above or outstanding pursuant to this clause (evii) at any time (except to the extent incurred to refinance Scheduled Existing Indebtedness, Indebtedness under the HQ Lease Agreements as described in Section 9.04(xxii) below and successive refinancings thereof); provided, however, that any such renewal, extension, refinancing or refunding is in an when added to the aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien Permitted Acquired Debt outstanding pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (ySection 9.04(vi) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) onlyat any time, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03exceed $50,000,000;
Appears in 2 contracts
Sources: Credit Agreement (Dole Food Company Inc), Credit Agreement (Dole Food Company Inc)
Indebtedness. The Borrower shall notIncur, and shall not create, assume or permit any of its Subsidiaries toto exist, directly or indirectly createindirectly, incurany Indebtedness, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the following:except
(a) Indebtedness incurred under this Agreement and the other Loan Documents;
(b) (i) Indebtedness outstanding on the date hereof Closing Date and listed on Schedule 7.016.01(b) and any Permitted Refinancing (other than Existing Notes) thereof, (ii) prior to the Refinancing, Indebtedness under the Existing Notes and (iii) (A) so long as the Refinancing has occurred, Indebtedness (x) pursuant to the Term Loan Credit Agreement (including any “Incremental Loans” permitted under Section 2.17 of the Term Loan Credit Agreement as in effect on the Closing Date) and (y) consisting of “Incremental Equivalent Debt” permitted under Section 2.17(g) of the Term Loan Credit Agreement as in effect on the Closing Date in an aggregate principal amount under the foregoing sub-clauses (x) and (y) not to exceed the Permitted Term Loan Debt Cap and (B) any Permitted Refinancing or any “Refinancing Equivalent Debt” (as defined in the Term Loan Credit Agreement as in effect on the Closing Date), in each case, in respect of Indebtedness referred to in this clause (b)(iii) (the Indebtedness described in this clause (b)(iii), collectively, the “Permitted Term Loan Debt”);
(c) Guaranty Indebtedness under Hedging Obligations with respect to interest rates, foreign currency exchange rates or commodity prices, in each case not entered into for speculative purposes; provided that if such Hedging Obligations relate to interest rates, (i) such Hedging Obligations relate to payment obligations on Indebtedness otherwise permitted to be incurred by the Loan Documents and (ii) the notional principal amount of such Hedging Obligations at the time incurred does not exceed the principal amount of the Indebtedness to which such Hedging Obligations relate;
(d) Indebtedness permitted by Section 6.04(e);
(e) Indebtedness in respect of Purchase Money Obligations and Capital Lease Obligations in an aggregate amount at any time outstanding not to exceed the greater of $10,000,000 and 3.60% of Total Assets (in each case determined at the time of incurrence or assumption) and any Permitted Refinancing thereof;
(f) Indebtedness incurred by Subsidiaries that are not Guarantors in an aggregate amount at any time outstanding not to exceed the greater of $5,000,000 and 1.80% of Total Assets (in each case determined at the time of incurrence or assumption) it being understood that any Indebtedness incurred pursuant to this Section 6.01(f) shall cease to be deemed incurred or outstanding for purposes of this Section 6.01(f) but shall be deemed incurred for the purposes of this covenant from and after the first date on which the Borrower or such Subsidiary could have incurred such Indebtedness under Section 6.01(o) without reliance on this Section 6.01(f);
(g) Indebtedness in respect of bid, performance or surety bonds, workers’ compensation claims, self-insurance obligations and bankers acceptances issued for the account of any Guarantor Company in the ordinary course of business, including guarantees or obligations of any Company with respect to letters of credit supporting such bid, performance or surety bonds, workers’ compensation claims, self-insurance obligations and bankers acceptances (in each case other than for an obligation for money borrowed);
(h) Contingent Obligations of any Company in respect of Indebtedness of otherwise permitted under this Section 6.01; provided that, to the Borrower or extent any Guarantor that such Contingent Obligation constitutes an Investment, such Investment is permitted by this under Section 7.01 (other than clause (g) below)6.04;
(i) Attributable Indebtedness resulting from Sale and Leaseback Transactions incurred by any Loan Party in respect an aggregate amount at any time outstanding not to exceed the greater of Capital Lease Obligations $5,000,000 and purchase money obligations for tangible property, 1.80% of Total Assets (iiin each case determined at the time of incurrence or assumption) and any Permitted Refinancing thereof;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in respect the case of sale and leaseback transactions permitted by Section 7.13 and (iiidaylight overdrafts) other secured Indebtedness (including secured Indebtedness incurred or assumed by drawn against insufficient funds in the Borrower and its Subsidiaries in connection with a Permitted Acquisition)ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(l) [Reserved];
(m) Indebtedness of any Loan Party under any Treasury Services Agreement;
(n) other Indebtedness of any Company in an aggregate amount not to exceed the greater of $25,000,000 and 9.10% of Total Assets at any time outstanding (it being understood that any Indebtedness incurred pursuant to this Section 6.01(n) shall cease to be deemed incurred or outstanding for purposes of this Section 6.01(n) but shall be deemed incurred for the purposes of this covenant from and after the first date on which such Company could have incurred such Indebtedness under Section 6.01(o) without reliance on this Section 6.01(n));
(o) other Indebtedness of any Company so long as (w) no Default or Event of Default shall exist or shall have occurred and be continuing or would result therefrom, (x) the Total Net Leverage Ratio (calculated on a Pro Forma Basis) does not exceed the Total Net Leverage Ratio as of the Closing Date, such Indebtedness shall not mature or have scheduled principal payments (provided that such Indebtedness may have scheduled principal payments of not greater than 1.00% of the original principal thereof per annum), and such Indebtedness shall not require any mandatory prepayment or redemption (other than customary “AHYDO catch-up payments,” offers to repurchase and prepayment events upon a change of control, asset disposition and casualties, from excess cash flow and a customary acceleration right after an event of default), earlier than the date that is ninety-one (91) days after the Revolving Maturity Date, (y) in the case of Non-Loan Parties, such Indebtedness at any time outstanding shall not exceed the greater of $5,000,000 and 1.80% of Total Assets (in each case determined at the time of incurrence or assumption) and (z) if such Indebtedness is secured, any Liens in respect of such Indebtedness are permitted by Section 6.02 and any Permitted Refinancing thereof;
(p) (i)(A) Indebtedness of any Company assumed (including Acquired Indebtedness) in connection with any Permitted Acquisition and (B) Indebtedness of any Company incurred to finance a Permitted Acquisition; provided that, (w) in the case of clause (A) only, such Indebtedness is not incurred in contemplation of such Permitted Acquisition, (x) no Event of Default shall exist or shall have occurred and be continuing or would result therefrom after giving Pro Forma Effect to the assumption or insurance of such Indebtedness and such Permitted Acquisition, (y) after giving Pro Forma Effect to the assumption or insurance of such Indebtedness, the Fixed Charge Coverage Ratio is at least 1.0 to 1.0 and (z) in the case of clause (B) only, such Indebtedness shall not mature or have scheduled principal payments (provided that such Indebtedness may have scheduled principal payments of not greater than 1.00% of the original principal thereof per annum), and such Indebtedness shall not require any mandatory prepayment or redemption (other than customary “AHYDO catch-up payments,” offers to repurchase and prepayment events upon a change of control, asset disposition and casualties, from excess cash flow and a customary acceleration right after an event of default), earlier than the date that is ninety-one (91) days after the Revolving Maturity Date, and (ii) any Permitted Refinancing of any such Indebtedness; provided, that the aggregate principal amount of Indebtedness assumed or incurred pursuant to this Section 6.01(p) by all such Indebtedness permitted by this subsection (d) at any one time outstanding Non-Loan Parties shall not exceed the greater of $200,000,000 7,500,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)2.70% of Total Assets outstanding at any time;
(eq) renewalsIndebtedness representing deferred compensation to employees of Holdings (and any direct or indirect parent thereof) or any of its Subsidiaries incurred in the ordinary course of business;
(r) Indebtedness to current or former officers, extensionsmanagers, refinancings consultants, directors and refundings employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Indebtedness Equity Interests or other equity-based awards of the Borrower or any direct or indirect parent of the Borrower permitted by clause Section 6.07;
(bs) Indebtedness incurred by any Company in any Investment expressly permitted hereunder or any Asset Sale, in each case, constituting indemnification obligations or obligations in respect of purchase price (including earnouts) or other similar adjustments;
(dt) above Indebtedness consisting of obligations of any Company under deferred compensation or this clause (e); provided, however, that any other similar arrangements incurred by such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred Person in connection with the renewal, extension, refinancing or refunding of such Indebtedness)Transactions, and is on terms that Permitted Acquisitions or any other Investment expressly permitted under this Agreement; and
(u) Indebtedness consisting of (a) the financing of insurance premiums or (b) take-or-pay obligations contained in supply arrangements, in each case, incurred in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary ordinary course of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;business.
Appears in 2 contracts
Sources: Credit Agreement (Norcraft Companies, Inc.), Credit Agreement (Norcraft Companies Lp)
Indebtedness. (a) The Borrower shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly indirectly, create, incur, assume issue, assume, guarantee or otherwise become or remain directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness except (including Acquired Debt), and the Borrower will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Borrower may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Debt) or issue preferred stock, if the Fixed Charge Coverage Ratio for the following:
Borrower’s most recently ended Calculation Period immediately preceding the date on which such Indebtedness is incurred or such Disqualified Stock or preferred stock is issued would have been at least 2.00:1.00, determined on a pro forma basis (aincluding a pro forma application of the net proceeds therefrom), as if such Indebtedness (including Acquired Debt) Indebtedness under had been incurred or Disqualified Stock or the Loan Documents;preferred stock had been issued, as the case may be, at the beginning of such Calculation Period.
(b) The provisions of Section 10.04(a) will not prohibit the incurrence of any of the following items of Indebtedness outstanding on the date hereof and listed on Schedule 7.01;(collectively, “Permitted Debt”):
(ci) Guaranty Obligations incurred (A) the incurrence of Indebtedness and Letters of Credit hereunder and under the other Credit Documents (other than any Indebtedness and Letters of Credit arising from Commitments pursuant to and in accordance with Section 2.15) and (B) the incurrence by the Borrower and/or any Subsidiary Guarantor of Indebtedness and letters of credit under other Credit Facilities and Indebtedness and Letters of Credit arising from Commitments pursuant to and in accordance with Section 2.15 in an aggregate principal amount at any one time outstanding (as measured on each date of an incurrence pursuant to this clause (i)(B)) under this clause (i)(B) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Borrower and its Restricted Subsidiaries thereunder) not to exceed the Maximum Incremental Facilities Amount, less the aggregate amount of all repayments, optional or mandatory, of the principal of any term Indebtedness under a Credit Facility that have been made by the Borrower or any of its Restricted Subsidiaries since the Closing Date with the Net Sale Proceeds (other than Excluded Proceeds) and the Net Recovery Event Proceeds, and less, without duplication, the aggregate amount of all repayments or commitment reductions with respect to any revolving credit borrowings under a Credit Facility that have been made by the Borrower or any of its Restricted Subsidiaries since the Closing Date as a result of the application of the Net Sale Proceeds or the Net Recovery Event Proceeds, as applicable, in each case in accordance with Section 10.08;
(ii) the incurrence by the Borrower and its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Borrower and the Subsidiary Guarantors of Indebtedness represented by any Credit Agreement Refinancing Indebtedness, including without limitation pursuant to any Tranche B-1 Debt Offering;
(iv) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement or lease of property (real or personal), plant or equipment used or useful in the business of the Borrower or any of its Restricted Subsidiaries or incurred within 270 days thereafter, in an aggregate principal amount at any time outstanding (as measured on the date of each incurrence of Indebtedness pursuant to this clause (iv), but at that time including for purposes of calculation any then outstanding Permitted Refinancing Indebtedness incurred to refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (iv)), not to exceed 5.0% of Consolidated Total Assets;
(v) the incurrence by the Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease or discharge Indebtedness (other than intercompany Indebtedness) that was permitted by this Agreement to be incurred under Section 10.04(a) or Sections 10.04(b)(ii), (iii), (iv), (v), (xv), (xvi), (xvii), (xviii), (xix) and (xxiii);
(vi) the incurrence by the Borrower or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Borrower and any of its Restricted Subsidiaries; provided, however, that:
(A) if the Borrower or any Subsidiary Guarantor is the obligor on such Indebtedness and the payee is not the Borrower or a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in respect full in cash of the Obligations; and
(B) (x) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Restricted Subsidiary of the Borrower and (y) any sale or other transfer of any such Indebtedness to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) the issuance by any of the Borrower’s Restricted Subsidiaries to the Borrower or to any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that:
(A) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Borrower or a Restricted Subsidiary; and
(B) any sale or other transfer of any such preferred stock to a Person that is not either the Borrower or a Restricted Subsidiary, will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (vii);
(viii) the incurrence by the Borrower or any of its Restricted Subsidiaries of Hedging Obligations (including any upfront payments paid in connection therewith);
(ix) the guarantee by (A) the Borrower or any of the Subsidiary Guarantors of Indebtedness of the Borrower or any a Subsidiary Guarantor that is was permitted to be incurred by another provision of this Section 7.01 10.04; (B) any of the Excluded Project Subsidiaries of Indebtedness of any other than clause Excluded Project Subsidiary; and (gC) below)any of the Excluded Foreign Subsidiaries of Indebtedness of any other Excluded Foreign Subsidiary; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Obligations, then the guarantee shall be subordinated to the same extent as the Indebtedness guaranteed;
(ix) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness arising from customary cash management services, netting arrangements, automated clearing house transfers, or the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) inadvertently drawn against insufficient funds in the ordinary course of business, so long as such Indebtedness is covered within seven (7) Business Days;
(xi) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible (x) self-insurance obligations, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance, unemployment insurance or other social security legislation or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims and (iiy) Indebtedness warehouse receipts or similar instruments, performance and surety bonds provided by the Borrower or a Restricted Subsidiary in the ordinary course of business or in connection with judgments that do not result in an Event of Default and obligations in respect of sale performance and leaseback transactions permitted by Section 7.13 completion guarantees and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed similar obligations provided by the Borrower and or any of its Subsidiaries Restricted Subsidiaries; in each case created or issued in a manner consistent with past practice;
(xii) the incurrence of Non-Recourse Debt by any Excluded Project Subsidiary;
(xiii) the incurrence of Indebtedness that may be deemed to arise as a result of agreements of the Borrower or any Restricted Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or any similar obligations, in each case, incurred in connection with the disposition of any business, assets or Equity Interests of any Subsidiary; provided that the aggregate maximum liability associated with such provisions may not exceed the gross proceeds (including non-cash proceeds) of such disposition;
(xiv) the incurrence by the Borrower or any Restricted Subsidiary of one or more letter of credit facilities in an aggregate principal amount at any time outstanding not to exceed $200,000,000, for which the only collateral is cash and there is no other credit support; provided that on each date the Borrower or any such Restricted Subsidiary enters into any such letter of credit facility (except to the extent replacing one or more previously outstanding letter of credit facilities established pursuant to this clause (xiv)), the Revolving Loan Commitments shall be automatically and permanently reduced on a Permitted Acquisition)dollar-for-dollar basis by the amount of such letter of credit facility;
(xv) Indebtedness, Disqualified Stock or preferred stock of Persons or assets that are acquired by the Borrower or any Restricted Subsidiary of the Borrower or merged into the Borrower or a Restricted Subsidiary of the Borrower in accordance with the terms of this Agreement; provided that such Indebtedness, Disqualified Stock or preferred stock is not incurred in contemplation of, or to finance, such acquisition or merger; provided, howeverfurther, that after giving effect to such acquisition or merger, either:
(A) the Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 10.04(a); or
(B) the Fixed Charge Coverage Ratio would be no less than immediately prior to such acquisition or merger;
(xvi) Environmental CapEx Debt; provided that prior to the incurrence of any Environmental CapEx Debt, the Borrower shall deliver to the Administrative Agent an Officer’s Certificate designating such Indebtedness as Environmental CapEx Debt;
(xvii) Indebtedness incurred to finance Necessary Capital Expenditures; provided that prior to the incurrence of any Indebtedness to finance Necessary Capital Expenditures, the Borrower shall deliver to the Administrative Agent an Officer’s Certificate designating such Indebtedness as Necessary CapEx Debt;
(xviii) Indebtedness of the Borrower or any Restricted Subsidiary consisting of (A) the financing of insurance premiums and (B) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(xix) the incurrence by the Borrower or any of its Restricted Subsidiaries of Contribution Indebtedness;
(xx) the incurrence by the Borrower and/or any of its Restricted Subsidiaries of Indebtedness that constitutes a Permitted Tax Lease;
(xxi) Indebtedness of Foreign Subsidiaries of the Borrower under lines of credit to any such Foreign Subsidiary from Persons other than the Borrower or any of its Restricted Subsidiaries, the proceeds of which Indebtedness are used for such Foreign Subsidiary’s working capital purposes; provided that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) outstanding at any one time outstanding for all such Foreign Subsidiaries shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)50,000,000;
(exxii) renewalsIndebtedness (A) representing deferred compensation or similar obligations to employees incurred in the ordinary course of business and (B) consisting of obligations under deferred compensation or other similar arrangements incurred by such Person in connection with any Permitted Investment; and
(xxiii) the incurrence by the Borrower and/or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, extensions, refinancings and refundings as applicable) at any time outstanding (as measured on the date of each incurrence of Indebtedness permitted by clause (b) or (d) above or pursuant to this clause (exxiii), but at that time including for purposes of calculation any then outstanding Permitted Refinancing Indebtedness incurred to refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (xxiii)), not to exceed the greater of (A) $200,000,000 and (B) 5.0% of Consolidated Total Assets.
(c) The Borrower will not incur, and will not permit any Subsidiary Guarantor to incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Borrower or such Subsidiary Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Obligations on substantially identical terms; provided, however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Borrower solely by virtue of being unsecured or by virtue of being secured on a first or junior Lien basis.
(d) For purposes of determining compliance with this Section 10.04, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in Section 10.04(b), or is entitled to be incurred pursuant to Section 10.04(a), the Borrower will be permitted to classify such renewalitem of Indebtedness on the date of its incurrence, extensionor later reclassify all or a portion of such item of Indebtedness, refinancing in any manner that complies with this Section 10.04. Indebtedness under this Agreement outstanding on the Closing Date will initially be deemed to have been incurred on such date in reliance on the exception provided by clause (i) of Section 10.04(b). The accrual of interest, the accretion or refunding amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 10.04; provided, in each such case, that the amount thereof is included in an aggregate Fixed Charges of the Borrower as accrued.
(e) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency will be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-dominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-dominated restriction shall be deemed not greater than to have been exceeded so long as the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with such refinancing Indebtedness does not exceed the renewal, extension, refinancing or refunding principal amount of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;refinanced.
(f) The amount of any Indebtedness arising from intercompany loans outstanding as of any date will be (i) from the Borrower to any Guarantor; (ii) from any Subsidiary accreted value of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt andIndebtedness, in the case of any Indebtedness described in clause issued with original issue discount; (vii) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty principal amount of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further thatIndebtedness, in the case of Indebtedness described in clauses (i), (ii), any other Indebtedness; and (iii) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of (A) the Fair Market Value of such asset at the date of determination, and (ivB) above, the Investment amount of the Indebtedness of the other Person; provided that any changes in any of the intercompany loan by the lender thereof is permitted above shall not give rise to a default under this Section 7.03;10.04.
Appears in 2 contracts
Sources: Credit Agreement (Dynegy Inc.), Credit Agreement (Dynegy Inc.)
Indebtedness. The Borrower No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries to, directly or indirectly indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under the Loan DocumentsObligations;
(b) intercompany Indebtedness outstanding on among Parent and its Subsidiaries incurred (i) in the date hereof ordinary course of business (including transactions in the ordinary course of business in accordance with the Consolidated Cash Management System and listed on Schedule 7.01intercompany Indebtedness in lieu of an Investment otherwise permitted under Section 6.6) or (ii) outside the ordinary course of business in connection with tax, accounting, corporate structuring or reorganization or similar transactions together with refinancings thereof to the extent such refinancing Indebtedness would otherwise be permitted under this Section 6.1(b); provided that intercompany Indebtedness pursuant to clause (ii) shall be subordinated to the Obligations in a manner reasonably satisfactory to Administrative Agent to the extent not otherwise restricted by any Contractual Obligation;
(c) Guaranty Obligations Indebtedness (including letters of credit not provided under this Agreement) which, when aggregated with Indebtedness of Parent, Borrowers and their Subsidiaries and Joint Ventures (but, in the case of consolidated non-Wholly Owned Subsidiaries and Joint Ventures of Parent Guarantors or Borrowers, only to the extent allocable (based on economic share and not necessarily the percentage ownership) to Parent Guarantors, Borrowers or their Wholly Owned Subsidiaries), would not cause Parent to fail to be in pro forma compliance with the financial covenant set forth in Section 6.7(c) together with Permitted Refinancings thereof to the extent such refinancing Indebtedness would otherwise be permitted under this Section 6.1(c); provided that (i) Parent and its Subsidiaries and Joint Ventures shall not incur unsecured Indebtedness (other than unsecured Indebtedness permitted to exist as of the Closing Date and Permitted Refinancings thereof) in excess of $300,000,000 (the “Unsecured Indebtedness Sublimit”) and (ii) the aggregate outstanding amount of any Recourse Secured Mortgage Indebtedness shall not exceed the amount of Recourse Secured Mortgage Indebtedness outstanding on the Closing Date plus $750,000,000; provided that such Recourse Secured Mortgage Indebtedness is (A) incurred by to refinance, replace or extend Permitted Project Level Financing or (B) incurred to finance the Borrower construction, development, redevelopment, repair or improvement of any Guarantor GGP Property;
(d) Indebtedness in respect of Indebtedness of the Borrower or any Guarantor a Lien that is permitted under Section 6.2;
(e) guaranties by any Borrower of Indebtedness of a Guarantor Subsidiary or guaranties by a Guarantor Subsidiary of Indebtedness of any Borrower or another Guarantor Subsidiary, in each case, with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 7.01 (other than clause (g) below)6.1; provided, that if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;
(i) Indebtedness existing on the Closing Date described in the plan of reorganization of Existing GGPI, the Partnershp, the LLC and the Debtor Subsidiaries and the disclosure statement in connection therewith that is not required to be repaid in accordance with such plan and (ii) Permitted Refinancings thereof;
(i) Indebtedness of any Borrower or its Subsidiaries with respect to Capital Leases and (ii) purchase money Indebtedness of any Borrower or its Subsidiaries;
(h) Indebtedness consisting of financing of insurance premiums in the ordinary course of business;
(i) Indebtedness and other transactions specifically contemplated by the Plan (including the reinstatement of the Exchangeable Notes, the reinstatement of the TRUP Notes, the Reinstated ▇▇▇▇▇ Notes and the issuance of the Bridge Notes) or specifically contemplated by the Investment Agreements, and Permitted Refinancings thereof;
(j) cash management obligations and other Indebtedness in respect of Capital Lease Obligations endorsements for collection or deposit, netting services, overdraft protections and purchase similar arrangements in each case in connection with deposit accounts; provided that such Indebtedness is extinguished within five (5) Business Days after its incurrence;
(k) Indebtedness consisting of (i) take-or-pay obligations contained in utility supply arrangements and (ii) customary indemnification obligations, in each case, incurred in the ordinary course of business and not in connection with debt for money borrowed;
(l) letters of credit, bank guaranties or similar instruments in support of obligations in respect of workers’ compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds and other similar obligations (exclusive of obligations for tangible propertythe payment of borrowed money or Capital Leases);
(m) Indebtedness arising from agreements of Parent or any of its Subsidiaries providing for indemnification, adjustment of purchase or acquisition price, earn-out or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business or assets (iiincluding Capital Stock) of Parent or any of its Subsidiaries not prohibited by Section 6.6 or Section 6.8;
(n) Indebtedness incurred by Parent or any of its Subsidiaries representing deferred compensation to directors, officers, employees, members of management and consultants of such Person in the ordinary course of business;
(o) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and bankers’ acceptances supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(iiip) other secured Indebtedness (including secured Indebtedness incurred or assumed by in lieu of (and not in an amount in excess of) any Restricted Junior Payment permitted pursuant to Section 6.4;
(q) Indebtedness constituting a Municipal Financing incurred in the Borrower and its Subsidiaries ordinary course of business in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount new development or redevelopment of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)real property;
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrowerr) to the Borrower or any Subsidiary of the Borrowerextent constituting Indebtedness, Investments in repurchase agreements constituting Cash Equivalents; provided, however, that and
(xs) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement extent constituting Indebtedness, all premiums (if the payee is a Loan Party that is a party to the Collateral Agreementany), (y) all such Indebtedness (other than the interest, fees, expenses, charges and additional or contingent interest on Indebtedness described in clauses (i), a) through (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (ivr) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (General Growth Properties, Inc.), Credit and Guaranty Agreement (New GGP, Inc.)
Indebtedness. The Borrower shall not, and shall Company will not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or otherwise become liable for or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the followingIndebtedness, other than:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, the Company to the Lenders or the Agent hereunder;
(ii) Indebtedness of the Company existing on the Closing Date and disclosed on Schedule 2 and extensions, renewals and refinancings of such Indebtedness, provided that (x) such Indebtedness has been disclosed on the most recent financial statements of the Company submitted to the Agent or any Lender on or prior to the date of this Agreement, and (y) the principal amount of such Indebtedness is not increased except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in respect of sale connection with such extension, renewal or refinancing and leaseback transactions permitted by Section 7.13 and an amount equal to any existing unused commitments thereunder;
(iii) other secured unsecured trade, utility or non-extraordinary accounts payable arising in the ordinary course of business;
(iv) [intentionally omitted];
(v) Purchase Money Indebtedness; provided that the material terms and conditions of any Purchase Money Indebtedness relating to the Michigan Facility shall have been (including secured x) disclosed to the Agent prior to the Company’s incurrence of such Indebtedness incurred or assumed such that the Agent is provided with reasonably sufficient time to review such terms and conditions prior to the Company becoming obligated to incur such Indebtedness, and (y) consented to in writing by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); providedAgent (such consent not to be unreasonably withheld, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) delayed or 7.02(kconditioned);
(evi) renewalscash management agreements in the ordinary course of business;
(vii) Indebtedness arising from judgments or decrees in an aggregate principal amount outstanding at any time not to exceed $100,000;
(viii) sales rebates issued by the Company to customers in the ordinary course of business;
(ix) grants provided by the United States government in exchange for the Company’s obligation to purchase equipment specified by such grants or to fund research and development efforts specified in such grants;
(x) Indebtedness owed to the lenders pursuant to that certain Loan Agreement with respect to the Convertible Note Financing October 2012;
(xi) Indebtedness that is incurred on the date of the consummation of a Permitted Acquisition solely for the purpose of consummating such Permitted Acquisition so long as no Event of Default has occurred and is continuing or would result therefrom;
(xii) Acquired Indebtedness;
(xiii) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by the Company in the ordinary course of business;
(xiv) interest rate swaps, extensions, refinancings currency swaps and refundings similar financial products entered into or obtained in the ordinary course of business;
(xv) Subordinated Debt;
(xvi) Indebtedness permitted of the Company to any of its wholly owned Subsidiaries;
(xvii) Indebtedness of the Company pursuant to a working capital facility secured by clause a first priority security interest in the Company’s Accounts (bas such term is defined in the Code) or and Inventory (d) above or this clause (eas such term is defined in the Code); provided, however, that any such renewal, extension, refinancing or refunding is and
(xviii) additional Indebtedness of the Company not otherwise described above in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and to exceed $2,000,000 at any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;time outstanding.
Appears in 2 contracts
Sources: Loan Agreement (Marrone Bio Innovations Inc), Loan Agreement (Marrone Bio Innovations Inc)
Indebtedness. The Borrower shall will not, and shall will not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under the Loan DocumentsObligations;
(b) Permitted Existing Indebtedness outstanding on the date hereof and listed on Schedule 7.01Permitted Refinancing Indebtedness in respect thereof;
(c) Guaranty Obligations incurred Indebtedness arising from intercompany loans and advances owing by the Borrower or any Guarantor Restricted Subsidiary to the Borrower, any Restricted Subsidiary or any Unrestricted Subsidiary; provided that any such intercompany loans and advances shall be subject to the limitations set forth in respect of Section 6.05;
(d) Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and purchase money obligations for tangible propertyany Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof, provided that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all Indebtedness incurred pursuant to this Section 6.03(d) (other than any Capital Lease Obligations incurred to refinance or replace any lease that was classified as an operating lease in accordance with GAAP at the time such lease was entered into) shall not at any time exceed $50,000,000 and (iii) for purposes of determining whether any Indebtedness incurred pursuant to this Section 6.03(d) is permitted under the Senior Notes Indentures, neither the Borrower nor any Restricted Subsidiary shall be permitted to incur such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and in reliance on the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)Secured Debt Indenture Exceptions;
(e) renewals, extensions, refinancings Permitted Unsecured Notes and refundings Permitted Refinancing Indebtedness in respect thereof;
(f) other Indebtedness of the Borrower and its Restricted Subsidiaries in an aggregate principal amount at any time outstanding pursuant to this Section 6.03(f) not in excess of $50,000,000;
(g) Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is incurred to finance insurance premiums in the ordinary course of business in an aggregate principal amount not greater than to exceed the amount of such insurance premiums;
(h) indemnification, adjustment of purchase price, earnout or similar obligations, in each case, incurred or assumed in connection with any acquisition or Disposition otherwise permitted hereunder; and
(i) to the extent constituting Indebtedness, Indebtedness associated with worker’s compensation claims, performance, bid, surety or similar bonds or surety obligations required by Requirements of Law or by third parties in the ordinary course of business in connection with the operation of, or provision for the abandonment and remediation of, the Oil and Gas Properties. For purposes of this Section 6.03, any payment by the Borrower or any Restricted Subsidiary of any interest on any Indebtedness in kind (by adding the amount of such interest to the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall deemed to be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) an incurrence of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;Indebtedness.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Southwestern Energy Co)
Indebtedness. The Borrower shall notCreate, and shall not permit any of its Subsidiaries to, directly or indirectly createissue, incur, assume assume, become liable in respect of or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and Closing Date and, to the extent the principal amount of any such Indebtedness is in excess of $5,000,000, listed on Schedule 7.017.2 and any Permitted Refinancing Indebtedness in respect thereof;
(c) Guaranty Obligations Permitted Incremental Equivalent Debt and Permitted External Refinancing Debt and any Permitted Refinancing Indebtedness in respect thereof; provided that it shall be a condition precedent to the effectiveness of any Permitted Incremental Equivalent Debt that (i) after giving effect thereto, the Aggregate Incremental Amount does not exceed the Incremental Cap (provided that no such unsecured indebtedness may be incurred under the Ratio Incremental Amount), (ii) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Permitted Incremental Equivalent Debt, (iii) the Parent Borrower is in compliance with the financial covenants set forth in Section 7.1, determined as of the fiscal quarter of the Parent Borrower most recently ended for which financial statements have been delivered pursuant to Section 6.1 and on a pro forma basis as of such fiscal quarter end and (iv) the representations and warranties set forth in Section 4 and in each other Loan Document shall be true and correct in all material respects on and as of the date of such Permitted Incremental Equivalent Debt, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, solely to the extent required by the lenders providing such Permitted Incremental Equivalent Debt; provided that with respect to any Permitted Incremental Equivalent Debt being incurred to finance a Permitted Acquisition designated by the Parent Borrower as a “Limited Conditionality Acquisition”, such compliance with clauses (ii) and (iv) may be determined as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition;
(d) obligations (contingent or otherwise) of the Parent Borrower or any Guarantor Restricted Subsidiary existing or arising under any Swap Agreement, provided that such obligations are entered into by such Person in respect the ordinary course of Indebtedness business and not for purposes of the Borrower speculation or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below)taking a “market view”;
(e) intercompany Indebtedness among the Parent Borrower and its Restricted Subsidiaries to the extent permitted by Section 7.7; provided that any such Indebtedness owed by a Loan Party to a Restricted Subsidiary that is not a Loan Party shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent;
(f) (i) (A) Receivables Transaction Attributed Indebtedness in respect of and Factoring Indebtedness plus (B) Indebtedness (including Indebtedness under Capital Lease Obligations Obligations, Synthetic Lease Attributed Indebtedness and purchase money obligations for tangible property, (ii) but excluding Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries arising under Capital Lease Obligations entered into in connection with a Permitted AcquisitionSale and Leaseback Transaction permitted under Section 7.5(g); provided) incurred to provide all or a portion of the purchase price (or cost of construction or acquisition), howeverin each case, for capital assets and refinancings, refundings, renewals or extensions thereof, provided that the aggregate principal amount of all such Indebtedness permitted by incurred under clauses (A) and (B) of this subsection (dSection 7.2(f)(i) shall not at any one time outstanding shall not exceed the greater of (x) $200,000,000 700,000,000 and (y) 15.50% of Consolidated Total Assets of the Liens securing Parent Borrower and its Restricted Subsidiaries as of such date; and (ii) Indebtedness shall be within the limitations set forth arising under Capital Lease Obligations entered into in Sections 7.02(d), 7.02(econnection with a Sale and Leaseback Transaction permitted under Section 7.5(g) or 7.02(k)and any Permitted Refinancing Indebtedness in respect thereof;
(eg) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is under the Albuquerque IRB Financing in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses to exceed $100,000 and any premium incurred Permitted Refinancing Indebtedness in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;respect thereof.
(fh) Indebtedness arising from intercompany loans other unsecured Indebtedness; provided that (i) from the Borrower to any Guarantor; no Default or Event of Default shall exist immediately before or immediately after giving effect thereto on a pro forma basis, (ii) from any Subsidiary the Consolidated Total Leverage Ratio as of the last day of the fiscal quarter of the Parent Borrower to the Borrower or any Guarantor; most recently ended for which financial statements have been delivered under Section 6.1, determined on a pro forma basis, is less than 4.75:1.00, (iii) from the final maturity date of any Subsidiary such Indebtedness shall be no earlier than six months following the Maturity Date, except in the case of customary high-yield bridge loans 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 Indebtedness that does not mature earlier than the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; Maturity Date and (iv) from the Borrower terms of such Indebtedness shall not provide for any scheduled repayment, mandatory redemption, sinking fund obligations or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or other payment (vother than periodic interest payments) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party date that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to six months following the Maturity Date, other than customary offers to purchase upon a change of control, asset sale or casualty or condemnation event and (z) any payment by any such Guarantor under any guaranty customary acceleration rights upon an event of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is madedefault; provided, further thatfurther, that with respect to any such Indebtedness being incurred to finance a Permitted Acquisition designated by the Parent Borrower as a “Limited Conditionality Acquisition”, such compliance with clause (i) and (ii) may be determined as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition; provided, further, that any such Indebtedness of any Subsidiaries that are not Loan Parties shall not exceed, in the case aggregate at the time of incurrence thereof, the greater of (x) $150,000,000 and (y) 3.25% of Consolidated Total Assets of the Parent Borrower and its Restricted Subsidiaries as of such date;
(i) Support Obligations by the Parent Borrower and its Restricted Subsidiaries in respect of Indebtedness otherwise permitted hereunder, provided that Support Obligations by the Loan Parties with respect to Indebtedness of Restricted Subsidiaries that are not Loan Parties is an Investment permitted by Section 7.7;
(j) (x) Indebtedness in an aggregate principal amount of up to $7,500,000 consisting of letters of credit or bank guarantees not arising under the Loan Documents issued to support the obligations of the Parent Borrower or any Restricted Subsidiary incurred in the ordinary course of business and (y) Indebtedness consisting of letters of credit under Bilateral L/C Facilities in an aggregate principal amount, together with any Indebtedness incurred under clause (j)(x), of up to $100,000,000;
(k) Indebtedness consisting of banker’s acceptances, statutory obligations, surety or appeal bonds, performance bonds or similar arrangements in the ordinary course of business, consistent with past practices and not in connection with Indebtedness for borrowed money;
(l) (i) Indebtedness of Restricted Subsidiaries that are not U.S. Loan Parties provided that the aggregate principal amount of such Indebtedness shall not exceed the greater of (x) $225,000,000 and (y) 5.00% of Consolidated Total Assets of the Parent Borrower and its Restricted Subsidiaries as of such date outstanding at any time and (ii) Indebtedness of Foreign Subsidiaries incurred to satisfy the Danish Tax Assessment;
(m) [reserved];
(n) Indebtedness outstanding under the 2029 Senior Notes in an aggregate principal amount not to exceed $800,000,000 and under the 2031 Senior Notes in an aggregate principal amount not to exceed $800,000,000 and, in each case, any Permitted Refinancing Indebtedness in respect thereof;
(o) Indebtedness of any Person that becomes a Restricted Subsidiary on or after the Closing Date; provided that (A) such Indebtedness exists at the time such Person becomes a Restricted Subsidiary and (B) such Indebtedness is not made in anticipation or contemplation of such Person becoming a Restricted Subsidiary;
(p) other Indebtedness in an aggregate principal amount not to exceed at any time outstanding the greater of (x) $225,000,000 and (y) 5.00% of Consolidated Total Assets of the Parent Borrower and its Restricted Subsidiaries as of such date;
(q) Indebtedness of the Parent Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate principal amount at any time outstanding not to exceed $25,000,000;
(r) Indebtedness of the Parent Borrower or any Restricted Subsidiary arising from guarantees of Indebtedness of joint ventures in an aggregate principal amount at any time outstanding not to exceed the greater of (x) $45,000,000 and (y) 5.00% of Consolidated EBITDA for the four full fiscal quarters, treated as one period, ending prior to the date of determination for which financial statements have been delivered under Section 6.1 on a pro forma basis; and
(s) Indebtedness arising under Cash Management Agreements. For purposes of determining compliance with this Section 7.2, (A) Indebtedness need not be incurred solely by reference to one category described in this Section 7.2, but is permitted to be incurred in part under any combination thereof and of any other available exemption and (B) in the event that Indebtedness (or any portion thereof) meets the criteria of more than one of the categories of permitted Indebtedness described in this Section 7.2, the Parent Borrower, in its sole discretion, may divide or classify any such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 7.2 and will be entitled to only include the amount and type of such item of Indebtedness (or any portion thereof) in one or more (as relevant) of the above clauses (i), (ii), (iiior any portion thereof) and such item of Indebtedness (ivor any portion thereof) aboveshall be treated as having been incurred or existing pursuant to only such clause or clauses (or any portion thereof); provided that all Indebtedness incurred hereunder will, the Investment in the intercompany loan by the lender thereof is permitted at all times, be treated as incurred under Section 7.03;7.2(a) and the Indebtedness outstanding under the Senior Notes will, at all times, be treated as incurred under Section 7.2(n).
Appears in 2 contracts
Sources: Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.)
Indebtedness. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly create, incur, assume assume, guarantee or otherwise become be or remain directly or indirectly liable with respect to any Indebtedness, or permit any Subsidiary so to do, other than Permitted Indebtedness, or prepay any Indebtedness or take any actions which impose on Borrower an obligation to prepay any Indebtedness, except for the following:
(a) the conversion of Indebtedness under into equity securities and the Loan Documents;
payment of cash in lieu of fractional shares in connection with such conversion, (b) purchase money Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
pursuant to its then applicable payment schedule, (c) Guaranty Obligations incurred prepayment by the Borrower or any Guarantor in respect Subsidiary of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any inter-company Indebtedness owed by such Subsidiary to any Borrower, or (ii) if such Subsidiary is not a Borrower, intercompany Indebtedness owed by such Subsidiary to another Subsidiary that is not a Borrower, extensions, refinancings and renewals of any items of Permitted Indebtedness, provided that the principal amount is not increased or the terms modified to impose materially more burdensome terms upon Borrower or to any of its Subsidiaries for whose benefit such payment is made; providedSubsidiary, further thatas the case may be, (e) Indebtedness owed under corporate credit cards constituting “Permitted Indebtedness” and prepaid in the case ordinary course of Indebtedness described in clauses (i)business, (ii), (iiif) and trade debt incurred in the ordinary course of business to the extent permitted under subsection (iv) aboveof the definition of “Permitted Indebtedness”, the Investment or (g) as otherwise permitted hereunder or approved in the intercompany loan writing by the lender thereof is permitted under Section 7.03;Agent.
Appears in 2 contracts
Sources: Loan and Security Agreement (Syndax Pharmaceuticals Inc), Loan and Security Agreement (Syndax Pharmaceuticals Inc)
Indebtedness. The Borrower shall not(a) Within the time periods required by the terms of each Convertible Notes Indenture, the Company shall, and shall not permit any of its cause the Company Subsidiaries to, directly take all actions required by, or indirectly createreasonably requested by Parent pursuant to, incurthe applicable Convertible Notes Indenture and applicable Law to be performed by the Company or any Company Subsidiary at or prior to the Effective Time as a result of the execution and delivery of this Agreement or the consummation of the Transactions, assume including the giving of any notices that may be required or reasonably requested by Parent and delivery to the trustees, holders or other applicable Persons, as applicable, of any documents or instruments required or reasonably requested by Parent to be delivered at or prior to the Effective Time to such trustees, holders or other applicable Persons, in each case in connection with the execution and delivery of this Agreement, the Transactions or as otherwise become required by, or remain directly reasonably requested by Parent pursuant to, the Convertible Notes Indentures; provided that the Company (or indirectly liable the applicable Company Subsidiary) shall deliver a copy of any such notice or other document to Parent at least three (3) Business Days prior to delivering or entering into such notice or other document in accordance with respect the terms of the applicable Convertible Notes Indenture. Without limiting the generality of the foregoing, prior to any Indebtedness except for the following:
Effective Time, the Company agrees to cooperate with Parent, at Parent’s written request, by (ai) Indebtedness executing and delivering (or causing to be executed and delivered, as applicable) prior to or at the Effective Time one or more supplemental indentures, officer’s certificates and opinions of counsel (to the extent required by the trustee pursuant to the Convertible Notes Indentures), in each case in form and substance reasonably acceptable to Parent, pursuant to the applicable Convertible Notes Indenture and (ii) using its reasonable best efforts to cause each of the trustees under the Loan Documents;Convertible Notes Indentures to execute at or prior to the Effective Time any such supplemental indentures. If the Effective Time does not occur prior to December 1, 2021, the Company shall make any Additional Interest payment required by the 2025 Notes Indenture to holders under the 2025 Notes Indenture on the December 1, 2021 interest payment date.
(b) Indebtedness outstanding on Prior to the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by Effective Time, the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
Company shall (i) Indebtedness take all actions reasonably requested by Parent in respect of Capital Lease Obligations and purchase money obligations for tangible propertyconnection with making elections under, amending, negotiating adjustments, obtaining waivers or unwinding or otherwise settling the Capped Call Confirmations, (ii) Indebtedness promptly advise Parent of any notices or other communications with the counterparties to the Convertible Note Hedge Obligations in respect of sale and leaseback transactions permitted by Section 7.13 any settlement or termination thereof or adjustment thereto (including any adjustments arising out of an Announcement Event (as defined in the Capped Call Confirmations)), and (iii) cooperate with Parent with respect to its efforts to settle, terminate or amend the Convertible Note Hedge Obligations and the negotiation of any termination or settlement payment or valuation related thereto or the negotiation of any amendment thereto, as applicable; provided that the Company shall not (x) exercise any right that it may have to terminate, or cause the early settlement, exercise or cancellation of, the Convertible Note Hedge Obligations (other secured Indebtedness than any exercise or termination contemplated pursuant to Section 9(i)(i) of the applicable Capped Call Confirmations upon any conversion of the applicable Convertible Notes prior to the Effective Time (including secured Indebtedness incurred a “Specified Exercise”)) (it being agreed that the Company shall notify Parent in writing as promptly as practicable prior to any such exercise or assumed termination); or (y) agree to amend, modify or supplement the terms relating to, or agree to any amount due upon, the termination or settlement thereof, in each case of clauses (x) and (y), without the prior written consent of Parent; provided, further, that nothing in this Section 6.15(b) shall require the Company to (A) pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note Hedge Obligations prior to the occurrence of the Effective Time, (B) enter into or effect any settlement, termination, instrument or agreement, or agree to any settlement, termination or any other change or modification to any instrument or agreement, that is effective prior to the occurrence of the Effective Time or (C) refrain from delivering, or delay the delivery of, any notice required by the Borrower and its Subsidiaries terms of the Convertible Note Hedge Obligations or a notice contemplated by Section 9(i)(i) of the applicable Capped Call Confirmations in connection with a Permitted Acquisition); provided, however, Specified Exercise (it being understood that the aggregate principal amount Company will provide Parent with prior notice of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in delivery with an aggregate principal amount not greater than opportunity to comment on the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtednessrelevant notice), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;.
Appears in 2 contracts
Sources: Merger Agreement (Zoom Video Communications, Inc.), Merger Agreement
Indebtedness. The Borrower shall will not, and shall not nor will it permit any of its Subsidiaries to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under the Loan Documentscreated hereunder;
(b) Indebtedness outstanding existing on the date hereof Effective Date the principal or face amount of which does not exceed $10,000,000 with respect to each individual item of Indebtedness or that is otherwise set forth in Part A of Schedule I, and listed on Schedule 7.01;
any extension, renewal, refinancing or replacement of any such Indebtedness so long as (ci) Guaranty Obligations incurred by such existing Indebtedness being extended, renewed, refinanced or replaced pursuant to this clause (b) does not constitute Senior Unsecured Indebtedness or Subordinated Indebtedness and (ii) at the time of such extension, renewal, refinancing or replacement, and after giving effect thereto, (A) the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such extension, renewal, refinancing or any Guarantor replacement occurred at the beginning of the respective period) and (B) no Default or Event of Default shall have occurred and be continuing hereunder; provided that the principal of and interest on, and all other amounts owing in respect of Indebtedness of under the Borrower or any Guarantor that is permitted by this Section 7.01 Existing Credit Agreement (other than clause (gin respect of letters of credit which, as provided in Section 2.05(m) below)are to become Letters of Credit hereunder) and Specified Vincor Obligations shall in any event be repaid in full as promptly as practicable following the Arrangement Effective Date;
(i) Indebtedness outstanding in respect of Capital Lease Obligations the Senior Unsecured Notes and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured unsecured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisitionother than Subordinated Indebtedness); providedprovided that the following conditions shall be satisfied with respect to such other Indebtedness (each of which shall be fulfilled in form and substance reasonably satisfactory to the Administrative Agent):
(A) the Net Available Proceeds of such other Indebtedness shall be applied to (x) prepay Loans in accordance with Section 2.10(b)(iii), however, (y) refinance or pay at maturity the Senior Unsecured Indebtedness (in accordance with Section 7.12) or (z) finance one or more Acquisitions pursuant to Section 7.05(b) (provided that the aggregate principal amount of all such Senior Unsecured Indebtedness permitted by this subsection (d) at any the Net Available Proceeds of which is applied to finance one time outstanding or more such Acquisitions shall not exceed $200,000,000 U.S.$750,000,000 unless at the time such Indebtedness is incurred, the Senior Debt Ratio is less than or equal to 3.0 to 1 (the determination of such ratio to be calculated as of the last day of the most recently-ended fiscal quarter of the Borrower under the assumption that such Indebtedness was issued at the beginning of the applicable calculation period);
(B) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(C) terms in respect of financial and the Liens securing other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be within no more restrictive in any material respect on the limitations set Borrower or any of its Subsidiaries than the terms of the Senior Unsecured Notes;
(D) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance), and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer to such effect setting forth in Sections 7.02(d)reasonable detail the computations necessary to determine such compliance (including, 7.02(eif applicable, computations in reasonable detail as to the satisfaction of the conditions specified in clauses (A) or 7.02(kabove);
(eE) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than at the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding time of such Indebtedness)issuance, and is on terms that in the aggregate are not materially less favorable to the Borrower after giving effect thereto, no Default or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;Event of Default shall have occurred and be continuing hereunder; and
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (vF) prior to the Spinoffsuch issuance, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) shall deliver to the Borrower or any Subsidiary Administrative Agent a certificate of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant Financial Officer to the Collateral Agreement effect specified in the foregoing clauses (if the payee is a Loan Party that is a party to the Collateral AgreementC), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iiiD) and (ivE) of this (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)D) shall be Subordinated Debt andand including, if applicable, computations in reasonable detail as to the satisfaction of the conditions specified in the case of Indebtedness described in foregoing clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (iA), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;
Appears in 2 contracts
Sources: Credit Agreement (Constellation Brands, Inc.), Credit Agreement (Constellation Brands, Inc.)
Indebtedness. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with in respect to of any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under to the Loan DocumentsLenders hereunder;
(b) Indebtedness outstanding on Liabilities of the date hereof Borrower and/or its Subsidiaries (other than for borrowed money) incurred in the ordinary course of its business and listed on Schedule 7.01in accordance with customary trade practices;
(c) Guaranty Obligations incurred by Existing Indebtedness, together with all accrued and unpaid interest thereon, of the Borrower and/or any Subsidiary referred to in Schedule 7.02 attached hereto, and refinancings thereof in an amount not more than the greater of (i) the respective unpaid principal amounts thereof or any Guarantor (ii) the respective principal amounts available to be drawn thereunder on the date hereof, in respect of each case as specified in such schedule, together with all accrued and unpaid interest thereon;
(d) Indebtedness of the Borrower and/or any Subsidiary secured as permitted by, and subject to the proviso to, subparagraph (c) of Section 7.02;
(e) Unsecured Indebtedness incurred or assumed in connection with (i) any Guarantor that is Permitted Acquisition consummated pursuant to Section 7.03(g)(A) hereof in an amount not to exceed seventy-five percent (75%) of the purchase price of such Permitted Acquisition (excluding as Indebtedness incurred or assumed for the purpose of this computation, any promissory notes issued in connection with and included in the payment of the purchase price of any such Permitted Acquisition) and (ii) any Permitted Acquisition consummated pursuant to Section 7.03(g)(B) hereof;
(f) Indebtedness in respect of promissory notes issued in connection with any Permitted Acquisition and secured as permitted by this Section 7.01 (other than clause 7.02;
(g) below)Other secured Indebtedness incurred or assumed in connection with any Permitted Acquisition consummated pursuant to (i) Section 7.3(g)(A) in an aggregate principal amount at any time outstanding not to exceed $500,000 and (ii) Section 7.03(g) hereof;
(h) Other unsecured Indebtedness not to exceed $100,000; and
(i) Indebtedness in respect of Capital Lease Obligations (i) taxes, assessments, governmental charges or levies and purchase money obligations claims for tangible propertylabor, materials and supplies to the extent that payment thereof shall not at the time be required to be made or is being contested, (ii) Indebtedness judgments or awards which have been in force for less than the applicable appeal period so long as execution is not levied thereunder or in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to which the Borrower or any Subsidiary shall in good faith be prosecuting an appeal or proceedings for review in a manner reasonably satisfactory to the Administrative Agent and in respect of which a stay of execution shall have been obtained pending such appeal or review and for which adequate reserves have been established in accordance with, and to the Borrower; providedextent required by, howeverGAAP, that (x) all such Indebtedness (other than the Indebtedness described in clause and (iii) endorsements made in connection with the deposit of items for credit or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, collection in the case ordinary course of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;business.
Appears in 2 contracts
Sources: Credit Agreement (Harvard Bioscience Inc), Credit Agreement (Harvard Bioscience Inc)
Indebtedness. The Borrower shall will not, and shall will not permit any of its Subsidiaries other Group Member to, directly or indirectly create, incur, create, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under the Loan DocumentsLoans or other Secured Obligations;
(b) Indebtedness outstanding of the Group Members existing on the date hereof and listed set forth on Schedule 7.019.02 as well as any Permitted Refinancing Indebtedness in respect thereof;
(c) Guaranty purchase money Indebtedness or Capital Lease Obligations incurred not to exceed $30,000,000 in the aggregate at any one time outstanding;
(d) unsecured Indebtedness associated with worker’s compensation claims, bonds or 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 remediation of, the Oil and Gas Properties;
(e) (i) Indebtedness among the Borrower and its Subsidiaries which are Loan Parties, (ii) Indebtedness between the Subsidiaries of the Borrower which are not Loan Parties and (iii) Indebtedness extended to the Borrower and its Subsidiaries which are Loan Parties by any Group Members; provided that (A) such Indebtedness is not held, assigned, transferred, negotiated or pledged to any Person other than a Loan Party and (B) any such Indebtedness owed by either the Borrower or a Guarantor shall be subordinated to the Secured Obligations on terms satisfactory to the Administrative Agent;
(f) endorsements of negotiable instruments for collection in the ordinary course of business;
(g) any Guarantor guarantee of any other Indebtedness permitted to be incurred hereunder;
(h) unsecured Indebtedness in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Swap Agreements entered into in compliance with Section 7.01 (other than clause (g) below)9.17;
(i) Indebtedness of the Borrower in respect of Capital Lease Obligations Permitted Unsecured Debt and purchase money obligations for tangible propertyany Permitted Refinancing Indebtedness of such Indebtedness provided, that (i) such Indebtedness does not exceed $500,000,000 of principal in the aggregate outstanding at any time and (ii) giving pro forma effect to such Indebtedness and the repayment of any other Indebtedness with the proceeds thereof, (A) no Default, Event of Default or Borrowing Base Deficiency exists at such time, (B) the ratio of Total Net Debt to EBITDAX for the most recent four Fiscal Quarters for which financial statements are available is in respect of sale and leaseback transactions permitted by compliance with Section 7.13 9.01(a) and (iiiB) the Availability is equal to or greater than 15%; and
(j) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries not to exceed $15,000,000 in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;outstanding.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Diversified Energy Co PLC), Revolving Credit Agreement (Diversified Energy Co PLC)
Indebtedness. The Borrower shall not, and shall not permit Neither the Company nor any of its Subsidiaries to, shall directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, evidenced by the Notes;
(ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is Bank Secured Obligations in an aggregate principal amount not greater than to exceed the principal amount of (plus reasonable feesPermitted Senior Additional Indebtedness and Permitted Refinancing Indebtedness in respect thereof, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable subject to the Borrower or such Subsidiary, including as to weighted average maturity, than terms of the Indebtedness being renewed, extended, refinanced or refundedSubordination Agreement set forth in clause (a) of the definition of Subordination Agreements;
(fiii) Permitted Existing Indebtedness and Permitted Refinancing Indebtedness in respect thereof;
(iv) Indebtedness in respect of obligations secured by Customary Permitted Liens;
(v) Indebtedness constituting Contingent Obligations permitted by section 10.3(e);
(vi) subject to the terms of section 10.3(q), Indebtedness arising from intercompany loans and advances (i) from the Borrower to any Guarantor; (iia) from any Subsidiary of the Borrower to the Borrower Company or any Guarantor; wholly-owned Subsidiary or (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (ivb) from the Borrower or any Guarantor Company to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrowerwholly-owned Subsidiary; provided, however, that (x) all such Indebtedness shall subordinated to the Notes on subordination terms set forth in Exhibit 10.3;
(other than vii) Indebtedness in respect of Hedging Obligations permitted under Section 7.3(p) of the Bank Credit Agreement as in effect on the Closing Date or under any Permitted Refinancing Indebtedness described to the extent permitted under the Subordination Agreement set forth in clause (iii) or (va) of this clause the definition thereof;
(f)viii) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such secured or unsecured purchase money Indebtedness (other than including Capitalized Leases) incurred by the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower Company or to any of its Subsidiaries for whose benefit after the Closing Date to finance the acquisition of fixed assets, if (a) at the time of such payment incurrence, no Default or Event of Default has occurred and is made; providedcontinuing or would result from such incurrence, further that(b) such Indebtedness has a scheduled maturity and is not due on demand, (c) such Indebtedness does not exceed the lower of the fair market value or the cost of the applicable fixed assets on the date acquired, (d) such Indebtedness does not exceed $1,500,000 in the case of Indebtedness described in clauses (i)aggregate principal amount outstanding at any time, (ii), (iii) and (ive) above, the Investment in the intercompany loan by the lender thereof any Lien securing such Indebtedness is permitted under Section 7.03section 10.3(c) (such Indebtedness being referred to herein as "Permitted Purchase Money Indebtedness");
(ix) Indebtedness with respect to surety, appeal and performance bonds obtained by the Company or any of its Subsidiaries in the ordinary course of business;
(x) Indebtedness incurred by the Company or any of its Subsidiaries (whether assumed by the Company or such Subsidiary or issued to the seller) in any Permitted Acquisition as part of the consideration therefor, provided that such Indebtedness is unsecured and is subordinated to the Notes on terms reasonably acceptable to the Required Holders;
(xi) Indebtedness evidenced by the Seller Notes and Permitted Refinancing Indebtedness in connection therewith;
(xii) guaranties by the Company of Indebtedness permitted to be incurred by any Subsidiary;
(xiii) Indebtedness arising in connection with the Company's or any of its Subsidiaries' credit card programs maintained with any of the Bank Lenders; and
(xiv) additional unsecured Indebtedness in an aggregate amount at any time outstanding not exceeding $1,500,000.
Appears in 2 contracts
Sources: Mezzanine Note Securities Purchase Agreement (Alion Science & Technology Corp), Mezzanine Note Securities Purchase Agreement (Alion Science & Technology Corp)
Indebtedness. The Borrower shall not, and shall not permit Incur any of its Subsidiaries to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the following:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (eAcquired Indebtedness); provided, however, that any such renewal, extension, refinancing or refunding Obligor may Incur Indebtedness if the Indebtedness is in an aggregate principal amount not greater than any of the principal amount following types:
(a) (i) Guarantee Obligations of (plus reasonable fees, expenses and any premium incurred in connection with Obligor of Indebtedness of any Obligor so long as the renewal, extension, refinancing or refunding Incurrence of such Indebtedness)Indebtedness is permitted under the terms hereof or (ii) without limiting the covenants set forth in Section 7.01, Indebtedness arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of any Obligor so long as the Incurrence of such Indebtedness and is on the granting of such Liens are permitted under the terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedof this Agreement;
(fb) Indebtedness arising from intercompany loans (i) from the Borrower of any Obligor owing to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to and held by any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the BorrowerObligor; provided, however, that (xi) all any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness (being beneficially held by a Person other than an Obligor; and (ii) any sale or other transfer of any such Indebtedness to a Person other than an Obligor, in each case shall be deemed to constitute an Incurrence of such Indebtedness by such Obligor;
(c) Indebtedness represented by the (i) Senior Notes, the DBS Revolver, or the Packing Credit Facility, including any Guarantee Obligations in respect thereof, and (ii) Refinancing Indebtedness in respect of the Indebtedness described in the preceding clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i);
(d) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes) for the purpose of limiting interest rate risk, exchange rate risk or commodity pricing risk (as determined in good faith by the Board of Directors or Senior Management of the Borrower);
(e) Indebtedness represented by Capitalized Lease Obligations or Purchase Money Obligations, and in each case any Refinancing Indebtedness in respect thereof, in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, does not exceed the greater of (i) $75,000,000 and (ii) 3.75% of Total Assets at the time of Incurrence;
(f) Indebtedness in respect of (i) workers’ compensation claims, self-insurance obligations, performance, indemnity, surety, judgment, appeal, advance payment, customs, value added or other tax or other guarantees or other similar bonds, instruments or obligations and completion guarantees and warranties provided by any Obligor or relating to liabilities, obligations or guarantees Incurred in the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, (▇▇) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business, (iii) the financing of insurance premiums in the ordinary course of business and (iv) any customary Cash Management Services, cash pooling or netting or setting off arrangements in the ordinary course of this clause business;
(fg) Indebtedness arising from agreements providing for guarantees, indemnification, obligations in respect of earn-outs or other adjustments of purchase price or, in each case, similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Capital Stock of a Subsidiary (other than Guarantee Obligations in respect of Indebtedness Incurred by any Person acquiring or disposing of such business or assets or such Subsidiary for the purpose of financing such acquisition or disposition); provided that the maximum liability of the Obligor Group in respect of all such Indebtedness shall at no time exceed the gross proceeds, including the fair market value of non-cash proceeds (measured at the time received and without giving effect to any subsequent changes in value), actually received by the Obligor Group in connection with such disposition;
(i) shall be Subordinated Debt Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of Incurrence; (ii) Customer deposits and advance payments received in the ordinary course of business from customers for goods or services purchased in the ordinary course of business; (iii) Indebtedness owed on a short-term basis of no longer than 30 days to banks and other financial institutions Incurred in the ordinary course of business of any Obligor with such banks or financial institutions that arises in connection with ordinary banking arrangements to manage cash balances of the Obligor Group; and (iv) Indebtedness Incurred by an Obligor in connection with bankers acceptances, discounted bills of exchange or the discounting or factoring of receivables for credit management purposes, in each case Incurred or undertaken in the ordinary course of business on arm’s length commercial terms on a recourse basis;
(i) Unsecured Indebtedness in an aggregate outstanding principal amount which, together with any Refinancing Indebtedness in respect thereof, is not in excess of $150,000,000;
(j) Indebtedness consisting of promissory notes issued by an Obligor to any current or former employee, director or consultant of any Obligor or any of its Parents (or permitted transferees, assigns, estates, or heirs of such employee, director or consultant), to finance the purchase or redemption of Capital Stock of iGate Corporation or any of its Parents permitted by Section 7.06; and
(k) Indebtedness of any Obligor consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case Incurred in the ordinary course of business.
(l) Acquired Indebtedness if on the date of the Incurrence thereof and after giving pro forma effect thereto, in the case of Acquired Indebtedness which is not Secured Indebtedness, the Fixed Charge Coverage Ratio for the Obligor Group is less than 2.50 to 1.00, and in the case of Acquired Indebtedness which is Secured Indebtedness, the Consolidated Priority Debt Leverage Ratio for the Obligor Group is less than 1.50 to 1.00. For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section:
(1) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in clause this Section, the Borrower, in its sole discretion, will classify, and may from time to time reclassify, such item of Indebtedness and only be required to include the amount and type of such Indebtedness in the foregoing clauses (va) onlythrough (n) or the first paragraph of this Section;
(2) all or any portion of any item of Indebtedness may later be classified as having been Incurred pursuant to any type of Indebtedness described in the first and second paragraphs of this covenant so long as such Indebtedness is permitted to be Incurred pursuant to such provision at the time of reclassification;
(3) Guarantee Obligations or obligations in respect of letters of credit, bankers’ acceptances or other similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness shall not permit any cash payments be included;
(4) the principal amount of any kind prior Disqualified Stock of an Obligor, or Preferred Stock of a Restricted Subsidiary, will be equal to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty greater of the Obligations shall result maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof;
(5) Indebtedness permitted by this covenant need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this covenant permitting such Indebtedness; and
(6) the amount of Indebtedness issued at a pro tanto reduction price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined on the basis of GAAP. Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest in the form of additional Indebtedness, the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock or the reclassification of commitments or obligations not treated as Indebtedness due to a change in GAAP, will not be deemed to be an Incurrence of Indebtedness for purposes of the covenant described under this Section. The amount of any Indebtedness owed by such Subsidiary to outstanding as of any date shall be (x) the Borrower accreted value thereof in the case of any Indebtedness issued with original issue discount and (y) the principal amount, or to any of its Subsidiaries for whose benefit such payment is made; provided, further thatliquidation preference thereof, in the case of any other Indebtedness. If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness described in clauses of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary of the Borrower as of such date (i)and, (ii), (iii) and (iv) aboveif such Indebtedness is not permitted to be Incurred as of such date under this Section, the Investment Borrower shall be in breach of the covenant contained in this Section 7.03). Notwithstanding any other provision in this Section 7.03, the maximum amount of Indebtedness that an Obligor may Incur pursuant to this Section shall not be deemed to be exceeded solely as a result of fluctuations in the intercompany loan by exchange rate of currencies. The principal amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the lender thereof Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness is permitted under Section 7.03;denominated that is in effect on the date of such refinancing. The Borrower will not, and will not permit any Guarantor to, directly or indirectly, Incur any Indebtedness (including Acquired Indebtedness) that is subordinated or junior in right of payment to any Indebtedness of the Borrower or such Guarantor, as the case may be, unless such Indebtedness is expressly subordinated in right of payment to the Loans or such Guarantor’s Guarantee Obligations to the extent and in the same manner as such Indebtedness is subordinated to other Indebtedness of the Borrower or such Guarantor, as the case may be, provided that for purposes of this Agreement, unsecured Indebtedness shall not be treated as subordinated or junior to Secured Indebtedness merely because it is unsecured.
Appears in 2 contracts
Sources: Credit Agreement (Igate Corp), Credit Agreement (Igate Corp)
Indebtedness. The Borrower shall Company will not, and shall will not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under created pursuant to this Agreement and the Loan DocumentsNotes;
(b) Indebtedness outstanding on of the date hereof Company owing to any Obligor and listed on Schedule 7.01of any Subsidiary owing to any Obligor;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower Company or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect Subsidiary incurred[ after the Date of Capital Closing] to finance the acquisition, construction or improvement of any fixed or capital assets, including Capitalized Lease Obligations and purchase money obligations for tangible property, (ii) any Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with the acquisition of any such assets or secured by a Permitted Acquisition)Lien on any such assets prior to the acquisition thereof; provided[,] that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvements or extensions, renewals, and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (immediately prior to giving effect to such extension, renewal or replacement) or shorten the maturity or the weighted average life thereof; provided, howeverfurther, that [that](i) the aggregate principal amount of all such Indebtedness, does not [exceed $60,000,000 at any time outstanding and that]at any time exceed three percent (3.0%) of the aggregate book value of the total assets of the Company and its Subsidiaries determined on a consolidated basis as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered, and (ii) the aggregate principal amount of such Indebtedness incurred by Foreign Subsidiaries under this clause (c), together with the principal amount of Indebtedness permitted to be incurred by this subsection Foreign Subsidiaries under clause (e) below, does not at any time exceed 20% of the aggregate book value of the total assets of the Company and its Subsidiaries measured on a consolidated basis in accordance with GAAP as of the end of the immediately preceding fiscal quarter for which financial statements have been delivered (giving [pro forma ]effect to [such acquisition]any Acquisition financed with such Indebtedness on a Pro Forma Basis);
(d) at Guarantees by the Company of Indebtedness of any one time outstanding shall not exceed $200,000,000 other Obligor and Guarantees by any Obligor of Indebtedness of the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) Company or 7.02(k)any other Obligor;
(e) renewals, extensions, refinancings and refundings unsecured Indebtedness of Indebtedness permitted by clause Foreign Subsidiaries (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all whether such Indebtedness (other than represents loans made by the Indebtedness described in clause (iii) Company or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit or by a third party) so long as after giving effect to the incurrence of such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;on a [pro forma basis]
Appears in 2 contracts
Sources: Note Purchase Agreement (Aaron's Inc), Note Purchase Agreement (Aaron's Inc)
Indebtedness. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly incur, create, incurassume, assume or otherwise become or remain directly or indirectly be liable in any manner with respect to, or permit to exist, any Indebtedness except for the followingobligations or indebtedness, except:
(a) Indebtedness under the Loan DocumentsObligations;
(b) Indebtedness outstanding trade obligations and normal accruals in the ordinary course of business not yet due and payable, or with respect to which Borrower or any of its Subsidiaries is contesting in good faith the amount or validity thereof by appropriate proceedings diligently pursued and available to Borrower or any of its Subsidiaries and with respect to which adequate reserves have been set aside on the date hereof and listed on Schedule 7.01its books;
(c) Guaranty Obligations purchase money indebtedness (including Capital Leases) to the extent not incurred or secured by the Borrower or liens (including Capital Leases) in violation of any Guarantor in respect other provision of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below)Agreement;
(id) Indebtedness in respect of Capital Lease Obligations rental and purchase money obligations for tangible property, (ii) Indebtedness in respect of other payments under operating leases which are not sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)transactions;
(e) renewals, extensions, refinancings and refundings indebtedness of Indebtedness permitted by clause (b) Borrower or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that its Subsidiaries entered into in the aggregate are not materially less favorable ordinary course of business pursuant to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedany Bank Product;
(f) Indebtedness arising from intercompany loans indebtedness in respect of performance, surety or appeal bonds (including with respect to those described on Schedule 9.9 to the Information Certificate), workers’ compensation claims, unemployment insurance, health, disability and other employee benefits or property, casualty or liability insurance (including any reimbursement obligations in connection with the foregoing), in each case, incurred in the ordinary course of business; provided, that, upon Lender’s request, Lender shall have received true, correct and complete copies of all material agreements, documents or instruments evidencing or otherwise related to such indebtedness, as duly authorized, executed and delivered by the parties thereto;
(g) the Maple Guarantee;
(h) indebtedness described on Schedule 9.9 to the Information Certificate; and
(i) from the guaranty by Borrower to any Guarantor; (ii) from any Subsidiary and Maple of the Borrower indebtedness owing with respect to the Borrower New Notes and the New Notes Indenture and any refinancing, refunding, extensions, renewals, issuances or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior replacements thereof to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrowerextent permitted by Section 9.17(g) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;hereof.
Appears in 2 contracts
Sources: Loan and Security Agreement (Vector Group LTD), Loan and Security Agreement (Vector Group LTD)
Indebtedness. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the followingIndebtedness, except:
(a) Permitted Subordinated Indebtedness;
(b) Indebtedness of the Loan Parties under the Loan Documents;
(bc) Indebtedness outstanding on the date hereof Closing Date and listed on Schedule 7.017.03 and any Permitted Refinancing thereof;
(cd) Guaranty Obligations incurred Guarantees by the Borrower or any Guarantor a Restricted Company in respect of Indebtedness of the Borrower another Restricted Company otherwise permitted hereunder; provided that (x) no Guarantee by any Restricted Subsidiary of any Permitted Subordinated Indebtedness (or any Guarantor Permitted Refinancing thereof) shall be permitted unless such Restricted Subsidiary shall have also provided a Guarantee of the Obligations substantially on the terms set forth in the Subsidiary Guarantee in accordance with Section 6.12 and (y) if the Indebtedness 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 Indebtedness;
(e) Indebtedness of a Restricted Company that is constitutes an Investment permitted by this Section 7.01 (other than clause (g) below)7.02;
(i) Indebtedness incurred in the ordinary course of business by the Exchange Companies in connection with "1031 exchange" transactions under Section 1031 of the Code (or regulations promulgated thereunder, including Revenue Procedure 2000-37) that is limited in recourse to the properties (real or personal) which are the subject of such "1031 exchange" transactions and (ii) Indebtedness incurred in the ordinary course of business by the Leasing Companies in connection with their leasing business that is limited in recourse to the assets being financed by such Indebtedness (collectively, the "SPECIFIED NON-RECOURSE INDEBTEDNESS");
(g) Indebtedness of Foreign Subsidiaries of the Company;
(h) Indebtedness of a Restricted Company assumed in connection with any Permitted Acquisition and not incurred in contemplation thereof, and any Permitted Refinancing thereof;
(i) Indebtedness incurred by any Restricted Company representing deferred compensation to employees of a Restricted Company incurred in the ordinary course of business;
(j) Indebtedness consisting of promissory notes issued by any Restricted Company to future, present or former directors, officers, members of management, employees or consultants of the Company or any of its Subsidiaries or their respective estates, heirs, family members, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Company permitted by Section 7.06;
(k) Indebtedness incurred by a Restricted Company in a Permitted Acquisition or Disposition under agreements providing for indemnification, the adjustment of the purchase price or similar adjustments;
(l) Indebtedness consisting of obligations of any Restricted Company under deferred compensation or other similar arrangements incurred by such Person in connection with Permitted Acquisitions;
(m) Indebtedness (including intercompany Indebtedness among the Consolidated Companies) in respect of Capital Lease Obligations and purchase money the Cash Management Practices;
(n) obligations for tangible of the Consolidated Companies with respect to liabilities arising from the Vault Cash Operations;
(o) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations of a Restricted Company contained in supply arrangements, in each case, in the ordinary course of business;
(p) Indebtedness incurred by a Restricted Company constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to such similar reimbursement-type obligations; provided that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(iiq) obligations in respect of bid, performance, stay, customs, appeal and surety bonds and performance and completion guarantees provided by a Restricted Company or obligations in respect of letters of credit related thereto, in each case in the ordinary course of business or consistent with past practice;
(r) Guarantees by the Company of Indebtedness permitted under this Section 7.03;
(s) Indebtedness in respect of sale Swap Contracts entered into in the ordinary course of business and leaseback not for speculative purposes;
(t) Indebtedness in respect of any letter of credit or bankers' acceptance supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(u) Indebtedness incurred in the ordinary course of business in connection with relocation service transactions permitted and secured by Section 7.13 the properties which are the subject of such transactions;
(v) Indebtedness incurred in connection with a receivables securitization transaction involving the Restricted Companies and a Securitization Vehicle (a "SECURITIZATION FINANCING"); provided that (i) such Indebtedness when incurred shall not exceed 100% of the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition, (ii) such Indebtedness is created and any Lien attaches to such property concurrently with or within forty-five (45) days of the acquisition thereof, and (iii) such Lien does not at any time encumber any property other secured than the property financed by such Indebtedness;
(w) Indebtedness (including i) of the type described in clause (e) of the definition thereof subject to Liens permitted under Section 7.01 or (ii) secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness Liens permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in under Sections 7.02(d7.01(e)(ii), 7.02(e) 7.01(e)(iii), 7.01(f), or 7.02(k7.01(r);
(ex) renewals, extensions, refinancings and refundings other Indebtedness of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is Restricted Companies in an aggregate principal amount not to exceed the greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; 10% of Total Consolidated Assets and (ii) from $300,000,000 at any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), time outstanding;
(y) all such Indebtedness premiums (other than the Indebtedness if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (i), a) through (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (ivx) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;
Appears in 2 contracts
Sources: Credit Agreement (Fidelity National Information Services, Inc.), Credit Agreement (Fidelity National Information Services, Inc.)
Indebtedness. The Borrower shall will not, and shall not nor will it permit any of its Restricted Subsidiaries to, directly or indirectly contract, create, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under the Loan DocumentsObligations of the Borrower and its Restricted Subsidiaries owing to the Administrative Agent and the Lenders (and their Affiliates);
(b) intercompany Indebtedness outstanding on among the date hereof Borrower and listed on Schedule 7.01its Restricted Subsidiaries to the extent permitted by Section 6.15;
(c) Guaranty (i) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, including any such Indebtedness assumed in connection with a Permitted Acquisition, (ii) Capitalized Lease Obligations of the Borrower and its Restricted Subsidiaries, including any such obligations assumed in connection with a Permitted Acquisition, and (iii) Indebtedness incurred to finance the acquisition, construction or improvement of any fixed or capital assets (“Project Indebtedness”), including any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on such assets before the acquisition thereof, and any refinancings of any such Project Indebtedness; provided that, with respect to Project Indebtedness permitted by clause (iii) of this Section, (w) such Project Indebtedness is initially incurred before or within 180 days after such acquisition or the completion of such construction or improvement, (x) such Project Indebtedness shall be secured only by the Borrower Property acquired, constructed or improved in connection with the incurrence of such Project Indebtedness, (y) with respect to such Project Indebtedness assumed in connection with a Permitted Acquisition, the amount of such Project Indebtedness shall not exceed 60% of the Total Consideration paid in connection with such Permitted Acquisition and (z) with respect to Project Indebtedness incurred to finance the acquisition of any fixed or capital assets, such Project Indebtedness shall constitute not less than 80% of the aggregate consideration paid with respect to such Property;
(d) customer advances for prepayment of ore sales;
(e) Indebtedness under the Portman Limited Facility in an aggregate principal amount not to exceed at any time outstanding the U.S. Dollar Equivalent of $120,000,000 Australian Dollars;
(f) Hedging Liability to any Person, in all cases incurred in the ordinary course of business and not for speculative purposes;
(g) Indebtedness in respect of bid, performance, surety, reclamation or other similar bonds or guaranties in the ordinary course of business, or any Guarantor similar financial assurance obligations under Environmental Laws or worker’s compensation Laws or with respect to self-insurance obligations, including guarantees or obligations with respect to letters of credit supporting such obligations (in each case other than for an obligation for money borrowed);
(h) Contingent Obligations in respect of Indebtedness of the Borrower or any Guarantor that is otherwise permitted by under this Section 7.01 (other than clause (g) below)6.12;
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition)any sale/leaseback transaction permitted pursuant to Section 6.14(e) hereof;
(j) Indebtedness of Non-Guarantor Subsidiaries not otherwise permitted by this Section; provided, however, provided that the aggregate principal amount at any time outstanding of all such Indebtedness plus Indebtedness of the Borrower and all Restricted Subsidiaries secured by Liens shall not exceed 20% of Net Worth as measured as of the end of the most recently completed fiscal quarter prior to the incurrence of such Indebtedness;
(k) unsecured Indebtedness of Non-Guarantor Subsidiaries, not otherwise permitted under clause (j); provided that the ratio of Total Funded Debt to EBITDA of the Borrower and all Restricted Subsidiaries, after giving pro forma effect to the incurrence of such Indebtedness is less than 2.50 to 1.00, as measured as of the end of the most recently completed fiscal quarter prior to the incurrence of such Indebtedness;
(l) Indebtedness pursuant to the senior secured bonds issued by the Target pursuant to that Trust Indenture, dated as of January 29, 2010, between the Target and Computershare Trust Company of Canada;
(m) Indebtedness (i) pursuant to the convertible debentures issued by the Target pursuant to that Trust Indenture, dated as of November 29, 2010, between the Target and Equity Financial Trust Company and (ii) under the SK Credit Agreement, dated as of December 24, 2009, between the Target and SK Networks Co. Ltd.; and
(n) unsecured Indebtedness of the Borrower and the Guarantors not otherwise permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;Section.
Appears in 2 contracts
Sources: Term Loan Agreement (Cliffs Natural Resources Inc.), Bridge Credit Agreement (Cliffs Natural Resources Inc.)
Indebtedness. The (a) Neither the Borrower shall not, and shall not permit nor any of its the Subsidiaries to, shall directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, the incurrence of which would cause the Borrower to violate the financial covenant set forth in Section 6.12 (giving effect to such incurrence of Indebtedness except for on a pro forma basis as if such incurrence (and the following:
application of any proceeds therefrom, including the repayment of any Indebtedness with the proceeds of the Indebtedness being so incurred) occurred on the first day of the applicable four fiscal quarter period ended immediately prior to such incurrence) to the extent such Section is in effect as of the date of such determination (aor would be in effect after giving effect to such incurrence of Indebtedness). It is understood and agreed that any Indebtedness incurred under Section 6.01(a) of the Existing Credit Agreement, to the extent such Indebtedness under was, at the Loan Documents;time of such incurrence, permitted to be so incurred thereunder, shall be deemed to have been incurred under, and in compliance with, this Section 6.01(a) as of the Restatement Effective Date.
(b) Neither the Borrower nor any of its Subsidiaries shall at any time permit the sum, without duplication, of (i) all Indebtedness outstanding on of the date hereof Borrower and listed on Schedule 7.01;the Subsidiaries secured by Liens plus (ii) all Indebtedness of the Subsidiaries (including Subsidiaries acquired after the Effective Date) to exceed $500,000,000 at any time outstanding.
(c) Guaranty Notwithstanding anything to the contrary in paragraph (b) of this Section 6.01, the following Indebtedness of the Borrower and the Subsidiaries (including Subsidiaries acquired after the Effective Date) shall not be prohibited by Section 6.01(b) and shall not be included in calculating the levels of Indebtedness permitted under Section 6.01(b) regardless of whether such Indebtedness is secured as permitted by Section 6.02:
(i) (x) Indebtedness created under the Loan Documents and (y) other Indebtedness existing on the Effective Date and set forth in Schedule 6.01 and extensions, renewals and replacements of any such Indebtedness, provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the original Indebtedness being extended, renewed or replaced (other than in the case of Guarantees otherwise permitted by clause (iii) of this Section 6.01(c)), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), (C) shall not have an earlier maturity date or shorter weighted average life to maturity than the Indebtedness being extended, renewed or replaced and (D) shall be subordinated to the Obligations incurred by to the same extent as the Indebtedness being extended, renewed or replaced, if applicable;
(ii) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any Guarantor in respect other Subsidiary, provided that (A) Indebtedness of any Subsidiary (other than a Loan Party) owing to any Loan Party shall be subject to Section 6.04 and (B) Indebtedness of the Borrower to any Subsidiary or of any other Loan Party to any other Subsidiary (other than a Loan Party) shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(iii) Guarantees by the Borrower of Indebtedness of any Subsidiary, and by any Subsidiary of Indebtedness of the Borrower or any Guarantor other Subsidiary, provided that is permitted (A) the Indebtedness so Guaranteed shall not be prohibited by this Section 7.01 (other than clause (gc)(ii)) below)and (B) Guarantees by any Loan Party of Indebtedness of any Subsidiary (other than a Loan Party) shall be subject to Section 6.04;
(iA) Indebtedness in respect of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and purchase money obligations for tangible property, (ii) any Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or that is assumed by the Borrower and its Subsidiaries or any Subsidiary or that remains Indebtedness of an acquired entity in connection with the acquisition of any such assets or secured by a Permitted AcquisitionLien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, provided that the aggregate principal amount of all such Indebtedness permitted by this subsection clause (div) at any one time outstanding incurred after the Effective Date shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)100,000,000 at any time outstanding;
(ev) renewals, extensions, refinancings and refundings Indebtedness in respect of Indebtedness Swap Agreements permitted by clause Section 6.06; and
(bvi) Indebtedness in respect of any financing or (d) above capital lease financing relating to the Borrower’s or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is the Subsidiaries’ sea vessels in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and to exceed $75,000,000 at any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Usg Corp), Credit Agreement (Usg Corp)
Indebtedness. The Borrower shall Such Obligor will not, and shall will not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or otherwise become or remain permit to exist any Indebtedness, whether directly or indirectly liable with respect to any Indebtedness except for the followingindirectly, except:
(a) Indebtedness under the Loan DocumentsObligations;
(b) Indebtedness outstanding on owing under the date hereof Non-Convertible Credit Facility Loan Documents and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition)Refinancings thereof; provided, however, provided that the aggregate outstanding principal amount of all such Indebtedness permitted by this subsection shall not exceed at any time the sum of $35,000,000 (the “First Lien Cap”) and the amount of interest thereon compounded and added to the principal thereof;
(c) Indebtedness owing under the Subordinated Junior Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $130,000,000 and the amount of interest thereon compounded and added to the principal thereof; provided further that any such replacement Indebtedness shall be subject to an intercreditor agreement in form and substance satisfactory to the Lenders and shall mature after the Stated Maturity Date;
(d) at any one time outstanding shall not exceed $200,000,000 Indebtedness existing on the date hereof and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d)Schedule 9.01; provided that, 7.02(e) or 7.02(k)in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to Administrative Agent;
(e) renewalsaccounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of such Obligor’s or any of its Subsidiaries’ business in accordance with customary terms and paid within the specified time, extensions, refinancings unless contested in good faith by appropriate proceedings and refundings reserved for in accordance with GAAP;
(f) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(g) Indebtedness of any Obligor to any other Obligor;
(h) Guarantees by any Obligor of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that of any such renewal, extension, refinancing or refunding is other Obligor in an aggregate principal amount not greater than exceeding $1,000,000 (or the Equivalent Amount in other currencies) at any time;
(i) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,000,000 (plus reasonable fees, expenses and or the Equivalent Amount in other currencies) at any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedtime;
(fj) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments obligations of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower Obligor or to any of its Subsidiaries (i) for whose benefit such payment is made; providedindemnification, further thatadjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in the case of Indebtedness described each case, in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is connection with transactions permitted under Section 7.039.03(e);
(k) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(l) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(m) unsecured Indebtedness of any Obligor not otherwise described in this Section 9.01, in an aggregate amount not to exceed at any time $5,000,000; provided that Borrower shall give the Administrative Agent written notice prior to the incurrence of any such Indebtedness under this Section 9.01(m) owing to any director or executive officer of Borrower or any of its Affiliates; and
(n) Indebtedness approved in advance in writing by the Required Lenders.
Appears in 2 contracts
Sources: Senior Secured Convertible Credit Agreement (Kadmon Holdings, LLC), Senior Secured Convertible Credit Agreement (Kadmon Holdings, LLC)
Indebtedness. The Borrower shall Loan Parties will not, and shall will not permit any of its their Subsidiaries to, directly or indirectly indirectly, at any time create, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the followingother than:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding existing on the date hereof Closing Date and listed on set forth in Schedule 7.018.1(b), and any Refinancing Indebtedness in respect of such Indebtedness;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital including Capitalized Lease Obligations and purchase money obligations for tangible Indebtedness) to finance all or any part of the purchase, lease, construction, installment, repair or improvement of property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) plant or equipment or other secured Indebtedness (including secured Indebtedness incurred fixed or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is capital assets in an aggregate principal amount not to exceed the greater than the principal amount of (plus reasonable feesi) $15,000,000 and (ii) an amount equal to 3.0% of Consolidated Tangible Assets at any time outstanding; provided that such Indebtedness is incurred within 90 days after the purchase, expenses and any premium incurred in connection with lease, construction, installation, repair or improvement of the renewal, extension, refinancing or refunding property that is the subject of such Indebtedness), ;
(d) Bank Product Obligations (other than arising under Hedging Agreements) and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedunder Permitted Hedging Agreements;
(e) Indebtedness comprised of Permitted Intercompany Advances;
(f) Indebtedness arising from intercompany loans in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, provided in the ordinary course of business;
(g) Guarantees of Indebtedness of the Loan Parties or their Subsidiaries permitted to be incurred under this Agreement; provided that if the Indebtedness 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 Indebtedness;
(h) Acquired Indebtedness in an amount not to exceed $15,000,000 at any one time;
(i) from endorsement of negotiable instruments for deposit or collection in the Borrower to ordinary course of business;
(j) Indebtedness incurred in the ordinary course of business in respect of
(i) overdraft facilities, employee credit card programs, netting services, automatic clearinghouse arrangements and other cash management and similar arrangements, and in connection with securities and commodities arising in connection with the acquisition or disposition of Permitted Investments and not any Guarantor; obligation in connection with margin financing, (ii) from up to $5,000,000 in the aggregate of any Subsidiary bankers’ acceptance, bank guarantees or letter of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoffcredit facilities, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt andeach case, in the case ordinary course of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;business,
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Team Inc), Term Loan Credit Agreement (Team Inc)
Indebtedness. The Borrower shall notAs to the Subsidiaries only, and shall not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under of the Loan DocumentsSubsidiaries existing as of the Closing Date as referenced in the financial statements referred to in Section 5.05 and renewals, refinancings or extensions thereof in a principal amount not in excess of that outstanding as of the date of such renewal, refinancing or extension;
(b) Indebtedness of the Subsidiaries incurred after the Closing Date consisting of capital leases or Indebtedness incurred to provide all or a portion of the purchase price or cost of construction of an asset provided that (i) such Indebtedness when incurred shall not exceed the purchase price or cost of construction of such asset; (ii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding on thereon at the date hereof time of such refinancing; and listed on Schedule 7.01(iii) the total amount of all such Indebtedness shall not exceed $50,000,000 at any time outstanding;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of unsecured intercompany Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by among the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection Subsidiaries;
(d) at Indebtedness and obligations owing under any one time Swap Contracts, provided that (i) such obligations are (or were) entered into by such 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 not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding shall not exceed $200,000,000 and transactions to the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)defaulting party;
(e) renewalsIndebtedness and obligations of the Subsidiaries owing under documentary letters of credit for the purchase of goods or other merchandise (but not under standby, extensions, refinancings and refundings direct pay or other letters of Indebtedness permitted by clause (bcredit) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedgenerally;
(f) Indebtedness arising from intercompany loans of the Subsidiaries incurred in connection with acquisitions (including Indebtedness of Subsidiaries incurred or assumed in connection with joint ventures) provided that (i) from such Indebtedness when incurred shall not exceed the Borrower to any Guarantor; purchase price for such acquisition (or the total capital (equity and debt) of a joint venture) and (ii) from if the aggregate amount of any Subsidiary such Indebtedness (whether anticipated to be funded at one time or over a series of fundings) exceeds $100,000,000, then (A) the Borrower to shall give the Borrower or any Guarantor; Administrative Agent prior written notice of such Indebtedness and (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (vB) prior to the Spinoff, from MII or incurrence of any Affiliate of MII (other than such Indebtedness the Borrower shall have provided to the Administrative Agent such evidence as the Administrative Agent may reasonably request demonstrating pro forma covenant compliance and the maintenance of an investment grade Debt Rating from S&P and ▇▇▇▇▇’▇ (defined for purposes hereof as BBB- or a Subsidiary better by S&P and Baa3 or better by ▇▇▇▇▇’▇); and
(g) other non-acquisition-related Indebtedness of the Borrower) to Subsidiaries which does not exceed 5% of Total Assets in the aggregate at any time outstanding (it being understood that delivery of a Compliance Certificate shall only required as of each fiscal quarter end of the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral AgreementSection 6.02(b), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;.
Appears in 2 contracts
Sources: Credit Agreement (Sonoco Products Co), Credit Agreement (Sonoco Products Co)
Indebtedness. The Borrower shall notWithout Bank’s prior written consent, Guarantor will not incur any Indebtedness other than: (i) the Additional Beacon Noteholder Subordinated Debt, the December 2011 Beacon Noteholder Subordinated Debt, and shall not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any the other Indebtedness except for set forth on Schedule I; (ii) the following:
Guaranteed Obligations; (aiii) Indebtedness (A) which is unsecured, (B) which is not for borrowed money, (C) which has been incurred in the ordinary course of Guarantor’s or its Subsidiaries’ business, (D) which is not otherwise prohibited under any provision of this Guaranty, and (E) the Loan Documents;
nonpayment of or other default under which would not have a Material Adverse Effect; (b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(iiv) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible propertytaxes, assessments or governmental charges to the extent that payment thereof shall not at the time be required to be made; (iiv) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 judgments or awards which (1) have been vacated, discharged or stayed within 10 days of the entry thereof or have been in force for less than the applicable appeal period so long as execution is not levied thereunder (or in respect of which (A) Guarantor shall at the time in good faith be prosecuting an appeal or proceedings for review and (iiiB) other secured Indebtedness a stay of execution shall have been obtained pending such appeal or review), and (including secured Indebtedness incurred 2) (A) are not, in the aggregate, in an amount in excess of $100,000 (and individually in excess of $50,000) of any available insurance coverage, as determined by Bank in its discretion exercised in good faith, in effect to satisfy such judgments or assumed by award for which the Borrower insurer has admitted in writing its liability for the full amount thereof and its Subsidiaries in connection with (B) do not have a Permitted AcquisitionMaterial Adverse Effect (regardless of monetary amount or insurance coverage); provided, however, that the aggregate principal amount of all (vi) Indebtedness under capitalized leases or purchase money financing if (1) such Indebtedness permitted is not secured by this subsection any of the Loan Collateral other than the property so acquired and any identifiable proceeds, (d2) at any one time outstanding shall not exceed $200,000,000 and the Liens securing relating to such Indebtedness shall be within do not extend to or cover any property of Guarantor other than the limitations set forth in Sections 7.02(d)property so acquired and any identifiable proceeds therefrom, 7.02(e(3) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of such capitalized lease or purchase money Indebtedness will not, at the time of the incurrence thereof, exceed the value of the property so acquired; and (plus reasonable fees, expenses and any premium incurred in connection with 4) the renewal, extension, refinancing or refunding total amount of such IndebtednessIndebtedness during any period does not exceed $300,000 for Guarantor in any fiscal year; and (vii) Indebtedness representing reimbursement obligations and other liabilities of Guarantor with respect to surety bonds (whether payment, performance or otherwise), and is on terms that letters of credit, banker’s acceptances, drafts or similar documents or instruments issued for Guarantor’s account in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any ordinary course of Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower’s business; provided, however, that (xno Indebtedness otherwise permitted under this Section 3.2(a) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) to be incurred shall be evidenced by promissory notes and all such notes shall permitted to be subject to a first priority Lien pursuant incurred if, after giving effect to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement)incurrence thereof, (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) any Event of Default shall have occurred and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;continuing.
Appears in 2 contracts
Sources: Guaranty (EQM Technologies & Energy, Inc.), Guaranty (EQM Technologies & Energy, Inc.)
Indebtedness. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness of the Loan Parties under the Loan Documents;
(b) Indebtedness outstanding on the date hereof Closing Date and listed on Schedule 7.017.03(b) and any Permitted Refinancing thereof;
(c) Guaranty Obligations incurred Guarantees by the Borrower or any Guarantor and the Restricted Subsidiaries in respect of Indebtedness of the Borrower or any Guarantor Restricted Subsidiary otherwise permitted hereunder; provided that if the Indebtedness being Guaranteed is permitted by this Section 7.01 (other than clause (g) below)subordinated to the Obligations in Lien priority and/or right of payment, such Guarantee shall be subordinated to the Guarantee of the Obligations in Lien priority and/or right of payment, as the case may be, on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness and/or Lien securing the same;
(d) Indebtedness of the Borrower or any Restricted Subsidiary owing to the Borrower or any other Restricted Subsidiary to the extent constituting an Investment expressly permitted by Section 7.02; provided that all such Indebtedness shall be evidenced by an Intercompany Note pledged to the Administrative Agent for the benefit of the Secured Parties in accordance with the Collateral Documents and Section 6.11;
(e) (i) so long as immediately after giving effect to the incurrence of any such Indebtedness, no Event of Default has occurred and is continuing and the Borrower and the Restricted Subsidiaries will be in Pro Forma Compliance with the covenants set forth in Section 7.11, Capitalized Lease Indebtedness in respect and other Indebtedness (including Capitalized Leases) financing the acquisition, construction, repair, replacement or improvement of Capital Lease Obligations fixed or capital assets; provided that such Indebtedness is incurred concurrently with or within two hundred seventy (270) days after the applicable acquisition, construction, repair, replacement or improvement, and purchase money obligations for tangible property, (ii) any Permitted Refinancing of any Indebtedness set forth in respect of sale and leaseback transactions permitted by Section 7.13 and the immediately preceding clause (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisitioni); provided, howeverfurther, that the aggregate principal amount of all such Indebtedness permitted by under this subsection Section 7.03(e) (d) at any one time outstanding including all Permitted Refinancing Indebtedness described in preceding clause (ii)), shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that 25,000,000 at any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedtime outstanding;
(f) Indebtedness arising from intercompany loans in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks of the Borrower or its Restricted Subsidiaries incurred in the ordinary course of business and not for speculative purposes, including, without limitation, all Swap Contracts required pursuant to Section 6.17;
(g) Indebtedness representing deferred compensation to employees of the Borrower and the Restricted Subsidiaries incurred in the ordinary course of business;
(h) Indebtedness consisting of promissory notes issued by the Borrower to current or former officers, directors, managers and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdco or the Borrower permitted by Section 7.06(e); provided that (i) from such Indebtedness shall be subordinated in right of payment to the Borrower Obligations on terms reasonably satisfactory to any Guarantor; the Administrative Agent (it being understood that, subject to the dollar limitation described below, such subordination provisions shall permit the payment of interest and principal in cash if no Event of Default has occurred and is continuing) and (ii) from any Subsidiary the aggregate amount of all cash payments (whether principal or interest) made by the Borrower in respect of such notes since the Closing Date, when combined with the aggregate amount of Restricted Payments made pursuant to Section 7.06(e) since the Closing Date, shall not exceed $1,000,000;
(i) Indebtedness incurred by the Borrower or the Restricted Subsidiaries in (i) a Permitted Acquisition, (ii) any Guarantor; other Investment expressly permitted hereunder or (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt andDisposition, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty each of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in foregoing clauses (i), (ii) and (iii), constituting customary indemnification obligations or customary obligations in respect of purchase price or other similar adjustments;
(j) Indebtedness consisting of obligations of the Borrower or the Restricted Subsidiaries under deferred compensation or other similar arrangements incurred by such Person in connection with Permitted Acquisitions or any other Investment expressly permitted hereunder;
(k) Cash Management Obligations and other Indebtedness in respect of netting services, overdraft protections and similar arrangements, in each case, in connection with deposit accounts and obligations under the WF Indemnification Agreement;
(l) Indebtedness 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;
(m) Indebtedness incurred by the Borrower or any of the Restricted Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued or created in the ordinary course of business in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims; provided that any reimbursement obligations in respect thereof are reimbursed within 30 days following the incurrence thereof;
(n) obligations in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by the Borrower or any of the Restricted Subsidiaries or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent with past practice;
(o) additional Indebtedness of the Borrower and its Restricted Subsidiaries in an aggregate principal amount not to exceed $50,000,000 at any time outstanding;
(p) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest (other than pay-in-kind interest or other interest capitalized as principal) on obligations described in clauses (a) through (o) above;
(q) [reserved];
(r) Indebtedness of the Borrower under the LandCo Support Agreement;
(s) unsecured Indebtedness of Holdco issued to any BlockerCo and/or a holder (a “BlockerCo Equityholder”) of Equity Interests in any BlockerCo solely in connection with (x) the redemption of Equity Interests in such BlockerCo held by such BlockerCo Equityholder and (y) the related redemption of Equity Interests in Holdco by such BlockerCo, in each case due to such BlockerCo Equityholder’s breach of a tax representation or a finding of unsuitability with respect to such BlockerCo Equityholder; provided, that (i) such Indebtedness does not mature, and is not mandatorily redeemable, in whole or in part, or required to be repurchased or reacquired, in whole or in part, prior to the date that that is ninety-one (91) days after the eight anniversary of the Closing Date, (ii) no interest thereon shall be payable in cash prior to the maturity thereof, (iii) such Indebtedness shall have no financial maintenance covenants and no covenants that apply to the Borrower or any Subsidiary thereof or that impose limitations on Holdco’s ability to guarantee or pledge assets to secure the Obligations, (iv) aboveare not guaranteed by any other Loan Party or any Subsidiary thereof and (v) are not convertible or exchangeable except into common equity of Holdco or such BlockerCo.;
(t) unsecured non-interest-bearing Indebtedness of Holdco (such Indebtedness, “Holdco Convertible Indebtedness”) owing to a participant in the Propco Rights Offering (as defined in the Plan of Reorganization) maturing no later than 180 days following the Closing Date in an outstanding principal amount equal to such participant’s required contribution amount with respect to the Propco Rights Offering;
(u) unsecured Indebtedness of Holdco owing to any holder of Equity Interests of Holdco and issued pursuant to Section 7.19 of the Equityholders Agreement (such Indebtedness, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;“Cure Note Indebtedness”); and
(v) Exchange Securities and any Permitted Refinancing thereof.
Appears in 2 contracts
Sources: Credit Agreement (Station Casinos LLC), Credit Agreement (Station Casinos LLC)
Indebtedness. The Subject to the last sentence of this Section 6.01, the Borrower shall will not, and shall not nor will it permit any of its Subsidiaries the Subsidiary Guarantors to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness created hereunder or under the any other Loan DocumentsDocument;
(b) Secured Longer-Term Indebtedness and Unsecured Longer-Term Indebtedness so long as (i) no Default exists at the time of the incurrence thereof, (ii) the aggregate amount of such Secured Longer-Term Indebtedness and Unsecured Longer-Term Indebtedness, taken together with other then-outstanding on Indebtedness, does not exceed the date hereof amount required to comply with the provisions of Sections 6.07(c) and listed on Schedule 7.01(d), and (iii) prior to and immediately after giving effect to the incurrence of any Secured Longer-Term Indebtedness, the Covered Debt Amount does not or would not exceed the Borrowing Base then in effect;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below)Other Permitted Indebtedness;
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Guarantees of Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)otherwise permitted hereunder;
(e) renewalsIndebtedness of any Obligor owing to any other Obligor or, extensions, refinancings if such Indebtedness is subject to subordination terms and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, conditions that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable satisfactory to the Borrower or such SubsidiaryAdministrative Agent, including as to weighted average maturity, than any other Subsidiary of the Indebtedness being renewed, extended, refinanced or refundedBorrower;
(f) Indebtedness of Financing Subsidiaries;
(g) repurchase obligations arising from intercompany loans in the ordinary course of business with respect to U.S. Government Securities;
(h) obligations payable to clearing agencies, brokers or dealers in connection with the purchase or sale of securities in the ordinary course of business;
(i) from Secured Shorter-Term Indebtedness so long as (i) no Default exists at the Borrower to any Guarantor; time of the incurrence thereof, (ii) from any Subsidiary the aggregate amount (determined at the time of the Borrower to incurrence of such Indebtedness) of such Indebtedness does not exceed the Borrower or any Guarantor; greater of (A) $20,000,000 and (B) 5% of Shareholders’ Equity, (iii) from any Subsidiary the aggregate amount of such Indebtedness, taken together with other then-outstanding Indebtedness, does not exceed the Borrower that is not a Loan Party amount required to any other Subsidiary comply with the provisions of the Borrower that is not a Loan Party; Sections 6.07(c) and (d), and (iv) from prior to and immediately after giving effect to the Borrower incurrence of any such Indebtedness, the Covered Debt Amount does not or any Guarantor would not exceed the Borrowing Base then in effect;
(j) obligations (including Guarantees) in respect of Standard Securitization Undertakings;
(k) Permitted SBIC Guarantees;
(l) Indebtedness incurred pursuant to any Subsidiary the 2024 Notes, the 2026 Notes, the 2028 Notes or the 2029 Notes;
(m) Unsecured Shorter-Term Indebtedness (other than Special Unsecured Indebtedness that would otherwise constitute Unsecured Shorter-Term Indebtedness) so long as (i) no Default exists at the time of the Borrower that is incurrence thereof, (ii) the aggregate amount (determined at the time of the incurrence of such Indebtedness) of such Indebtedness does not a Guarantor; or exceed $500,000,000, (iii) the aggregate amount (determined at the time of the incurrence of such Indebtedness) of such Indebtedness, taken together with then-outstanding Special Unsecured Indebtedness incurred pursuant to Section 6.01(n), does not exceed $1,000,000,000, (iv) the aggregate amount of such Indebtedness, taken together with other then-outstanding Indebtedness, does not exceed the amount required to comply with the provisions of Sections 6.07(c) and (d), and (v) prior to and immediately after giving effect to the Spinoffincurrence of any such Indebtedness, from MII the Covered Debt Amount does not or any Affiliate of MII would not exceed the Borrowing Base then in effect;
(other than n) Special Unsecured Indebtedness so long as (i) no Default exists at the Borrower or a Subsidiary time of the Borrowerincurrence thereof, (ii) to the Borrower or any Subsidiary aggregate amount (determined at the time of the Borrower; provided, however, that (xincurrence of such Indebtedness) all of such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i)does not exceed $1,000,000,000, (iii) and the aggregate amount (determined at the time of the incurrence of such Indebtedness) of such Indebtedness, taken together with then-outstanding Unsecured Shorter-Term Indebtedness incurred pursuant to Section 6.01(m), does not exceed $1,000,000,000, (iv) the aggregate amount of this clause such Indebtedness, taken together with other then-outstanding Indebtedness, does not exceed the amount required to comply with the provisions of Sections 6.07(c) and (fd)) shall be Subordinated Debt and, in the case of Indebtedness described in clause and (v) only, shall not permit any cash payments prior to and immediately after giving effect to the incurrence of any kind prior such Indebtedness, the Covered Debt Amount does not or would not exceed the Borrowing Base then in effect; and
(o) other Indebtedness not to exceed the Maturity Date, greater of (i) $25,000,000 and (zii) 5% of Shareholders’ Equity at any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;time outstanding.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Sixth Street Specialty Lending, Inc.), Senior Secured Revolving Credit Agreement (Sixth Street Specialty Lending, Inc.)
Indebtedness. The Neither the Borrower shall not, and shall not permit nor any of its Subsidiaries to, shall directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingIndebtedness, except:
(ai) Indebtedness under the Loan DocumentsObligations;
(bii) Permitted Existing Indebtedness outstanding on the date hereof and listed on Schedule 7.01Permitted Refinancing Indebtedness;
(iii) Indebtedness in respect of obligations secured by Customary Permitted Liens;
(iv) Indebtedness constituting Contingent Obligations permitted by Section 7.3(E);
(v) Indebtedness arising from intercompany loans and advances (a) from any Subsidiary to the Borrower or any wholly-owned Subsidiary or (b) from the Borrower to any wholly-owned Domestic Incorporated Subsidiary or (c) Guaranty from the Borrower to any wholly-owned Foreign Incorporated Subsidiary; provided, that if the Borrower is the obligor on such Indebtedness, such Indebtedness shall be expressly subordinate to the payment in full in cash of the Obligations; provided, further, that the aggregate of all Foreign Subsidiary Investments does not exceed the Permitted Foreign Subsidiary Investment Amount at any time;
(vi) Indebtedness in respect of Hedging Obligations permitted under Section 7.3(P);
(vii) secured or unsecured purchase money Indebtedness (including Capitalized Leases) incurred by the Borrower or any Guarantor of its Subsidiaries after the Closing Date to finance the acquisition of fixed assets or in conjunction with a Permitted Acquisition, if (1) at the time of such incurrence, no Default or Unmatured default has occurred and is continuing or would result from such incurrence, (2) such Indebtedness has a scheduled maturity and is not due on demand, (3) such Indebtedness does not exceed the lower of the fair market value or the cost of the applicable fixed assets on the date acquired, (4) such Indebtedness does not exceed $30,000,000 in the aggregate outstanding at any time, and (5) any Lien securing such Indebtedness is permitted under Section 7.3(C) (such Indebtedness being referred to herein as "PERMITTED PURCHASE MONEY INDEBTEDNESS");
(viii) Indebtedness with respect of Indebtedness of to surety, appeal and performance bonds obtained by the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below)of its Subsidiaries in the ordinary course of business;
(iix) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted incurred by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or seller in any Guarantor; (iii) from any Subsidiary Permitted Acquisition as part of the Borrower consideration therefor, provided that such Indebtedness is not a Loan Party to any other Subsidiary unsecured and, if in excess of $15,000,000 in the Borrower that aggregate, is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior subordinated to the SpinoffObligations, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) on terms reasonably acceptable to the Borrower or any Subsidiary of the BorrowerAgent; provided, however, that and
(x) all such additional unsecured Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall an aggregate amount at any time outstanding not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;exceeding $25,000,000.
Appears in 2 contracts
Sources: Credit Agreement (Schawk Inc), Credit Agreement (Schawk Inc)
Indebtedness. The Borrower shall notIncur, and shall not permit create, assume, become or be liable, directly, indirectly or contingently, in any of its Subsidiaries manner with respect to, directly or indirectly createpermit to exist, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingor liability, except:
(a) Indebtedness of Borrowers to Lenders hereunder and under the Loan DocumentsNotes, together with Indebtedness owed to Underlying Issuers with respect to Underlying Letters of Credit;
(b) Indebtedness outstanding among Borrowers and their Subsidiaries permitted by the Affiliate Subordination Agreement;
(c) the Guarantees of Affiliates, if any, required by Section 2.16;
(d) Indebtedness in respect of endorsements of negotiable instruments for collection in the ordinary course of business;
(e) Indebtedness existing on the date hereof and listed on described in Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition)hereto; provided, however, that the aggregate principal amount terms of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall not be within the limitations set forth in Sections 7.02(d), 7.02(e) modified or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is amended in an aggregate principal amount not greater than adverse respect nor shall payment thereof be modified without the principal amount prior written consent of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedRequired Lenders;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any GuarantorIndebtedness under Capital Leases; (ii) from any Subsidiary Indebtedness consisting of purchase money indebtedness incurred in the Borrower purchase of real estate, equipment and Licenses to be used in the Borrower or any GuarantorBorrowers’ businesses; and (iii) from Indebtedness arising under surety, indemnity, performance or other similar bonds posted for a Borrower relating to the construction and/or build-out of any Subsidiary Station and issued in the ordinary course of the Borrower that is not a Loan Party to business, and any other Subsidiary performance or similar bonds posted for a Borrower and issued in the ordinary course of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrowerbusiness; provided, however, that (xA) all such Indebtedness incurred by Borrowers permitted by this subsection (other f) shall not exceed $12,000,000 in the aggregate outstanding at any time, (B) not more than the $2,000,000 of Indebtedness described in clause permitted by this subsection (iiif) shall be owed to a single lender or its Affiliates, and (vC) all Indebtedness incurred under clauses (i) and (ii) of this clause subsection (f)) shall be evidenced by promissory notes and all such notes shall be subject not exceed the acquisition price of the assets acquired pursuant thereto; and
(g) Judgments against the Borrowers, not to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, exceed $250,000 in the case of Indebtedness described in clause (v) only, shall not permit aggregate at any cash payments of any kind prior to the Maturity Datetime, and discharged, satisfied or bonded in full within sixty (z60) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;days.
Appears in 2 contracts
Sources: Credit Agreement (Coconut Palm Acquisition Corp.), Credit Agreement (Coconut Palm Acquisition Corp.)
Indebtedness. The Borrower No Loan Party shall, nor shall not, and shall not it permit any of its Subsidiaries to, directly or indirectly create, incur, incur or assume or otherwise any Indebtedness; provided that any Loan Party and any of their respective Subsidiaries may incur and become or and remain directly or indirectly liable with respect to any Indebtedness except for the followingfor:
(a) subject, in the case of Combined Recourse Indebtedness, to the limitations set forth in clause (b) below, Indebtedness under so long as after giving effect to (and, except in the Loan Documentscircumstances described in Section 1.10(b), tested at the time of) such incurrence of such Indebtedness, BPR shall be in Pro Forma Compliance with the financial covenants set forth in Section 6.11 (after giving effect to such transaction) as of the end of the Fiscal Quarter most recently ended for which financial statements (and the related Compliance Certificate) have been delivered pursuant to Section 5.01(a) or (b), as applicable; provided that any such Indebtedness constituting Syndicated Term B Loans shall satisfy the requirements set forth in the definition of Incremental Equivalent Debt;
(b) Combined Recourse Indebtedness outstanding on in an aggregate amount not to exceed 15.0% of Value at the date hereof and listed on Schedule 7.01time of incurrence (after giving effect to such incurrence) of such Combined Recourse Indebtedness;
(c) Guaranty Obligations any Indebtedness refinancing, refunding or replacing any Indebtedness originally permitted under this Section 6.08 (in any case, including any refinancing Indebtedness incurred by the Borrower or any Guarantor in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that the principal amount of such Refinancing Indebtedness does not exceed the principal amount of the Borrower Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest and premiums (including tender premiums) thereon plus underwriting discounts and other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement, (B) an amount equal to any Guarantor that is existing commitments unutilized thereunder and (C) additional amounts permitted by to be incurred pursuant to this Section 7.01 (other than clause (g) below)6.08;
(id) Indebtedness in respect of Capital Lease the Secured Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(kAdditional Loans);
(e) renewalsIndebtedness of a Loan Party to any other Loan Party and/or any Subsidiary, extensions, refinancings and refundings Indebtedness of Indebtedness permitted by clause (b) or (d) above or this clause (e)a Subsidiary to any other Subsidiary and/or any Loan Party; provided, however, provided that any such renewal, extension, refinancing or refunding Indebtedness of any Loan Party owing to any Subsidiary that is in an aggregate principal amount not greater than a Loan Party must be unsecured and expressly subordinated to the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding Obligations of such Indebtedness), and is Loan Party pursuant to an Intercompany Note or otherwise on terms that in the aggregate are not materially less favorable reasonably acceptable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedAdministrative Agent;
(f) Indebtedness arising from intercompany loans any agreement providing for indemnification, adjustment of purchase price or similar obligations (iincluding contingent earn-out obligations) from the Borrower to incurred in connection with any Guarantor; (ii) from Disposition permitted hereunder, any Subsidiary of the Borrower to the Borrower acquisition permitted hereunder or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) consummated prior to the Spinoff, from MII Closing Date or any Affiliate other purchase of MII (other than assets or Equity Interests, and Indebtedness arising from guaranties, letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments securing the Borrower or a Subsidiary performance of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit pursuant to any such agreement;
(g) Subordinated Parent Indebtedness;
(h) Indebtedness of in respect of Banking Services and incentive, supplier finance or similar programs;
(i) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) in respect of workers compensation claims, unemployment insurance (including premiums related thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits;
(j) Indebtedness supported by any Letter of Credit;
(k) without duplication of any other Indebtedness, all premiums (if any), interest (including post-petition interest and payment is made; providedin kind interest), further thataccretion or amortization of original issue discount, fees, expenses and charges with respect to Indebtedness of the Loan Parties and their respective Subsidiaries permitted hereunder;
(l) unsecured Indebtedness consisting of promissory notes issued by the Loan Parties or any of their respective Subsidiaries to any direct or indirect stockholder of the Parent or any of its direct or indirect parents and any current or former director, officer, employee, member of management, manager or consultant of any the Loan Parties or any of their respective Subsidiaries (or their respective Immediate Family Members) to finance the purchase or redemption of the Equity Interests of BPR or the Parent or any of their direct or indirect parents, to the extent permitted pursuant to Section 6.02(a);
(m) Indebtedness representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Loan Parties and/or any of their respective Subsidiaries in the case ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any acquisition or any other Investment permitted hereby; and
(n) Indebtedness described in (to the extent not permitted pursuant to clauses (i), a) through (ii), (iii) and (ivm) above) in an aggregate principal amount not to exceed $187,500,000 at any time outstanding. For the avoidance of doubt, all Indebtedness of the Investment in Loan Parties and their respective Subsidiaries existing immediately after giving effect to the intercompany loan by the lender thereof Transactions, and any Refinancing Indebtedness thereof, is permitted under Section 7.03;permitted.
Appears in 2 contracts
Sources: Credit Agreement (Brookfield Property REIT Inc.), Credit Agreement (Brookfield Property REIT Inc.)
Indebtedness. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly indirectly, create, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under in respect of the Loan DocumentsLetters of Credit and other letters of credit issued in the ordinary course of business;
(b) Non-Recourse Real Estate Indebtedness; provided, that at the time of incurrence of such Indebtedness outstanding on the date hereof and listed on Schedule 7.01;immediately after giving effect thereto, no Default exists or could result therefrom,
(c) Guaranty Obligations incurred by Intercompany Indebtedness; provided that the Borrower aggregate outstanding amount of Intercompany Indebtedness that is owing to an Affiliate or any Guarantor in respect a Subsidiary that is not a Wholly-Owned Subsidiary, together with the aggregate outstanding amount of Indebtedness of Subsidiaries of the Borrower or type set forth in clauses (h) (provided that only the portion of Existing Indebtedness then outstanding as of the date of determination shall be included) and (i) below shall not exceed $500,000,000 at any Guarantor that is permitted by this Section 7.01 (other than clause (g) below)time;
(id) Indebtedness in respect of Capital Lease Obligations Capitalized Leases and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred fixed or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be capital assets within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(kSection 7.01(e);
(e) renewals, extensions, refinancings and refundings Indebtedness of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, any Person that any such renewal, extension, refinancing or refunding is becomes a Subsidiary of the Borrower in an aggregate principal amount not greater Acquisition, which Indebtedness is existing at the time such Person becomes a Subsidiary of the Borrower (other than the principal amount of (plus reasonable fees, expenses and any premium Indebtedness incurred solely in connection with the renewal, extension, refinancing or refunding contemplation of such Indebtedness), Person’s becoming a Subsidiary of the Borrower) and provided such Indebtedness is on terms that in the aggregate are not materially less favorable Non-Recourse Indebtedness to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedBorrower;
(f) Indebtedness arising in respect of advances or borrowings from intercompany loans the FHLBB made in the ordinary course of business;
(g) Indebtedness under Swap Contracts entered into for bona fide hedging activities (and not for speculative purposes);
(h) Existing Indebtedness; and
(i) from other Indebtedness at any time outstanding; provided, (1) that at the Borrower time of incurrence of such Indebtedness and immediately after giving effect thereto, no Default exists or could result therefrom, and (2) the aggregate outstanding amount of Intercompany Indebtedness that is owing to any Guarantor; (ii) from any an Affiliate or a Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary Wholly-Owned Subsidiary, together with the aggregate outstanding amount of Indebtedness of Subsidiaries of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described type set forth in clause (iiih) or above (vprovided that only the portion of Existing Indebtedness then outstanding as of the date of determination shall be included) of and this clause (f)i) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit exceed $500,000,000 at any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;time.
Appears in 2 contracts
Sources: Credit Agreement (American Financial Group Inc), Credit Agreement (American Financial Group Inc)
Indebtedness. The Neither the Borrower shall not, and shall not permit nor any of its Restricted Subsidiaries to, shall directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingor Off Balance Sheet Liabilities, except:
(ai) Indebtedness under the Loan DocumentsObligations;
(bii) Indebtedness outstanding on the date hereof and listed on Schedule 7.01Transaction Costs;
(ciii) Guaranty Obligations incurred the Indebtedness evidenced by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below)Senior Subordinated Notes;
(iiv) Permitted Existing Indebtedness and Permitted Refinancing Indebtedness;
(v) other Subordinated Indebtedness the terms (including, without limitation, with respect to amount, maturity, amortization, interest rate, premiums, fees, covenants, subordination terms, events of default and remedies) of which are acceptable to the Required Lenders when issued and Permitted Refinancing Indebtedness in respect thereof; provided, however, the aggregate outstanding principal amount of such Subordinated Indebtedness together with the aggregate outstanding principal amount of Indebtedness permitted under clauses (xv) and (xvi) below shall not at any time exceed the then applicable Aggregate Indebtedness Basket;
(vi) Indebtedness in respect of Capital Lease Obligations taxes, assessments, governmental charges and purchase money obligations claims for tangible propertylabor, (ii) Indebtedness in respect of sale and leaseback transactions permitted by materials or supplies, to the extent that payment thereof is not required pursuant to Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k6.2(D);
(evii) renewals, extensions, refinancings and refundings of Indebtedness constituting Contingent Obligations permitted by clause (b) or (d) above or this clause (eSection 6.3(E); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(fviii) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (iia) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Non-Restricted Subsidiary to the Borrower or to any Restricted Subsidiary, (b) from any Restricted Subsidiary to another Restricted Subsidiary, and (c) from the Borrower to any Restricted Subsidiary provided the aggregate amount of such Indebtedness under this clause (c) would constitute an Investment permitted under the terms of Section 6.3(D);
(ix) Indebtedness in respect of Hedging Agreements permitted under Section 6.3(R);
(x) secured or unsecured purchase money Indebtedness (including Capitalized Leases) or Indebtedness or Off Balance Sheet Liabilities in connection with sale and leaseback transactions, synthetic lease transactions, capital expenditures or similar financing transactions incurred by the Borrower or any of its Restricted Subsidiaries after the Closing Date to finance the acquisition of fixed assets, if (1) at the time of such incurrence, no Default or Unmatured Default has occurred and is continuing or would result from such incurrence, (2) such Indebtedness has a scheduled maturity and is not due on demand, (3) all such Indebtedness of the Borrower and its Restricted Subsidiaries does not exceed $7,500,000 in the aggregate outstanding at any time, and (4) any Lien securing such Indebtedness is permitted under Section 6.3(C) (such Indebtedness being referred to herein as "Permitted Purchase Money Indebtedness");
(xi) Indebtedness with respect to performance, surety, statutory, appeal or similar bonds obtained by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(xii) Indebtedness incurred for whose benefit ordinary administrative expenses, franchise taxes, accounting expenses, legal expenses, employee expenses, lease and office expenses, consultant expenses, investment banker expenses incurred by Holdings on behalf of the Borrower or any Restricted Subsidiary provided the allocation and payment of which complies with the terms of Section 6.2(M) above and Section 6.3(F) below;
(xiii) unsecured Indebtedness with respect to management fees, consulting fees or investment banking fees (or other fees of a similar nature), to the extent that payment thereof would not be prohibited by Section 6.3(F);
(xiv) Indebtedness in connection with the Deferred Limited Interest Guaranty;
(xv) Indebtedness incurred by the Borrower or any Restricted Subsidiary to the Seller in any Permitted Acquisition as part of the consideration therefor, provided that the aggregate outstanding principal amount of such payment Indebtedness (including any Contingent Obligations incurred in connection therewith) together with the aggregate outstanding principal amount of Indebtedness permitted under clause (v) above and clause (xvi) below shall not at any time exceed the then applicable Aggregate Indebtedness Basket;
(xvi) provided no Default has occurred and is made; providedcontinuing at the time of the incurrence thereof, further thatany other Indebtedness which when aggregated with the outstanding principal amount of Indebtedness permitted under clauses (v) and (xv) above does not exceed the then applicable Aggregate Indebtedness Basket in the aggregate at any time;
(xvii) Indebtedness incurred by any Non-Restricted Subsidiary so long as (a) such Indebtedness is nonrecourse to the Borrower and its Restricted Subsidiaries and the Borrower and its Restricted Subsidiaries have no direct or Contingent Obligations with respect to such Indebtedness and (b) the direct or indirect Indebtedness or Contingent Obligation of the Borrower and its Restricted Subsidiaries in respect thereof is permitted pursuant to clause (xvi) above;
(xviii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of Indebtedness described in clauses (i)daylight overdrafts, (ii)which will not be, (iiiand will not be deemed to be, inadvertent) and (iv) above, the Investment drawn against insufficient funds in the intercompany loan by ordinary course of business; and
(xix) Indebtedness in connection with agreements providing for indemnification and purchase price adjustments in connection with the lender thereof is sale or disposition of any of the Borrower's or any Restricted Subsidiary's business, properties or assets permitted under the terms of Section 7.03;6.3(B); provided, however, neither the Borrower nor any of its Subsidiaries shall create, incur, assume or otherwise become or remain directly or indirectly liable with respect to such Indebtedness if all such Indebtedness plus the unfunded portion of the Aggregate Revolving Loan Commitment, if funded, would cause the Borrower to exceed the limitation on Indebtedness contained in Section 4.07 of the Indenture (as amended, waived or modified from time to time) or which would render
Appears in 2 contracts
Sources: Credit Agreement (Gfsi Inc), Credit Agreement (Gfsi Inc)
Indebtedness. (a) The Borrower shall not, and nor shall not the Borrower permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly indirectly:
(i) create, incur, assume issue, assume, guarantee or otherwise become or remain directly or indirectly liable liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness except (including Acquired Indebtedness); or
(ii) issue any shares of Disqualified Stock or permit any Restricted Subsidiary to issue any shares of Disqualified Stock or Preferred Stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness), issue shares of Disqualified Stock and issue shares of Preferred Stock, in each case, if (any Indebtedness, Disqualified Stock or Preferred Stock incurred or issued pursuant to following clauses (A), (B) and (C), “Permitted Ratio Debt”):
(A) with respect to Indebtedness secured on a pari passu basis with the First Lien Obligations, the First Lien Net Leverage Ratio for the followingTest Period preceding the date on which such additional Indebtedness is incurred (without netting any cash received from the incurrence of such Indebtedness proposed to be incurred) would be no greater than 2.00 to 1.00;
(B) with respect to Indebtedness secured by Liens on a basis that is junior in priority to the First Lien Obligations, the Secured Net Leverage Ratio for the Test Period preceding the date on which such additional Indebtedness is incurred (without netting any cash received from the incurrence of such Indebtedness proposed to be incurred) would be no greater than 2.25 to 1.00; or
(C) with respect to unsecured Indebtedness, or any Disqualified Stock or Preferred Stock, the Total Net Leverage Ratio for the Test Period preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or Preferred Stock is issued (without netting any cash received from the incurrence of such Indebtedness proposed to be incurred) would be no greater than 4.00 to 1.00, in each case, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock or Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of such Test Period; provided, further, that Permitted Ratio Debt in the form of Indebtedness, (x) shall not mature earlier than the Original Term Loan Maturity Date, (y) shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the Closing Date Term Loans on the date of incurrence of such Permitted Ratio Debt and (z) if any such Indebtedness is secured on a pari passu basis with the First Lien Obligations under this Agreement, then the Borrower shall comply with the “most favored nation” pricing provisions of Section 2.14(5)(c) to the extent then applicable to the Incremental Term Loans as if such Indebtedness were Incremental Term Loans incurred pursuant to Section 2.14.
(b) The provisions of Section 7.02(a) will not apply to:
(1) Indebtedness under the Loan Documents (including Incremental Loans, Other Loans, Extended Term Loans, Loans made pursuant to Extended Revolving Commitments and Replacement Loans);
(2) Indebtedness of the Borrower or any Restricted Subsidiary under any reimbursement agreement in respect of letters of credit issued for the account of the Borrower or any Restricted Subsidiary in an amount not to exceed $5,000,000 at any time outstanding;
(3) the incurrence of Indebtedness by the Borrower and any Restricted Subsidiary in existence (or for which commitments are in existence) on the Closing Date (excluding Indebtedness described in the preceding clauses (1) and (2)); provided that any such item of Indebtedness with an aggregate outstanding principal amount on the Closing Date in excess of $5,000,000 shall be set forth on Schedule 7.02;
(4) the incurrence of Attributable Indebtedness and Indebtedness (including Capitalized Lease Obligations and Purchase Money Obligations) and Disqualified Stock incurred or issued by the Borrower or any Restricted Subsidiary and Preferred Stock issued by any Restricted Subsidiary, to finance the purchase, lease, expansion, construction, installation, replacement, repair or improvement of property (real or personal), equipment or other assets, including assets that are used or useful in a Similar Business, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets in an aggregate principal amount, together with any Refinancing Indebtedness in respect thereof (excluding any Incremental Amounts) and all other Indebtedness, Disqualified Stock or Preferred Stock incurred or issued and outstanding under this clause (4), at such time not to exceed (as of the date such Indebtedness, Disqualified Stock or Preferred Stock is issued, incurred or otherwise obtained) the greater of (I) $15,000,000 and (II) 10% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the most recently ended Test Period (calculated on a pro forma basis);
(5) Indebtedness incurred by the Borrower or any Restricted Subsidiary (a) constituting reimbursement obligations with respect to letters of credit, bank guarantees, banker’s acceptances, warehouse receipts, or similar instruments issued or entered into, or relating to obligations or liabilities (other than in support of debt for borrowed money) incurred in the ordinary course of business or consistent with industry practice, including in respect of workers’ compensation claims, performance, completion or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance, unemployment insurance or other social security legislation or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims, performance, completion or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or (b) as an account party in respect of letters of credit, bank guarantees or similar instruments in favor of suppliers, trade creditors or other Persons issued or incurred in the ordinary course of business or consistent with industry practice;
(6) the incurrence of Indebtedness arising from agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price, earnouts or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(7) the incurrence of Indebtedness or issuance of Disqualified Stock of the Borrower to a Restricted Subsidiary (or to any Parent Company which is substantially contemporaneously transferred to any Restricted Subsidiary); provided that any such Indebtedness for borrowed money owing to a Restricted Subsidiary that is not a Guarantor is expressly subordinated in right of payment to the Loans to the extent permitted by applicable law and it does not result in adverse tax consequences; provided, further, that any subsequent issuance or transfer of any Capital Stock or any other event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness or Disqualified Stock (except to the Borrower or another Restricted Subsidiary or any pledge of such Indebtedness or Disqualified Stock constituting a Permitted Lien) will be deemed, in each case, to be an incurrence of such Indebtedness (to the extent such Indebtedness is then outstanding) or issuance of such Disqualified Stock (to the extent such Disqualified Stock is then outstanding) not permitted by this clause (7);
(8) the incurrence of Indebtedness of a Restricted Subsidiary to the Borrower or another Restricted Subsidiary (or to any Parent Company which is substantially contemporaneously transferred to the Borrower or any Restricted Subsidiary) to the extent permitted by Section 7.05; provided that any such Indebtedness for borrowed money incurred by a Guarantor and owing to a Restricted Subsidiary that is not a Guarantor is expressly subordinated in right of payment to the Guaranty of the Loans of such Guarantor to the extent permitted by applicable law and it does not result in adverse tax consequences; provided, further, that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any such subsequent transfer of any such Indebtedness (except to the Borrower or a Restricted Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien) will be deemed, in each case, to be an incurrence of such Indebtedness (to the extent such Indebtedness is then outstanding) not permitted by this clause (8);
(9) the issuance of shares of Preferred Stock or Disqualified Stock of a Restricted Subsidiary to the Borrower or a Restricted Subsidiary (or to any Parent Company which is substantially contemporaneously transferred to the Borrower or any Restricted Subsidiary); provided that any subsequent issuance or transfer of any Capital Stock or any other event that results in any such Restricted Subsidiary that holds such Preferred Stock or Disqualified Stock ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock or Disqualified Stock (except to the Borrower or another Restricted Subsidiary or any pledge of such Preferred Stock or Disqualified Stock constituting a Permitted Lien) will be deemed, in each case, to be an issuance of such shares of Preferred Stock or Disqualified Stock (to the extent such Preferred Stock or Disqualified Stock is then outstanding) not permitted by this clause (9);
(10) the incurrence of Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(11) the incurrence of obligations in respect of self-insurance and obligations in respect of performance, bid, appeal and surety bonds and performance, banker’s acceptance facilities and completion guarantees and similar obligations provided by the Borrower or any Restricted Subsidiary or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto (other than in support of debt for borrowed money), in each case in the ordinary course of business or consistent with industry practice, including those incurred to secure health, safety and environmental obligations;
(12) the incurrence of Indebtedness or issuance of Disqualified Stock of the Borrower and the incurrence or issuance of Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary in an aggregate principal amount or liquidation preference that, when aggregated with the principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding and incurred or issued, as applicable, pursuant to this clause (12), together with any Refinancing Indebtedness in respect thereof (excluding any Incremental Amounts), does not exceed (as of the date such Indebtedness, Disqualified Stock or Preferred Stock is issued, incurred or otherwise obtained) (i) the greater of (I) $50,000,000 and (II) 30% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the most recently ended Test Period (calculated on a pro forma basis) plus, without duplication, (ii) in the event of any extension, replacement, refinancing, renewal or defeasance of any such Indebtedness, Disqualified Stock or Preferred Stock, an amount equal to (x) any accrued and unpaid interest on the Indebtedness, any accrued and unpaid dividends on the Preferred Stock, and any accrued and unpaid dividends on the Disqualified Stock being so refinanced, extended, replaced, refunded, renewed or defeased plus (y) the amount of any tender premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Indebtedness, Disqualified Stock or Preferred Stock and any defeasance costs and any fees and expenses (including original issue discount, upfront fees or similar fees) incurred in connection with the issuance of such new Indebtedness, Disqualified Stock or Preferred Stock or the extension, replacement, refunding, refinancing, renewal or defeasance of such Indebtedness, Disqualified Stock or Preferred Stock;
(13) the incurrence or issuance by the Borrower of Refinancing Indebtedness or the incurrence or issuance by a Restricted Subsidiary of Refinancing Indebtedness that serves to Refinance any Indebtedness permitted under Section 7.02(a) and clause (3) above, this clause (13) and clauses (14), (23) and (29)(b), or any successive Refinancing Indebtedness with respect to any of the foregoing;
(14) the incurrence or issuance of:
(a) Indebtedness under or Disqualified Stock of the Loan Documents;
Borrower or Indebtedness, Disqualified Stock or Preferred Stock of a Restricted Subsidiary, incurred or issued to finance an acquisition or investment (bor other purchase of assets) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred or that is assumed by the Borrower or any Guarantor Restricted Subsidiary in respect connection with such acquisition or investment (or other purchase of Indebtedness assets); and
(b) Indebtedness, Disqualified Stock or Preferred Stock of (i) Persons that are acquired by the Borrower or any Guarantor that is permitted by Restricted Subsidiary or merged into, amalgamated or consolidated with the Borrower or a Restricted Subsidiary in accordance with the terms of this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, Agreement or (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and an Unrestricted Subsidiary that is redesignated as a restricted Subsidiary (iiiit being acknowledged that (x) other secured Indebtedness (including secured Indebtedness incurred or assumed Persons that are acquired by the Borrower or any Restricted Subsidiary or merged into, amalgamated or consolidated with the Borrower or a Restricted Subsidiary in accordance with the terms of this Agreement may remain liable with respect to Indebtedness existing on the date of such acquisition and its Subsidiaries in connection (y) an Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary may remain liable with a Permitted Acquisitionrespect to Indebtedness existing on the date of such redesignation); provided, however, that in the aggregate principal amount case of all such Indebtedness permitted by this subsection the preceding clauses (da) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d(b), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount or liquidation preference, together with any Refinancing Indebtedness in respect thereof (excluding any Incremental Amounts), not to exceed (A) the greater than the principal of $45,000,000 and 30% of Consolidated EBITDA, plus (B) an unlimited amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that Indebtedness so long as in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) case of this clause (f)B) shall only:
(i) with respect to Indebtedness secured on a pari passu basis with the First Lien Obligations, the First Lien Net Leverage Ratio for the Test Period preceding the date on which such additional Indebtedness is incurred (without netting any cash received from the incurrence of such Indebtedness proposed to be evidenced incurred) would be no greater than 2.00 to 1.00 or, after giving pro forma effect to such acquisition, amalgamation, consolidation or merger, the First Lien Net Leverage Ratio of the Borrower for the Test Period preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or Preferred Stock is issued (without netting any cash received from the incurrence of such Indebtedness proposed to be incurred) would be no greater than the First Lien Net Leverage Ratio immediately prior to giving pro forma effect to such incurrence of Indebtedness or issuance of Disqualified Stock or Preferred Stock;
(ii) with respect to Indebtedness secured by promissory notes and all such notes shall be subject to Liens on a first basis that is junior in priority Lien pursuant to the Collateral Agreement First Lien Obligations, either (if x) the payee Secured Net Leverage Ratio for the Test Period preceding the date on which such additional Indebtedness is a Loan Party that is a party incurred (without netting any cash received from the incurrence of such Indebtedness proposed to the Collateral Agreement), be incurred) would be no greater than 2.25 to 1.00 or (y) all after giving pro forma effect to such Indebtedness (other than acquisition, amalgamation, consolidation or merger, the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty Secured Net Leverage Ratio of the Obligations shall result in a pro tanto reduction of Borrower for the amount of any Indebtedness owed by such Subsidiary to Test Period preceding the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;date on whi
Appears in 2 contracts
Sources: Credit Agreement (GreenSky, Inc.), Credit Agreement (GreenSky, Inc.)
Indebtedness. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly indirectly, create, incur, assume assume, guarantee or otherwise become or remain directly liable for or indirectly liable with respect suffer to exist any Indebtedness except for the followingexcept:
(a) Indebtedness under the Loan Documentsto Lender;
(b) Indebtedness expressly denoted as permitted indebtedness in the Information Certificate and extensions, renewal and replacements of such indebtedness that do not increase the principal amount thereof or the aggregate amount of outstanding on obligations thereunder or the date hereof collateral (if any) securing such obligations, and listed on Schedule 7.01pursuant to terms and conditions that are not less favorable to Lender than the Indebtedness being extended, renewed or replaced (collectively, “Permitted Indebtedness”);
(c) Guaranty Obligations incurred by the Indebtedness of Borrower or any Guarantor in respect Subsidiary of Borrower incurred after the Closing Date consisting of capital lease obligations or Indebtedness incurred to provide all or a portion of the Borrower or any Guarantor purchase price of an asset; provided, that is permitted by this Section 7.01 (other than clause (g) below);
(i) such Indebtedness in respect when incurred shall not exceed the purchase price of Capital Lease Obligations and purchase money obligations for tangible propertysuch asset, (ii) no such Indebtedness shall be refinanced for a principal amount in respect excess of sale the principal balance outstanding thereon at the time of such refinancing, or on terms and leaseback transactions permitted by Section 7.13 conditions less favorable to Lender than the Indebtedness being refinanced; and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) outstanding at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)250,000;
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount Indebtedness consisting of (plus reasonable fees, expenses loans and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans advances (i) from the Borrower to any Guarantor; between NimbleGen and NimbleGen Iceland, or (ii) from any Subsidiary of the Borrower to the Borrower NimbleGen or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party NimbleGen Iceland owed to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the BorrowerNimbleGen; provided, howeverthat, that (x) all in each case, such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by a promissory notes note in form and all such notes substance reasonably acceptable to Lender, which promissory note shall be subject pledged and delivered, together with all necessary endorsements and transfer documents executed in blank, to a first priority Lien Lender as additional collateral for the Obligations and shall be unsecured and subordinate in all respects to the payment in full of the Obligations pursuant to the Collateral Agreement terms of such promissory note or an intercompany subordination agreement in form and substance reasonably acceptable to Lender (if the payee is “Intercompany Notes (Unsecured)”).
(e) Indebtedness consisting of loans and advances of NimbleGen Germany owed to NimbleGen or NimbleGen Iceland, in an aggregate amount not to exceed $500,000 at any time outstanding; provided, that, in each case, such Indebtedness shall be evidenced by a Loan Party that is a party promissory note in form and substance reasonably acceptable to Lender, which promissory note shall be pledged and delivered, together with all necessary endorsements and transfer documents executed in blank, to Lender as additional collateral for the Obligations and shall be secured (to the Collateral Agreementgreatest extent reasonably possible under applicable law) by Liens on substantially all of the assets of NimbleGen Germany (the “Intercompany Notes (Secured)” and together with the Intercompany Notes (Unsecured), (y) all such collectively, the “Intercompany Notes”). Borrower will not make prepayments on any existing or future Indebtedness to any Person (other than Lender, to the Indebtedness described extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Borrower will not make any payments (whether in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt andcash, in the case of Indebtedness described kind or otherwise) in clause (v) only, shall not permit any cash payments respect of any kind prior to Permitted Indebtedness at a time such payments are otherwise prohibited under the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount terms of any Indebtedness owed by such Subsidiary to the Borrower intercreditor agreement or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;subordination agreement or promissory note containing subordination terms.
Appears in 2 contracts
Sources: Loan and Security Agreement (Nimblegen Systems Inc), Loan and Security Agreement (Nimblegen Systems Inc)
Indebtedness. The Each Borrower shall will not, and shall will not permit any of its Subsidiaries to, directly or indirectly indirectly, create, incur, assume issue, assume, guarantee, suffer to exist or otherwise become or remain directly or indirectly liable liable, contingently or otherwise with respect to any Indebtedness Indebtedness, except for the followingfor:
(a) Indebtedness under in respect of the Loan DocumentsObligations;
(b) Indebtedness outstanding on representing deferred compensation to directors, officers and employees of the date hereof and listed on Schedule 7.01Borrowers or any Subsidiary thereof incurred in the Ordinary Course of Business;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of unsecured Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness incurred in respect the Ordinary Course of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect Business of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the such Borrower and its Subsidiaries and consistent with past practice in respect of open accounts extended by suppliers on normal trade terms in connection with purchases of goods and services which are not overdue for a period of more than ninety (90) days or, if overdue for more than ninety (90) days, as to which a dispute exists and adequate reserves in conformity with GAAP have been established on the books of such Borrower and (ii) in respect of performance, surety or appeal bonds provided in the Ordinary Course of Business, but excluding (in each case) Indebtedness incurred through the borrowing of money or Contingent Liabilities in respect thereof;
(d) Indebtedness (i) evidencing the deferred purchase price of newly acquired property or incurred to finance the acquisition of equipment of such Borrower and its Subsidiaries (pursuant to purchase money mortgages, indebtedness or otherwise, whether owed to the seller or a third party) or to construct, replace or improve any fixed or capital assets of any Borrower and its Subsidiaries (provided, that any Indebtedness incurred pursuant to this clause (d) is incurred within one hundred eighty (180) days (or such longer period as agreed to by Agent in its Permitted AcquisitionDiscretion) of the acquisition, replacement or completion of construction or improvement of such property) and (ii) constituting Attributable Indebtedness and Permitted Refinancings of such Indebtedness under this clause (d); provided, however, that the aggregate principal amount of all such Indebtedness permitted by outstanding pursuant to this subsection clause (d) shall not at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)50,000,000;
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (ARKO Corp.), Revolving Credit and Security Agreement (ARKO Petroleum Corp.)
Indebtedness. The Borrower shall not, and shall will not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with suffer to exist, any Indebtedness that ranks senior in any respect to the Indebtedness under this Agreement (or any portion thereof) as to payment or performance or as to dividends or distributions upon bankruptcy, insolvency, liquidation or winding-up, and will not permit or cause any of its Material Subsidiaries to create, incur, assume or suffer to exist any Indebtedness except for other than in the following:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by case of either the Borrower or any Guarantor in respect of Indebtedness Material Subsidiary (it being understood that this Section 9.2 shall not apply to any Subsidiary of the Borrower or any Guarantor that for so long as such Subsidiary is permitted by this Section 7.01 (other than clause (g) below);not a Material Subsidiary):
(i) Indebtedness accrued expenses, current trade or other accounts payable and other current liabilities arising in respect the ordinary course of Capital Lease Obligations business and purchase money obligations for tangible propertynot incurred through the borrowing of money, provided that the same shall be paid when due except to the extent being contested in good faith and by appropriate proceedings;
(ii) Indebtedness in respect of sale loans and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed advances by the Borrower and its Subsidiaries to Material Subsidiaries that are Wholly Owned Subsidiaries of the Borrower or by any Wholly Owned Subsidiaries to the Borrower, provided that any such loan or advance to the Borrower is subordinated in connection with a Permitted Acquisition); providedright and time of payment to the Obligations;
(iii) Indebtedness of the Borrower and its Subsidiaries of the type described in, howeverand secured by Liens of the types described in, that the clause (vi) of Section 9.3, in an aggregate principal amount of at all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and times in compliance with the Liens securing such Indebtedness shall be within the limitations limitation set forth in such clause;
(iv) Indebtedness under reimbursement obligations in respect of letters of credit issued for the benefit of an Insurance Subsidiary in the ordinary course of their business to support the payment of obligations arising under insurance and reinsurance contracts;
(v) Indebtedness of Beechwood under the Loan Notes and in respect of the Beechwood Escrow and Security Agreement and this Agreement;
(vi) Indebtedness of Archer under loan no▇▇▇ ▇▇sued and outstanding as of the Execution Date;
(vii) Indebtedness of any Subsidiary reflected (including the fact and nature of any security for such Indebtedness) on the most recent financial statements delivered to the Agent pursuant to Sections 7.02(d), 7.02(e6.11(a) or 7.02(k(b);
(eviii) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause set forth on Schedule 9.2; and
(bix) or unsecured Indebtedness (dother than Indebtedness specified in clauses (i) through (viii) above and other than Indebtedness of the Parent or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is Borrower) in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and exceeding $3,000,000 at any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Chartwell Re Corp), Credit Agreement (Chartwell Re Holdings Corp)
Indebtedness. The Neither the Borrower shall not, and shall not permit nor any of its Subsidiaries to, shall directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingIndebtedness, except:
(ai) Indebtedness under the Loan DocumentsSecured Obligations;
(bii) Permitted Existing Indebtedness outstanding on the date hereof and listed on Schedule 7.01Permitted Refinancing Indebtedness in respect thereof;
(ciii) Guaranty Indebtedness in respect of obligations secured by Customary Permitted Liens;
(iv) Indebtedness constituting Contingent Obligations permitted by Section 7.3(E);
(v) subject to the terms of Section 7.3(Q), Indebtedness arising from intercompany loans and advances (a) from any Subsidiary to the Borrower or any wholly-owned Subsidiary or (b) from the Borrower to any wholly-owned Subsidiary; provided, that such Indebtedness shall be expressly subordinate to the payment in full in cash of the Secured Obligations on terms satisfactory to the Administrative Agent;
(vi) Indebtedness in respect of Hedging Obligations permitted under Section 7.3(P);
(vii) secured or unsecured purchase money Indebtedness (including Capitalized Leases) incurred by the Borrower or any Guarantor of its Subsidiaries after the Closing Date to finance the acquisition of fixed assets, if (a) at the time of such incurrence, no Default or Unmatured Default has occurred and is continuing or would result from such incurrence, (b) such Indebtedness has a scheduled maturity and is not due on demand, (c) such Indebtedness does not exceed the lower of the fair market value or the cost of the applicable fixed assets on the date acquired, (d) such Indebtedness does not exceed $1,000,000 in the aggregate principal amount outstanding at any time, and (e) any Lien securing such Indebtedness is permitted under Section 7.3(C) (such Indebtedness being referred to herein as "PERMITTED PURCHASE MONEY INDEBTEDNESS");
(viii) Indebtedness with respect of Indebtedness of to surety, appeal and performance bonds obtained by the Borrower or any Guarantor of its Subsidiaries in the ordinary course of business;
(ix) Indebtedness incurred by the Borrower or any of its Subsidiaries (whether assumed by the Borrower or such Subsidiary or issued to the seller) in any Permitted Acquisition as part of the consideration therefor, provided that such Indebtedness is permitted by this Section 7.01 unsecured and is subordinated to the Obligations on terms reasonably acceptable to the Administrative Agent (other than clause including, without limitation those with respect to amount, maturity (gwhich shall not be prior to six (6) belowmonths after the Commitment Termination Date), amortization, interest rate, premiums, fees, covenants, subordination, events of default and remedies);
(ix) Indebtedness evidenced by the Subordinated Notes and Permitted Refinancing Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, thereof;
(iixi) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed guaranties by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted to be incurred by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)Subsidiary;
(exii) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred arising in connection with the renewal, extension, refinancing Borrower's or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is madeSubsidiaries' credit card programs maintained with any of the Lenders; provided, further that, and
(xiii) additional unsecured Indebtedness in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;an aggregate amount at any time outstanding not exceeding $1,000,000.
Appears in 2 contracts
Sources: Credit Agreement (Alion Science & Technology Corp), Credit Agreement (Alion Science & Technology Corp)
Indebtedness. The Borrower shall Company will not, and shall will not cause or permit any Subsidiary or Sharyland to incur any Indebtedness, and will use commercially reasonable efforts not to permit any Qualified Lessee or Subsidiaries of its Subsidiaries toSpecified Qualified Lessees to incur Indebtedness for borrowed money, directly or indirectly createin each case except the following Indebtedness, incur, assume or otherwise become or remain directly or indirectly liable with respect which may be incurred subject to any Indebtedness except for the followingrequirements of the last paragraph of this section:
(a) Indebtedness under evidenced by the Loan Financing Documents;
(b) Indebtedness outstanding on of the date hereof Company (i) that is not related to, and listed on Schedule 7.01;
does not support, Non-Recourse Debt of a Project Finance Subsidiary and (cii) Guaranty Obligations incurred if incurred, would not result in a breach of Section 9.9; provided that if the Indebtedness is proposed to be secured by any of the Collateral, then at least five Business Days (or such shorter period reasonably agreed by the Borrower Required Holders) prior to the incurrence of such Indebtedness, the Company shall (x) notify the Holders of its intent to incur such Indebtedness, which notice shall set forth in reasonable detail (A) the amount and proposed economic terms of such Indebtedness, (B) by type of lender or purchaser and (C) the proposed collateral for such Indebtedness (which proposed collateral may include any Guarantor in respect of Indebtedness or all of the Borrower or any Guarantor that is permitted by this Section 7.01 Collateral) and (y) deliver to the Collateral Agent and the other than clause (g) below)Secured Parties an executed joinder agreement substantially in the form of Exhibit A to the Collateral Agency Agreement pursuant to which all the proposed holders of such Indebtedness have become party to the Collateral Agency Agreement;
(i) Indebtedness in respect Non-Recourse Debt incurred by a Project Finance Subsidiary of Capital Lease Obligations and purchase money obligations for tangible propertythe Company (including Non-Recourse Debt incurred by such Project Finance Subsidiary prior to being acquired by the Company or a Subsidiary) to fund a New Project, (ii) any Indebtedness in respect the form of sale and leaseback transactions permitted by Section 7.13 a pledge of Capital Stock in a Project Finance Subsidiary as security for Non-Recourse Debt of such Project Finance Subsidiary and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed in the form of Guaranties by the Borrower Company or any Subsidiary of Indebtedness of any Project Finance Subsidiary, the aggregate amount of which Guaranties shall not exceed $25,000,000 outstanding at any given time;
(d) Indebtedness of any such Qualified Lessee (i) in an aggregate principal amount for such Qualified Lessee of up to the greater of (A) $5,000,000 and its Subsidiaries (B) an amount equal to 1% of the sum of, without duplication, (x) the total amount of the Consolidated Net Plant of such Qualified Lessee, plus (y) the total amount of the Consolidated Net Plant of any guarantor(s) of such Qualified Lessee’s obligations under the applicable Leases, plus (z) the total amount of Leased Consolidated Net Plant, in connection with each case on a Permitted Acquisition)senior secured basis and (ii) in an aggregate principal amount for such Qualified Lessee of up to the greater of (A) $10,000,000 and (B) an amount equal to 1.5% of the sum of, without duplication, (x) the total amount of the Consolidated Net Plant of such Qualified Lessee, plus (y) the total amount of the Consolidated Net Plant of any guarantor(s) of such Qualified Lessee’s obligations under the applicable Leases, plus (z) the total amount of Leased Consolidated Net Plant, in each case on an unsecured subordinated basis on terms substantially similar to the terms set forth on Exhibit 2, to the extent allowed under the Leases to which such Qualified Lessee is a party as a lessee or tenant thereunder; provided, however, that the aggregate principal amount for purposes of all such Indebtedness permitted by this subsection clause (d), all Consolidated Qualified Lessees will be treated as one Qualified Lessee;
(e) Indebtedness of the Company to any of its Subsidiaries, which by its terms is expressly subordinated to the Obligations, and Indebtedness of any Subsidiary to the Company or any other Subsidiary of the Company not to exceed $5,000,000 at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)each case to have a maturity date of less than one year;
(ef) renewals, extensions, refinancings any Qualified Lessee Affiliate Loan and refundings other Indebtedness of Qualified Lessees otherwise acceptable to the Required Holders; and
(g) Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is of Subsidiaries of Specified Qualified Lessees incurred in an aggregate principal amount not greater than the principal amount for each such Specified Qualified Lessee of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable up to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary product of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness Specified Qualified Lessee’s Consolidated Net Plant (other than derived from its most recently prepared consolidated balance sheet, prepared in accordance with GAAP but adjusted to reverse the Indebtedness described effects of failed sale-leaseback accounting in clause (iiia manner reasonably determined by such Specified Qualified Lessee in good faith) or (v) of this clause (f)) shall be evidenced multiplied by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all the lesser of (A) the sum of such Specified Qualified Lessee’s then-current PUCT-regulated debt-to-equity ratio (expressed as a percentage) and 5% or (B) 65%; provided that such Indebtedness (other than the must be Non-Recourse Debt to such Specified Qualified Lessee. Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower Company or to any of its Subsidiaries for whose benefit may be incurred under this Section 10.6 only if no Default or Event of Default is, or as a result of such payment is made; providedincurrence would be, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;existing.
Appears in 2 contracts
Sources: Note Purchase Agreement (InfraREIT, Inc.), Note Purchase Agreement (InfraREIT, Inc.)
Indebtedness. The None of the Borrower shall not, and shall not permit or any of its the Subsidiaries to, directly or indirectly will create, incur, assume or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness except for the followingIndebtedness, other than:
(a) Indebtedness in respect of the Obligations and Indebtedness arising under the Loan DocumentsRoyalty Agreement;
(b) until the Closing Date, Indebtedness outstanding on the date hereof and listed on that is to be repaid in full as further identified in Schedule 7.018.2(b);
(c) Guaranty Obligations Indebtedness existing as of the Closing Date which is identified in Schedule 8.2(c), and Refinancing of such Indebtedness in a principal amount not in excess of that which is outstanding on the Closing Date (as such amount has been reduced following the Closing Date);
(d) unsecured Indebtedness in respect of performance, surety or appeal bonds provided in the ordinary course of business in an aggregate amount at any time outstanding not to exceed $500,000;
(e) Purchase Money Indebtedness and Capitalized Lease Liabilities, and Refinancings thereof, in a principal amount not to exceed $8,000,000 in the aggregate outstanding at any time, and, without duplication, Contingent Liabilities incurred by in connection therewith;
(f) Permitted Subordinated Indebtedness;
(g) Indebtedness of any Subsidiary or the Borrower owing to the Borrower or any Guarantor in respect of Subsidiary;
(h) other Indebtedness of the Borrower or and the Subsidiaries in an aggregate amount at any Guarantor that is permitted by this Section 7.01 (other than clause (g) below)time outstanding not to exceed $100,000;
(i) Indebtedness incurred as a result of endorsing negotiable instruments received in the ordinary course of business;
(j) Indebtedness permitted to exist, and subject to the limitations, with respect of Capital Lease Obligations and purchase money obligations for tangible property, to Permitted Joint Ventures; and
(iik) Indebtedness in respect of sale and leaseback transactions reimbursement obligations under letters of credit posted in the ordinary course of business to secure the Borrower’s or a Subsidiary’s real property lease obligations, not to exceed $1,000,000 in the aggregate. provided that, no Indebtedness otherwise permitted by Section 7.13 and clauses (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(dc), 7.02(e) or 7.02(k);
(e) renewals), extensions(f), refinancings and refundings of Indebtedness permitted by clause (bg), (h) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)j) shall be evidenced by promissory notes assumed, created or otherwise incurred if a Default has occurred and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall then continuing or would result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;therefrom.
Appears in 2 contracts
Sources: Credit Agreement (Natera, Inc.), Credit Agreement (Natera, Inc.)
Indebtedness. The Neither the Borrower shall not, and shall not permit nor any of its Subsidiaries to, shall directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except: the Secured Obligations; Permitted Existing Indebtedness except for the following:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Permitted Refinancing Indebtedness; Indebtedness in respect of Capital Lease obligations secured by Customary Permitted Liens; Indebtedness constituting Contingent Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition7.3(E); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans and advances (i) from the Borrower to any Guarantor; (iia) from any Subsidiary of the Borrower to the Borrower or any Guarantor; other Loan Party, (iiib) from the Borrower to any wholly-owned Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; or (ivc) from the Borrower to Mandara U.S. or any Guarantor Mandara Asia if such Indebtedness is evidenced by an intercompany note which has been pledged to any Subsidiary the Administrative Agent for the benefit of the Borrower Holders of Secured Obligations; provided, that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to if the Borrower or any Subsidiary of Guarantor is the Borrower; provided, however, that (x) all obligor on any such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (fv)) , such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant expressly subordinate to the Collateral Agreement (if payment in full in cash of the payee is a Loan Party that is a party Secured Obligations on terms reasonably satisfactory to the Collateral Agreement), (y) all such Administrative Agent; secured or unsecured purchase money Indebtedness (other than the Indebtedness described in clauses (i)including, (iiiwithout limitation, Capitalized Leases) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment incurred by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit after the Closing Date to finance the acquisition of fixed assets, if (1) at the time of such payment incurrence, no Default or Unmatured Default has occurred and is made; providedcontinuing or would result from such incurrence, further that(2) such Indebtedness has a scheduled maturity and is not due on demand, (3) such Indebtedness does not exceed the lower of the fair market value or the cost of the applicable fixed assets on the date acquired, (4) such Indebtedness does not exceed $3,000,000 in the case of Indebtedness described in clauses (i)aggregate principal amount outstanding at any time, (ii), (iii) and (iv5) above, the Investment in the intercompany loan by the lender thereof any Lien securing such Indebtedness is permitted under Section 7.03;7.3(C) (such Indebtedness being referred to herein as "Permitted Purchase Money Indebtedness"); Indebtedness with respect to surety, appeal and performance bonds obtained by the Borrower or any of its Subsidiaries in the ordinary course of business; Indebtedness incurred by the Borrower or any of its Subsidiaries (whether assumed by the Borrower or such Subsidiary or issued to the seller) in any Permitted Acquisition as part of the consideration therefor, provided that (a) such Indebtedness is unsecured and is subordinated to the Obligations on terms reasonably acceptable to the Administrative Agent (including, without limitation, in amount, amortization, maturity, interest rate, premiums, fees, covenants, subordination, events of default and remedies) and (b) such Indebtedness was not created in contemplation of such Permitted Acquisition; Indebtedness in respect of Hedging Obligations permitted under Section 7.3(P); Indebtedness evidenced by the Mandara Subordinated Notes and the Shiseido Note; Indebtedness in respect of profit sharing plans of the Borrower and its Subsidiaries; Indebtedness set forth on Schedule 7.3(A) hereto arising out of or incurred in respect of the Acquisition Transactions; and additional unsecured Indebtedness in an aggregate amount at any time outstanding not exceeding $3,000,000.
Appears in 2 contracts
Sources: Credit Agreement (Steiner Leisure LTD), Credit Agreement (Steiner Leisure LTD)
Indebtedness. The Borrower shall will not, and shall will not permit any of its Subsidiaries Subsidiary to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with in respect to of any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under to the Loan DocumentsLenders hereunder;
(b) Indebtedness outstanding on Liabilities of the date hereof Borrower and/or its Subsidiaries (other than for borrowed money) incurred in the ordinary course of its business and listed on Schedule 7.01in accordance with customary trade practices;
(c) Guaranty Obligations incurred by Existing Indebtedness, together with all accrued and unpaid interest thereon, of the Borrower and/or any Subsidiary referred to in Schedule 3.8 attached hereto, and refinancings thereof in an amount not more than the greater of (i) the respective unpaid principal amounts thereof or any Guarantor (ii) the respective principal amounts available to be drawn thereunder on the date hereof, in respect of each case as specified in such schedule, together with all accrued and unpaid interest thereon;
(d) Indebtedness of the Borrower and/or any Subsidiary secured as permitted by, and subject to the proviso to, subparagraph (c) of subsection 6.2;
(e) Unsecured Indebtedness incurred or assumed in connection with (i) any Guarantor that is Permitted Acquisition consummated pursuant to subsection 6.17.A hereof in an amount not to exceed seventy-five percent (75%) of the purchase price of such Permitted Acquisition (excluding as Indebtedness incurred or assumed for the purpose of this computation, any promissory notes issued in connection with and included in the payment of the purchase price of any such Permitted Acquisition) and (ii) any Permitted Acquisition consummated pursuant to subsection 6.17. B hereof;
(f) Indebtedness in respect of promissory notes issued in connection with any Permitted Acquisition and secured as permitted by this Section 7.01 subparagraph (other than clause l) of subsection 6.2;
(g) below)Other secured Indebtedness incurred or assumed in connection with any Permitted Acquisition consummated pursuant to (i) subsection 6.17. A hereof in an aggregate principal amount at any time outstanding not to exceed $500,000 and (ii) subsection 6.17 B hereof;
(h) Other unsecured Indebtedness not to exceed $100,000;
(i) Indebtedness in respect of Capital Lease Obligations (i) taxes, assessments, governmental charges or levies and purchase money obligations claims for tangible propertylabor, materials and supplies to the extent that payment thereof shall not at the time be required to be made or is being contested in accordance with the provisions of subsection 5.4 hereof, (ii) Indebtedness judgments or awards which have been in force for less than the applicable appeal period so long as execution is not levied thereunder or in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to which the Borrower or any Subsidiary shall in good faith be prosecuting an appeal or proceedings for review in a manner reasonably satisfactory to the Agent and in respect of which a stay of execution shall have been obtained pending such appeal or review and for which adequate reserves have been established in accordance with, and to the Borrower; providedextent required by, howeverGAAP, that (x) all such Indebtedness (other than the Indebtedness described in clause and (iii) endorsements made in connection with the deposit of items for credit or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, collection in the case ordinary course of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is madebusiness; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;and
Appears in 2 contracts
Sources: Revolving Credit Loan Agreement, Revolving Credit Loan Agreement (Harvard Bioscience Inc)
Indebtedness. The Borrower shall Company will not, and shall will not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness except for the followingIndebtedness, other than:
(a) Indebtedness under in respect of the Loan DocumentsObligations;
(b) Indebtedness (including the full amount of any undrawn or unutilized commitment that exists on the Closing Date) existing as of the Closing Date which is identified in Item 7.2.2(b) of the Disclosure Schedule and any refinancing of such Indebtedness in a principal commitment amount not in excess of that which is outstanding on the date hereof Closing Date (as such amount has been reduced following the Closing Date) and, in the case of any refinancing of the Material Debt, (i) neither the final maturity nor the weighted average life to maturity of such Indebtedness is decreased, (ii) the original obligors in respect of such Indebtedness remain the only obligors thereon, (iii) if such Indebtedness was initially subordinated to the Obligations hereunder, it remains so subordinated and listed on Schedule 7.01(iv) if such Indebtedness was initially unsecured, it remains so unsecured;
(c) Guaranty Obligations unsecured Indebtedness (i) incurred by in the Borrower ordinary course of business of the Company and its Subsidiaries or any Guarantor (ii) in respect of performance, surety or appeal bonds provided in the ordinary course of business, but excluding (in each case), Indebtedness incurred through the borrowing of money or Contingent Liabilities in respect thereof;
(d) Indebtedness (i) in respect of industrial revenue bonds or other similar governmental or municipal bonds or governmental loans, (ii) evidencing the deferred purchase price of newly acquired property, incurred to finance the acquisition of equipment of the Company and its Subsidiaries or for construction on or improvement of any property of the Company or its Subsidiaries (pursuant to purchase money mortgages or otherwise, whether owed to the seller or a third party) used in the ordinary course of business of the Company and its Subsidiaries (provided, that such Indebtedness is incurred within 180 days of the acquisition of such property or the completion of such construction or improvement thereof), or (iii) in respect of Capitalized Lease Liabilities; provided, that the aggregate amount of all Indebtedness outstanding pursuant to this clause shall not at any time exceed $50,000,000;
(e) Indebtedness of any Subsidiary owing to the Company or any other Subsidiary and Indebtedness of the Borrower Company owing to any Subsidiary;
(f) Indebtedness of a Person existing at the time such Person became a Subsidiary of the Company, but only if such Indebtedness was not created or incurred in contemplation of such Person becoming a Subsidiary and the aggregate outstanding amount of all Indebtedness existing pursuant to this clause does not exceed $20,000,000 at any Guarantor time and any refinancing of such Indebtedness in a principal commitment amount not in excess of that which is permitted by this Section 7.01 (other than clause outstanding on the date such Person became a Subsidiary of the Company;
(g) below)Indebtedness incurred under the Permitted Receivables Programs;
(h) Indebtedness of Foreign Subsidiaries in connection with local lines of credit in an aggregate amount not to exceed $50,000,000, and Contingent Liabilities of the Company in respect of the foregoing;
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower Company and its Subsidiaries in connection with a Permitted Acquisitioncredit cards issued to employees in the ordinary course of business;
(j) Indebtedness in respect of Hedging Obligations entered into not for speculative purposes;
(k) other Indebtedness of the Company and its Subsidiaries in an aggregate amount at any time outstanding not to exceed the greater of $100,000,000 and 8% of Consolidated Total Assets;
(l) Indebtedness in respect of lines of credit in an aggregate amount not to exceed $30,000,000 for overseas borrowings and overdrafts;
(m) Incremental Equivalent Debt;
(n) in addition to the Indebtedness permitted above, additional senior, senior subordinated or subordinated Indebtedness (the Indebtedness incurred pursuant to this Section 7.2.2(n); provided, however, that the “Ratio Debt Basket”) in an aggregate amount not in excess of (1) $250,000,000 less the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by incurred pursuant to clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from of Section 2.11(a) at or prior to such time plus (2) additional amounts so long as, on a pro forma basis on the Borrower date of incurrence, after giving effect to the incurrence of any such Indebtedness and after giving effect to any Guarantor; pro forma adjustments for transactions consummated in connection therewith (ii) from any Subsidiary provided that the proceeds of such Indebtedness being incurred shall not be netted against Total Funded Indebtedness for purposes of the Borrower calculation relating to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreementincurrence), (ya) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described that is secured on a pari passu or junior basis with the Obligations, the Senior Secured Net Leverage Ratio does not exceed 3.00 to 1.00 or (b) in clause (v) onlythe case of Indebtedness that is unsecured, the Fixed Charge Coverage Ratio shall not permit be at least 2.00 to 1.00; provided that, in each case, to the extent any cash payments such Incremental Commitments are intended to be applied to finance a Limited Condition Acquisition, for the purposes of any kind determining pro forma compliance with the Senior Secured Net Leverage Ratio or Fixed Charge Coverage Ratio, as applicable, the date of determination thereof shall, at the Company’s option, be the LCA Test Date, and if, after giving pro forma effect to the Limited Condition Acquisition and other transactions to be entered into in connection therewith as if they had occurred at the beginning of the most recent Reference Period ending prior to the Maturity LCA Test Date, and (z) any payment by any the Company could have taken such Guarantor under any guaranty of action on the Obligations relevant LCA Test Date in compliance with such Senior Secured Net Leverage Ratio or Fixed Charge Coverage Ratio, as applicable, such Senior Secured Net Leverage Ratio or Fixed Charge Coverage Ratio, as applicable, shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary be deemed to the Borrower or to any of its Subsidiaries for whose benefit such payment is madehave been complied with; provided, further that, in each case, at the time of incurrence thereof, (i) immediately before and immediately after giving effect to such incurrence on a pro forma basis, no Default or Event of Default shall have occurred and be continuing; provided, that if the proceeds thereof are being used to finance a Limited Condition Acquisition, then the condition set forth in this clause (i) shall only be required to be satisfied as of the LCA Test Date, (ii) the maturity date thereof shall not be earlier than the Stated Term Maturity Date and the weighted average life to maturity shall be equal to or greater than the weighted average life to maturity of Term Loans, (iii) if such Indebtedness is secured, such Indebtedness shall not be secured by any assets other than the Collateral, (iv) if such Indebtedness is guaranteed, such Indebtedness shall not be guaranteed by any other Person who is not a Guarantor, (v) if such Indebtedness is incurred pursuant to clause (2)(a) above, such Indebtedness shall be subject to an Acceptable Intercreditor Agreement and/or Acceptable Subordination Agreement, as applicable and (vi) except as otherwise required in clauses (ii) through (v) above, the terms of such Indebtedness shall be no more favorable (taken as a whole) to the lenders providing such Indebtedness than the terms of the initial Term Loans (except to the extent such terms are applicable after the Stated Term Maturity Date); provided, further, that the maximum aggregate principal amount of Indebtedness that may be incurred pursuant to this clause (n) by Subsidiaries that are not Guarantors (together with Indebtedness in respect thereof under Section 7.2.2(o)) shall not exceed the greater of $75,000,000 and 6.0% of Consolidated Total Assets; provided, further, that Indebtedness that ranks pari passu in right of payment and security with the Term Facility shall be subject to the provisions of Section 2.11(b)(iv) as though such Indebtedness were incurred as Incremental Term Loans;
(o) Indebtedness incurred or assumed in connection with a Permitted Acquisition, so long as, (i) on a pro forma basis on the date of incurrence, after giving effect to such Permitted Acquisition, either (x) the Company can incur $1 of Indebtedness under the Ratio Debt Basket or (y) in the case of Indebtedness described in clauses (i)that is unsecured, the Fixed Charge Coverage Ratio is greater than the Fixed Charge Coverage Ratio immediately prior to the incurrence of such Indebtedness, (ii)) at the time of incurrence thereof, immediately before and immediately after giving effect to such incurrence on a pro forma basis, no Default or Event of Default shall have occurred and be continuing; provided, that if the proceeds thereof are being used to finance a Limited Condition Acquisition, then the condition set forth in this clause (ii) shall only be required to be satisfied as of the LCA Test Date, (iii) such Indebtedness is in compliance with clauses (ii) through (vi) of Section 7.2.2(n), as applicable, and (iv) aboveIndebtedness that ranks pari passu in right of payment and security with the Obligations shall be subject to the provisions of Section 2.11(b)(iv) as though such Indebtedness were incurred as Incremental Term Loans; provided, that the Investment maximum aggregate principal amount of Indebtedness that may be incurred by Subsidiaries that are not Guarantors pursuant to this clause (o) (together with Indebtedness in the intercompany loan by the lender respect thereof is permitted under Section 7.03;7.2.2(n)) shall not exceed the greater of $75,000,000 and 6.0% of Consolidated Total Assets; and
(p) Indebtedness incurred by Subsidiaries that are not Guarantors in an aggregate amount not to exceed the greater of $100,000,000 and 8% of Consolidated Total Assets, which amount shall be in addition to any Indebtedness incurred by Subsidiaries that are not Guarantors permitted by Sections 7.2.2(n) or 7.2.2(o).
Appears in 1 contract
Sources: Credit Agreement (Ferro Corp)
Indebtedness. The Borrower shall not, and shall not permit Neither the Parent nor any of its Subsidiaries to, shall directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for Indebtedness, except, (x) with respect to the followingParent, the Parent Permitted Indebtedness, and (y) with respect to the Parent's Subsidiaries:
(ai) Indebtedness under the Loan DocumentsSecured Obligations;
(bii) Permitted Existing Indebtedness outstanding on the date hereof and listed on Schedule 7.01Permitted Refinancing Indebtedness;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(iiii) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, secured by Customary Permitted Liens;
(iiiv) Indebtedness in respect of sale and leaseback transactions constituting Contingent Obligations permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k7.3(E);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(fv) Indebtedness arising from intercompany loans and advances (ia) from any Loan Party (other than the Parent) to any other Loan Party (other than the Parent) or any wholly-owned Subsidiary thereof or (b) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor Parent to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior Parent in order to effect the SpinoffSpin-Off Transactions, from MII or any Affiliate of MII (other than as specifically described in the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the BorrowerForm 10; provided, howeverthat if the Borrowers or any Guarantor is the obligor on such Indebtedness, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant expressly subordinate to the Collateral Agreement (if payment in full in cash of the payee is a Loan Party that is a party Secured Obligations on terms satisfactory to the Collateral Agreement)Administrative Agent;
(vi) secured or unsecured purchase money Indebtedness (including Capitalized Leases) incurred by the Borrowers or any of their respective Subsidiaries after the Effective Date to finance the acquisition of fixed assets, if (1) at the time of such incurrence, no Default or Unmatured Default has occurred and is continuing or would result from such incurrence, (y2) all such Indebtedness (other than the Indebtedness described in clauses (i)has a scheduled maturity and is not due on demand, (iii3) and such Indebtedness does not exceed the lower of the fair market value or the cost of the applicable fixed assets on the date acquired, (iv4) of this clause (f)) shall be Subordinated Debt and, such Indebtedness does not exceed $10,000,000 in the case of Indebtedness described in clause (v) only, shall not permit aggregate principal amount outstanding at any cash payments of any kind prior to the Maturity Datetime, and (z5) any payment by any Lien securing such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.037.3(C) (such Indebtedness being referred to herein as "PERMITTED PURCHASE MONEY INDEBTEDNESS");
(vii) Indebtedness with respect to surety, appeal and performance bonds obtained by the Borrowers or any of their respective Subsidiaries in the ordinary course of business;
(viii) Indebtedness incurred by the Borrowers or any of their respective Subsidiaries (whether assumed by the Borrowers or such Subsidiary or issued to the seller) in any Permitted Acquisition as part of the consideration therefor, provided that (a) such Indebtedness is unsecured and is subordinated to the Obligations on terms reasonably acceptable to the Administrative Agent (including, without limitation, in amount, amortization, maturity, interest rate, premiums, fees, covenants, subordination, events of default and remedies) and (b) such Indebtedness was not created in contemplation of such Permitted Acquisition;
(ix) guarantees by the Borrowers of Indebtedness permitted to be incurred by any Subsidiary;
(x) Indebtedness in respect of Hedging Obligations permitted under Section 7.3(P);
(xi) Off-Balance Sheet Liabilities in an amount not to exceed $10,000,000 in the aggregate at any time outstanding; and
(xii) additional unsecured Indebtedness in an aggregate amount at any time outstanding not exceeding $10,000,000
Appears in 1 contract
Indebtedness. The Borrower Each of the Borrowers and the Guarantor shall not, and nor shall not any of them permit any of its their respective Subsidiaries to, directly or indirectly create, incur, assume or otherwise become suffer to exist any Indebtedness, except for: (i) Indebtedness to the Lender; (ii) Subordinated Indebtedness; (iii) the Indebtedness incurred and owed under that certain Asset Purchase Agreement dated May 12, 1999 between CHSI and Community Health Insurance Company (the "Anthem Indebtedness"); (iv) capitalized lease obligations and purchase money Indebtedness reflected on the Balance Sheet or remain directly in historical financial statements heretofore provided to the Lender; (v) other capitalized lease obligations and purchase money Indebtedness incurred in any Fiscal Year commencing after the date hereof up to an aggregate amount of $200,000 (per Fiscal Year); (vi) Indebtedness of the Guarantor under the Subordinated Note in an amount not in excess of $6,000,000 (plus the amount of any so-called "PIK Notes" issued pursuant to the Subordinated Note Purchase Agreement), as reduced by any principal prepayments of the same; (vii) inter-company Indebtedness between or indirectly liable with respect to any Indebtedness except for among one or more of the following:
Borrowers; (aviii) the Temporary Kentucky LC; (ix) Indebtedness under the Loan Documents;
Tax Allocation Agreement; (bx) Indebtedness outstanding on under the date hereof Deferred Compensation Plan and listed on Schedule 7.01;
accrued incentive compensation expenses; (cxi) Guaranty Obligations Indebtedness incurred as a result of the accrual of the Performance Fee (as defined in the Subordinated Note Purchase Agreement); and (xii) trade liabilities and accrued expenses incurred in the ordinary course of business. Except as otherwise provided, all Indebtedness permitted to be created, incurred, assumed or suffered by the Borrower or any Guarantor in respect of Borrowers and the Guarantor, as applicable, pursuant to this Section shall be considered (but without duplication) Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 Borrowers and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d)Guarantor, 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;applicable.
Appears in 1 contract
Indebtedness. The (a) Neither the U.S. Borrower shall not, and shall not permit nor any of its the Subsidiaries to, shall directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, the incurrence of which would cause the U.S. Borrower to violate the financial covenant set forth in Section 6.12 (giving effect to such incurrence of Indebtedness except for on a pro forma basis as if such incurrence (and the following:
application of any proceeds therefrom, including the repayment of any Indebtedness with the proceeds of the Indebtedness being so incurred) occurred on the first day of the applicable four fiscal quarter period ended immediately prior to such incurrence) to the extent such Section is in effect as of the date of such determination (aor would be in effect after giving effect to such incurrence of Indebtedness). It is understood and agreed that any Indebtedness incurred (or deemed to be incurred) under Section 6.01(a) of the Existing Credit Agreement, to the extent such Indebtedness under was, at the Loan Documents;time of such incurrence (or deemed incurrence), permitted to be so incurred thereunder (or deemed incurred thereunder), shall be deemed to have been incurred under, and in compliance with, this Section 6.01(a) as of the Restatement Effective Date.
(b) Neither the U.S. Borrower nor any of the Subsidiaries shall at any time permit the sum, without duplication, of (i) all Indebtedness outstanding on of the date hereof U.S. Borrower and listed on Schedule 7.01;the Subsidiaries secured by Liens plus (ii) all Indebtedness of the Subsidiaries (including Subsidiaries acquired after the Restatement Effective Date) to exceed $500,000,000 at any time outstanding.
(c) Guaranty Notwithstanding anything to the contrary in paragraph (b) of this Section 6.01, the following Indebtedness of the U.S. Borrower and the Subsidiaries (including Subsidiaries acquired after the Restatement Effective Date) shall not be prohibited by Section 6.01(b) and shall not be included in calculating the levels of Indebtedness permitted under Section 6.01(b) regardless of whether such Indebtedness is secured as permitted by Section 6.02:
(i) (x) Indebtedness created under the Loan Documents and (y) other Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals and replacements of any such Indebtedness, provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the original Indebtedness being extended, renewed or replaced (other than in the case of Guarantees otherwise permitted by clause (iii) of this Section 6.01(c)), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), (C) shall not have an earlier maturity date or shorter weighted average life to maturity than the Indebtedness being extended, renewed or replaced and (D) shall be subordinated to the Obligations incurred by to the same extent as the Indebtedness being extended, renewed or replaced, if applicable;
(ii) Indebtedness of the U.S. Borrower to any Subsidiary and of any Subsidiary to the U.S. Borrower or any Guarantor in respect other Subsidiary, provided that (A) Indebtedness of any Subsidiary (other than a Loan Party) owing to any Loan Party shall be subject to Section 6.04 and (B) Indebtedness of either Borrower to any Subsidiary or of any other Loan Party to any other Subsidiary (other than a Loan Party) shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(iii) Guarantees by the U.S. Borrower of Indebtedness of any Subsidiary, and by any Subsidiary of Indebtedness of the U.S. Borrower or any Guarantor other Subsidiary, provided that is permitted (A) the Indebtedness so Guaranteed shall not be prohibited by this Section 7.01 (other than clause (gc)(ii)) below)and (B) Guarantees by any Loan Party of Indebtedness of any Subsidiary (other than a Loan Party) shall be subject to Section 6.04;
(iiv) (A) Indebtedness in respect of the U.S. Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and purchase money obligations for tangible property, (ii) any Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or that is assumed by the U.S. Borrower and its Subsidiaries or any Subsidiary or that remains Indebtedness of an acquired entity in connection with the acquisition of any such assets or secured by a Permitted AcquisitionLien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, provided that the aggregate principal amount of all such Indebtedness permitted by this subsection clause (div) at any one time outstanding incurred after the Restatement Effective Date shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)125,000,000 at any time outstanding;
(ev) renewals, extensions, refinancings and refundings Indebtedness in respect of Indebtedness Swap Agreements permitted by clause Section 6.06; and
(bvi) Indebtedness in respect of any financing or (d) above capital lease financing relating to the U.S. Borrower’s or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is Subsidiary’s sea vessels in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and to exceed $50,000,000 at any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;time outstanding.
Appears in 1 contract
Sources: Credit Agreement (Usg Corp)
Indebtedness. The Borrower shall not, and shall not permit No Restricted Person will in any of its Subsidiaries to, directly manner owe or indirectly create, incur, assume or otherwise become or remain directly or indirectly be liable with respect to any for Indebtedness except for the followingexcept:
(ai) Indebtedness under the Loan DocumentsObligations;
(bii) any Indebtedness outstanding on owed by a Restricted Person (other than the date hereof and listed on Schedule 7.01Borrowers) to another Restricted Person;
(ciii) Guaranty Obligations incurred Indebtedness owed by the Borrower Borrowers to another Restricted Person or by any Guarantor Restricted Person to a third party which Indebtedness is subordinated to the Obligations upon terms and conditions satisfactory to the Agent in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 its sole and absolute discretion (other than clause (g) belowherein called “Subordinated Indebtedness”);
(iiv) Indebtedness in respect outstanding under the instruments and agreements described on the Disclosure Schedule, including any renewals or extensions of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall which do not exceed $200,000,000 and increase the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)principal thereof;
(ev) renewals, extensions, refinancings and refundings of purchase money Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not to exceed the greater than of (x) $3,000,000 or (y) 10% of the aggregate Loans outstanding under this Agreement at the time the purchase money Indebtedness is incurred, provided that the original principal amount of any such Indebtedness shall not be in excess of the purchase price of the asset acquired thereby and such Indebtedness shall be secured only by the acquired asset;
(plus reasonable feesvi) Permitted Hedging Debt;
(vii) Indebtedness owed by a Restricted Subsidiary subsequently acquired by the Borrowers, expenses directly or through one of the Borrowers’ then existing Restricted Subsidiaries, which Indebtedness was not incurred in contemplation of the Borrowers’ acquisition of such Person and which Indebtedness is either unsecured or secured only by the assets of the acquired Person;
(viii) Indebtedness owed by AEI under the Senior Notes and the Senior Subordinated Notes and any premium incurred in connection with the renewalrefinancings thereof, extension, refinancing or refunding of such Indebtedness), and is on terms no less favorable to AEI than the terms of the Senior Notes and the Senior Subordinated Notes set forth in the Restructuring Plan (as determined by the Agent, which determination shall not be unreasonably withheld or delayed) except that in no event will the refinancing of the Senior Notes or the Senior Subordinated Notes result in the cash payment of interest with respect to such Notes or the occurrence of the maturity date of the Senior Notes or the Senior Subordinated Notes, in either case prior to the date that is 91 days after the Loan Maturity Date; and;
(ix) miscellaneous items of Indebtedness not described in subsections (i) through (vii) which do not in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) taking into account all such Indebtedness (other than the Indebtedness described in clause (iiiof all Restricted Persons) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit exceed $1,000,000 at any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;one time outstanding.
Appears in 1 contract
Sources: Loan Agreement (Ascent Energy Inc)
Indebtedness. (a) The Borrower shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly indirectly, create, incur, assume issue, assume, guarantee or otherwise become or remain directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness except for the following:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by Acquired Debt), and the Borrower will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries in connection with a Permitted Acquisition)to issue any shares of preferred stock; provided, however, that the Borrower may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Debt) or issue preferred stock, if the Fixed Charge Coverage Ratio for the Borrower’s most recently ended Calculation Period immediately preceding the date on which such Indebtedness is incurred or such Disqualified Stock or preferred stock is issued would have been at least 2.00:1.00, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if such Indebtedness (including Acquired Debt) had been incurred or Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such Calculation Period.
(b) The provisions of Section 10.04(a) will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(i) (A) the incurrence of Indebtedness and Letters of Credit hereunder and under the other Credit Documents (other than any Indebtedness and Letters of Credit arising from Commitments pursuant to and in accordance with Section 2.15) and (B) the incurrence by the Borrower and/or any Subsidiary Guarantor of Indebtedness and letters of credit under other Credit Facilities and Indebtedness and Letters of Credit arising from Commitments pursuant to and in accordance with Section 2.15 in an aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall (as measured on each date of an incurrence pursuant to this clause (i)(B)) under this clause (i)(B) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Borrower and its Restricted Subsidiaries thereunder) not to exceed $200,000,000 the Maximum Incremental Facilities Amount;
(ii) the incurrence by the Borrower and its Restricted Subsidiaries of the Existing Indebtedness and any Permitted Refinancing Indebtedness incurred in respect thereof;
(iii) the incurrence by the Borrower and the Liens securing such Subsidiary Guarantors of Indebtedness shall be within represented by any Credit Agreement Refinancing Indebtedness;
(iv) the limitations set forth incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in Sections 7.02(deach case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement or lease of property (real or personal), 7.02(eplant or equipment used or useful in the business of the Borrower or any of its Restricted Subsidiaries or incurred within 270 days thereafter, in an aggregate principal amount at any time outstanding (as measured on the date of each incurrence of Indebtedness pursuant to this clause (iv), but at that time including for purposes of calculation any then outstanding Permitted Refinancing Indebtedness incurred to refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (iv)), not to exceed the greater of (A) $500,000,000 and (B) 5.0% of Consolidated Total Assets;
(v) the incurrence by the Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease or discharge Indebtedness (other than Intercompany Indebtedness) that was permitted by this Agreement to be incurred under Section 10.04(a) or 7.02(kSections 10.04(b)(ii), (iii), (iv), (v), (xv), (xvi), (xvii) and (xxiii);
(evi) renewals, extensions, refinancings the incurrence by the Borrower or any of its Restricted Subsidiaries of Intercompany Indebtedness between or among the Borrower and refundings any of Indebtedness permitted by clause (b) or (d) above or this clause (e)its Restricted Subsidiaries; provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;that:
(fA) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to if the Borrower or any Guarantor; (iii) from any Subsidiary of Guarantor is the Borrower that obligor on such Indebtedness and the payee is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to any Subsidiary the prior payment in full in cash of the Borrower Obligations; and
(B) (x) any subsequent issuance or transfer of Equity Interests that is not results in any such Indebtedness being held by a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (Person other than the Borrower or a Restricted Subsidiary of the BorrowerBorrower and (y) any sale or other transfer of any such Indebtedness to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) the issuance by any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary ’s Restricted Subsidiaries to the Borrower or to any of its Restricted Subsidiaries for whose benefit such payment is madeof shares of preferred stock; provided, further however, that:
(A) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Borrower or a Restricted Subsidiary; and
(B) any sale or other transfer of any such preferred stock to a Person that is not either the Borrower or a Restricted Subsidiary, will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (vii);
(viii) the incurrence by the Borrower or any of its Restricted Subsidiaries of Hedging Obligations (including any upfront payments paid in connection therewith), in each case, entered into by the Borrower or any Restricted Subsidiary, in the ordinary course of business, or, with respect to any such Hedging Obligations constituting Commodity Hedging Agreements, entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business or otherwise consistent with Prudent Industry Practice in order to manage fluctuations in the price or availability to the Borrower or any Restricted Subsidiary of any commodity and/or manage the risk of adverse or unexpected weather conditions;
(ix) the guarantee by (A) the Borrower or any of the Subsidiary Guarantors of Indebtedness of the Borrower or a Subsidiary Guarantor that was permitted to be incurred by another provision of this Section 10.04; and (B) any Excluded Subsidiaries of Indebtedness of any other Excluded Subsidiary; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Obligations, then the guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(x) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness arising from customary cash management services, netting arrangements, automated clearing house transfers, or the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) inadvertently drawn against insufficient funds in the ordinary course of business;
(xi) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in respect of (x) self-insurance obligations, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance, unemployment insurance or other social security legislation or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims and (y) warehouse receipts or similar instruments, performance and surety bonds provided by the Borrower or a Restricted Subsidiary in the ordinary course of business or in connection with judgments that do not result in an Event of Default and obligations in respect of performance and completion guarantees and similar obligations provided by the Borrower or any of its Restricted Subsidiaries; in each case created or issued in a manner consistent with past practice;
(xii) the incurrence of Non-Recourse Debt by any Excluded Project Subsidiary;
(xiii) the incurrence of Indebtedness that may be deemed to arise as a result of agreements of the Borrower or any Restricted Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or any similar obligations, in each case, incurred in connection with the disposition of any business, assets or Equity Interests of any Subsidiary; provided that the aggregate maximum liability associated with such provisions may not exceed the gross proceeds (including non-cash proceeds) of such disposition;
(xiv) the incurrence by the Borrower or any Restricted Subsidiary of one or more credit facilities (which shall be in the form of credit default swap-collateralized facilities, letter of credit facilities, or other revolving credit facilities) in an aggregate principal amount at any time outstanding not to exceed the greater of (A) $500,000,000 and (B) 5.0% of Consolidated Total Assets;
(xv) Indebtedness, Disqualified Stock or preferred stock of Persons or assets that are acquired by the Borrower or any Restricted Subsidiary of the Borrower or merged into the Borrower or a Restricted Subsidiary of the Borrower in accordance with the terms of this Agreement; provided that such Indebtedness, Disqualified Stock or preferred stock is not incurred in contemplation of, or to finance, such acquisition or merger; provided, further, that after giving effect to such acquisition or merger, either:
(A) the Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 10.04(a); or
(B) the Fixed Charge Coverage Ratio would be no less than immediately prior to such acquisition or merger;
(xvi) Environmental CapEx Debt; provided that prior to the incurrence of any Environmental CapEx Debt, the Borrower shall deliver to the Administrative Agent an Officer’s Certificate designating such Indebtedness as Environmental CapEx Debt;
(xvii) Indebtedness incurred to finance Necessary Capital Expenditures; provided that prior to the incurrence of any Indebtedness to finance Necessary Capital Expenditures, the Borrower shall deliver to the Administrative Agent an Officer’s Certificate designating such Indebtedness as Necessary CapEx Debt;
(xviii) Indebtedness of the Borrower or any Restricted Subsidiary consisting of (A) the financing of insurance premiums and (B) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(xix) the incurrence of Indebtedness in connection with receivables factoring facilities;
(xx) [reserved];
(xxi) following the Spin-Off and to the extent RJS and its Subsidiaries are direct or indirect Restricted Subsidiaries of the Borrower, the incurrence of Indebtedness in respect of the RJS Notes and any Permitted Refinancing Indebtedness in respect thereof;
(xxii) Indebtedness (A) representing deferred compensation or similar obligations to employees incurred in the ordinary course of business and (B) consisting of obligations under deferred compensation or other similar arrangements incurred by such Person in connection with any Permitted Investment;
(xxiii) the incurrence by the Borrower and/or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding (as measured on the date of each incurrence of Indebtedness pursuant to this clause (xxiii), but at that time including for purposes of calculation any then outstanding Permitted Refinancing Indebtedness incurred to refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (xxiii)), not to exceed the greater of (A) $500,000,000 and (B) 5.0% of Consolidated Total Assets; and
(xxiv) Indebtedness incurred under the Secured Trading Facility or similar Indebtedness under secured trading facilities entered into on or after the Closing Date in an aggregate principal amount under this clause (xxiv) not to exceed $1,300,000,000.
(c) The Borrower will not incur, and will not permit any Subsidiary Guarantor to incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Borrower or such Subsidiary Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Obligations on substantially identical terms; provided, however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Borrower solely by virtue of being unsecured or by virtue of being secured on a first or junior Lien basis.
(d) For purposes of determining compliance with this Section 10.04, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in Section 10.04(b), or is entitled to be incurred pursuant to Section 10.04(a), the Borrower will be permitted to classify such item of Indebtedness, other than Indebtedness incurred under Section 2.15 or 10.04(b)(i)(B) on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 10.04. Indebtedness under this Agreement outstanding on the Closing Date will initially be deemed to have been incurred on such date in reliance on the exception provided by clause (i) of Section 10.04(b). The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 10.04; provided, in each such case, that the amount thereof is included in Fixed Charges of the Borrower as accrued.
(e) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency will be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-dominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-dominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of the Indebtedness being refinanced.
(f) The amount of any Indebtedness outstanding as of any date will be (i) the accreted value of the Indebtedness, in the case of any Indebtedness described issued with original issue discount; (ii) the principal amount of the Indebtedness, in clauses the case of any other Indebtedness; and (iii) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of (A) the Fair Market Value of such asset at the date of determination, and (B) the amount of the Indebtedness of the other Person; provided that any changes in any of the above shall not give rise to a default under this Section 10.04.
(g) Notwithstanding the foregoing or anything to the contrary set forth herein, after the Closing Date, Raven FS Property Holdings LLC may only incur Indebtedness under the following subclauses of Section 10.04(b): (i), (iiiii) (to the extent such Credit Agreement Refinancing Indebtedness is either secured by Liens on a pari passu or junior lien basis with the Liens securing the Obligations or expressly subordinated to the prior payment in full in cash of the Obligations), (iiiiv), (v) and (ivto the extent such Indebtedness could have otherwise been incurred under this clause 10.04(g)), (vi), (viii) above, (to the Investment in extent such Hedging Obligations are either secured by Liens on a pari passu or junior lien basis with the intercompany loan by the lender thereof is permitted under Section 7.03;Liens sec
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Indebtedness. The Neither the Borrower shall not, and shall not permit nor any of its Subsidiaries to, shall directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingIndebtedness, except:
(ai) Indebtedness under the Loan DocumentsObligations;
(bii) Indebtedness outstanding on trade payables, wages and other accrued expenses incurred in the date hereof and listed on Schedule 7.01ordinary course of business;
(ciii) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below)Transaction Costs;
(iiv) to the extent permitted by ARTICLE IX and the RCL Loan Agreement and in any event in an aggregate amount not to exceed $3,000,000 at any time, Capital Leases and purchase money Indebtedness incurred to finance the acquisition of fixed assets, and Indebtedness incurred to refinance such Capital Leases and purchase money Indebtedness;
(v) Indebtedness in respect of Capital Lease Obligations taxes, assessments, governmental charges and purchase money obligations claims for tangible propertylabor, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred materials or assumed by supplies, to the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, extent that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall payment thereof is not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)required pursuant to SECTION 7.04;
(evi) renewals, extensions, refinancings and refundings of Indebtedness constituting Accommodation Obligations permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedSECTION 8.05;
(fvii) Indebtedness arising from intercompany loans (i) from the Borrower to Parent or any Guarantor; (ii) from any Subsidiary of the Borrower Borrower's wholly-owned Subsidiaries to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the SpinoffBorrower, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, howeverPROVIDED, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes (which, if payable to RCL, Recoil Holdings or Recoil Australia Holdings, shall be subject to a first priority Lien pursuant delivered to the Collateral Agreement (if Lender in accordance with the payee is a RCL Loan Party that is a party Documents) and shall be subordinated in right of payment to the Collateral Agreement)Obligations;
(viii) Indebtedness with respect to reasonable warranties and indemnities made under any agreements for asset sales permitted under SECTION 8.02;
(ix) Indebtedness with respect to warranties and indemnities in favor of Recoil Australia, Recoil U.S. and the Vendors under the Recoil Acquisition Documents;
(yx) all such Indebtedness (other than under the Indebtedness described in clauses (i)RCL Loan Agreement and any refinancing thereof, (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in provided that the case aggregate outstanding amount of Indebtedness described in this clause (vx) only, shall is not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan increased by the lender thereof is permitted under Section 7.03;refinancing; and
Appears in 1 contract
Indebtedness. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly createCreate, incur, assume assume, or otherwise become or remain directly or indirectly liable with respect suffer to exist, any Indebtedness except for the followingother than:
(ai) the Indebtedness hereunder and under the other Loan Documents;; and
(bii) Indebtedness outstanding on the date hereof which is reflected in the Borrower's financial statements referred to in Section 4.5(a) and listed in Schedule 4 annexed hereto;
(iii) unsecured liabilities (not the result of borrowing) incurred in the ordinary course of business for current purposes and not represented by any note or other evidence of Indebtedness and which are not past due more than 90 days;
(iv) non-recourse Indebtedness to third parties (Permissible Assumed Indebtedness);
(v) liability to a surety under performance bonds or similar instruments incurred in connection with the Borrower's construction of extended stay facilities on the Borrower's property;
(vi) Indebtedness due and payable solely to a Subsidiary of Borrower or by a Subsidiary to Borrower; and
(vii) The guaranty of lease obligations under the Sale-Leaseback Facility;
(viii) subject to Lenders prior written consent, which consent shall not be unreasonably withheld, and provided no Default or Event of Default has occurred, Indebtedness arising from the refinancing of the Indebtedness referred to in Schedule 7.014 annexed hereto; provided:
(a) such refinanced Indebtedness is not secured by any of the Collateral;
(b) then existing non-recourse Indebtedness is not exchanged for recourse (however limited) Indebtedness;
(c) Guaranty Obligations incurred by Borrower, prior to and following the Borrower or any Guarantor closing of such refinancing, is in respect of Indebtedness of compliance with the Borrower or any Guarantor that is permitted by covenants set forth in this Section 7.01 (other than clause (g) below);Article V; and
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at such refinanced Indebtedness does not make any one time outstanding shall not exceed $200,000,000 and change in, the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) condition or 7.02(k);
(e) renewals, extensions, refinancings and refundings affairs of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt andwhich, in the case of Indebtedness described in clause (v) onlyany Lender's opinion, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of increases its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;credit risk.
Appears in 1 contract
Indebtedness. The Borrower shall will not, and shall will not permit any of its Subsidiaries Subsidiary to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with in respect to of any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under to the Loan DocumentsLenders hereunder;
(b) Indebtedness outstanding on Liabilities of the date hereof Borrower and/or its Subsidiaries (other than for borrowed money) incurred in the ordinary course of its business and listed on Schedule 7.01in accordance with customary trade practices;
(c) Guaranty Obligations incurred by Existing Indebtedness, together with all accrued and unpaid interest thereon, of the Borrower and/or any Subsidiary referred to in Schedule 3.8 attached hereto, and refinancings thereof in an amount not more than the greater of (i) the respective unpaid principal amounts thereof or any Guarantor (ii) the respective principal amounts available to be drawn thereunder on the date hereof, in respect of each case as specified in such schedule, together with all accrued and unpaid interest thereon;
(d) Indebtedness of the Borrower and/or any Subsidiary secured as permitted by, and subject to the proviso to, subparagraph (c) of Section 6.2;
(e) Unsecured Indebtedness incurred or assumed in connection with (i) any Guarantor that is Permitted Acquisition consummated pursuant to Section 6.17.A hereof in an amount not to exceed seventy-five percent (75%) of the purchase price of such Permitted Acquisition (excluding as Indebtedness incurred or assumed for the purpose of this computation, any promissory notes issued in connection with and included in the payment of the purchase price of any such Permitted Acquisition) and (ii) any Permitted Acquisition consummated pursuant to Section 6.17. B hereof;
(f) Indebtedness in respect of promissory notes issued in connection with any Permitted Acquisition and secured as permitted by this subparagraph (l) of Section 7.01 (other than clause 6.2;
(g) below)Other secured Indebtedness incurred or assumed in connection with any Permitted Acquisition consummated pursuant to (i) Section 6.17. A hereof in an aggregate principal amount at any time outstanding not to exceed $500,000 and (ii) Section 6.17.B hereof;
(h) Other unsecured Indebtedness not to exceed $100,000;
(i) Indebtedness in respect of Capital Lease Obligations (i) taxes, assessments, governmental charges or levies and purchase money obligations claims for tangible propertylabor, materials and supplies to the extent that payment thereof shall not at the time be required to be made or is being contested in accordance with the provisions of Section 5.4 hereof, (ii) Indebtedness judgments or awards which have been in force for less than the applicable appeal period so long as execution is not levied thereunder or in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to which the Borrower or any Subsidiary shall in good faith be prosecuting an appeal or proceedings for review in a manner reasonably satisfactory to the Agent and in respect of which a stay of execution shall have been obtained pending such appeal or review and for which adequate reserves have been established in accordance with, and to the Borrower; providedextent required by, howeverGAAP, that (x) all such Indebtedness (other than the Indebtedness described in clause and (iii) endorsements made in connection with the deposit of items for credit or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, collection in the case ordinary course of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is madebusiness; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;and
Appears in 1 contract
Sources: Revolving Credit Loan Agreement (Harvard Bioscience Inc)
Indebtedness. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly create(a) Create, incur, assume assume, issue, guaranty or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness Indebtedness, except for the following:
following (a) “Permitted Indebtedness”): Indebtedness under the of Borrower pursuant to any Loan DocumentsDocument;
(b) Permitted Purchase Money Indebtedness outstanding on the date hereof (and listed on Schedule 7.01Refinancing Indebtedness in respect thereof);
(c) Guaranty Bank Product Indebtedness;
(d) Guarantee Obligations incurred made in the ordinary course of business by the Borrower Hermes or any Guarantor in respect of its Subsidiaries of obligations of Hermes or any of its Subsidiaries.
(e) Indebtedness of the Borrower Hermes or any Guarantor that is of its Subsidiaries under any Hedging Agreement permitted by this pursuant to Section 7.01 6.16;
(other than clause f) intercompany Indebtedness among Hermes and any of its Subsidiaries permitted pursuant to Section 6.8;
(g) below)unsecured current accounts payable incurred in the ordinary course of business which are (i) outstanding for not more than 90 days past the original invoice or billing date thereof or (ii) being contested in good faith by appropriate proceedings, if such reserve as may be required by GAAP shall have been made therefor;
(h) extensions of credit from suppliers or contractors who are not Affiliates of Borrower for the performance of labor or services or the provision of supplies or materials under applicable contracts or agreements, which are not more than 60 days overdue or are being contested in good faith by appropriate proceedings, if such reserves as may be required by GAAP shall have been made therefor;
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, taxes payable that are not overdue;
(iij) Indebtedness in respect of sale bid, performance or surety bonds, workers’ compensation claims, self-insurance obligations and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred bankers acceptances issued for the account of Par Wyoming, Hermes or assumed by the Borrower and its Subsidiaries in connection the ordinary course of business, including guarantees or obligations of Par Wyoming, Hermes or its Subsidiaries with respect to letters of credit supporting such bid, performance or surety bonds, workers’ compensation claims, self-insurance obligations and bankers acceptances (in each case other than for an obligation for money borrowed);
(k) Indebtedness arising from the honoring by a Permitted Acquisition)bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence;
(l) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(m) additional Indebtedness of Hermes and its Subsidiaries (including Capital Lease Obligations secured by Liens permitted by Section 6.3(j)) in an aggregate principal amount (for Hermes and all of its Subsidiaries) not to exceed $1,000,000 at any one time outstanding (and Refinancing Indebtedness in respect thereof);
(n) Indebtedness of Par Wyoming, Hermes and its Subsidiaries constituting First Lien Revolver Loans; provided that (i) the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d)60,000,000, 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority customary borrowing base formula and related mechanics substantially similar to those set forth in the First Lien pursuant to Credit Agreement as in effect as of the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), date hereof and (iii) and (iv) the proceeds of this clause (f)) such Indebtedness shall be Subordinated Debt and, used in the case ordinary course of business for working capital and general corporate purposes of Par Wyoming, Hermes and its Subsidiaries (and First Lien Refinancing Indebtedness described in respect thereof); and
(o) Indebtedness of Par Wyoming, Hermes and its Subsidiaries incurred prior to the date hereof that constitutes First Lien Term Loans; provided that the aggregate principal amount of such Indebtedness shall not exceed (i) $58,035,716.00 as of the Closing Date or (ii) at any time after the Closing Date, the amount set forth in clause (vi) only, shall not permit any cash minus all quarterly amortization of $2,321,428 payments of any kind payable at or prior to the Maturity Date, and (ztime of determination pursuant to Section 5.3(a) any payment by any such Guarantor under any guaranty of the Obligations shall result First Lien Credit Agreement as in a pro tanto reduction effect as of the amount of any Indebtedness owed by such Subsidiary to the Borrower or date hereof (without giving effect to any of its Subsidiaries for whose benefit amendment, modification or waiver with respect to such payment is made; provided, further that, obligations) (and First Lien Refinancing Indebtedness in the case of Indebtedness described in clauses (irespect thereof), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;.
Appears in 1 contract
Indebtedness. The Neither the Borrower shall not, and shall not permit nor any of its Subsidiaries to, shall directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingIndebtedness, except:
(ai) Indebtedness under the Loan DocumentsObligations;
(bii) Indebtedness outstanding on the date hereof Subordinated Notes and listed on Schedule 7.01any Permitted Refinancing Indebtedness, provided, however, that with respect to Subordinated Notes issued pursuant to the High Yield Note Agreement, the amount thereof may exceed the principal amount of the Subordinated Notes issued to LDI, Ltd. as of the Closing Date, but such Subordinated Notes must have a Weighted Average Life to Maturity that is equal to or greater than the Weighted Average Life to Maturity of the Subordinated Notes issued to LDI, Ltd. as of the Closing Date and must contain terms, including, without limitation, terms with respect to amount, maturity, amortization, interest rate, premiums, fees, redemption, covenants, subordination terms, events of default and remedies that are reasonably satisfactory to the Required Lenders;
(ciii) Guaranty Permitted Existing Indebtedness;
(iv) Indebtedness in respect of obligations secured by Customary Permitted Liens;
(v) Indebtedness constituting Contingent Obligations permitted by Section 7.3(E);
(vi) Indebtedness arising from intercompany loans from any Subsidiary to the Borrower or any wholly-owned Subsidiary;
(vii) Indebtedness arising from intercompany loans from the Borrower to Acquisition Corp. to fund the Tender Offer and the Merger;
(viii) secured or unsecured purchase money Indebtedness (including Capitalized Leases) incurred by the Borrower or any Guarantor of its Subsidiaries after the Closing Date to finance the acquisition of fixed assets, if (1) at the time of such incurrence, no Default or Unmatured Default has occurred and is continuing or would result from such incurrence, (2) such Indebtedness has a scheduled maturity and is not due on demand, (3) such Indebtedness does not exceed the lower of the fair market value or the cost of the applicable fixed assets on the date acquired, (4) such Indebtedness does not exceed $2,500,000 in the aggregate outstanding at any time, and (5) any Lien securing such Indebtedness is permitted under Section 7.3(C) (such Indebtedness being referred to herein as "Permitted Purchase Money Indebtedness");
(ix) Indebtedness with respect of Indebtedness of to surety, appeal and performance bonds obtained by the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below)of its Subsidiaries in the ordinary course of business;
(ix) Indebtedness incurred subsequent to the Closing Date by the Borrower or any of its Subsidiaries to the seller in any Permitted Acquisition as part of the consideration therefor, provided that such Indebtedness does not exceed $20,000,000 in the aggregate outstanding at any time, is unsecured and is otherwise on terms acceptable to the Agent; and
(xi) Indebtedness in respect of Capital Lease Hedging Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;7.3(P).
Appears in 1 contract
Sources: Credit Agreement (Finishmaster Inc)
Indebtedness. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly createCreate, incur, assume or otherwise become suffer to exist any Indebtedness, except: (a) obligations (contingent or remain directly otherwise) existing or indirectly liable with respect to arising under any Indebtedness except Secured Hedge Agreement, provided, that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the following:
purpose of directly mitigating risks associated with fluctuations in interest rates or foreign currency exchange rates and (aii) such Secured Hedge Agreement does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; (b) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
; (c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations inter-company advances or inter-company receivables between one or more Credit Parties; (d) to the extent constituting Indebtedness, Guaranties permitted pursuant to Section 7.03; (e) liabilities incurred in the ordinary course of business relating to Participations, other contingent compensation and/or Residuals incurred with respect to the production, distribution, acquisition or other exploitation of Covered Products; (f) Indebtedness of a Credit Party to an Approved Co-Financier in relation to a Covered Product; provided that (i) such Indebtedness is non-recourse to the assets of the Credit Parties other than with respect to the applicable Covered Product being co-financed between the Credit Party and purchase money obligations for tangible property, such Approved Co-Financier and (ii) if required by the Administrative Agent, a Co-Financing Intercreditor Agreement has been received by the Administrative Agent with respect to such co-financing; (g) unsecured liabilities for acquisitions of rights in any Covered Product and trade payables in each case incurred in the ordinary course of business and payable on normal trade terms and not otherwise prohibited hereunder; (h) Indebtedness arising in connection with transactions permitted under Section 7.22; (i) to the extent constituting Indebtedness, amounts payable to a Completion Guarantor from the proceeds of a Covered Product to recoup its contribution of completion sums to such Covered Product and other amounts recoupable by such Completion Guarantor with regard to such Covered Product pursuant to the terms of the applicable Completion Bond; (j) Indebtedness of a Credit Party to the Master Servicer (or a non-Credit Party Affiliate of the Master Servicer reasonably acceptable to the Administrative Agent) in connection with any co-financing permitted under Section 6.10(b); provided, that (i) such Indebtedness is non-recourse to the assets of the Credit Parties other than with respect to the applicable Covered Product and the 112 related assets being co-financed between the Credit Party and such Person and (ii) if required by the Administrative Agent, an intercreditor agreement has been received by the Administrative Agent with respect to such co-financing; (k) to the extent constituting Indebtedness, unsecured amounts from time to time owed by the Borrower to the Master Servicer pursuant to the Master Services Agreement; and (l) Indebtedness in respect of sale and leaseback transactions secured purchase money financing (including Capital Lease) to the extent permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries 7.01(t), in connection with a Permitted Acquisition); provided, however, that an amount not to exceed $250,000 in the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;outstanding.
Appears in 1 contract
Sources: Credit Agreement
Indebtedness. The Borrower shall not, and shall not permit Neither the Company nor any of its Subsidiaries to, shall directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingIndebtedness, except:
(ai) Indebtedness under the Loan DocumentsObligations;
(bii) Permitted Existing Indebtedness outstanding on the date hereof and listed on Schedule 7.01Permitted Refinancing Indebtedness;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(iiii) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, secured by Customary Permitted Liens;
(iiiv) Indebtedness in respect of sale and leaseback transactions constituting Contingent Obligations permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k7.3(E);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(fv) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrowerand advances; provided, howeverthat, except with respect to Indebtedness under a securitization transaction, the aggregate principal amount of intercompany loans and advances to Affiliates which are not members of the Obligor Group from Affiliates which are members of the Obligor Group (in each case, as determined at the time such intercompany loan is made) shall not exceed 10% of Consolidated Tangible Assets at any time outstanding; provided further, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes intercompany loans and all such notes advances shall be subject to a first priority Lien the subordination provisions of Section 10.14 of this Agreement, Section 6 of the Domestic Subsidiary Guaranty and Section 6 of the Foreign Subsidiary Guaranty, in each case, to the extent applicable in such circumstance.
(vi) Indebtedness in respect of Hedging Obligations permitted under Section 7.3(M);
(vii) Guarantees of Indebtedness permitted hereunder;
(viii) Indebtedness of any Person acquired pursuant to the Collateral Agreement a Permitted Acquisition, so long as such Indebtedness was not incurred in contemplation of such acquisition; 88
(if the payee is a Loan Party ix) Indebtedness that is a party subordinated to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior Obligations pursuant to an agreement reasonably acceptable to the Maturity Date, and Administrative Agent;
(zx) any payment by any such Guarantor under any guaranty Indebtedness consisting of promissory notes issued to redeem Equity Interests of the Obligations shall result in a pro tanto reduction of Company permitted hereby;
(xi) Indebtedness with respect to surety, appeal and performance bonds obtained by the amount of any Indebtedness owed by such Subsidiary to the Borrower Company or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case ordinary course of business, including Indebtedness described arising incurred pursuant to section 8a of the German Act on Partial Retirement (Altersteilzeitgesetz) or section 7e of the German Social Security Code Part IV (Sozialgesetzbuch IV) including under any bank guarantee, surety (Bürgschaft) or any other instrument issued by a bank or financial institution in clauses order to comply with the German Act on Partial Retirement (iAltersteilzeitgesetz) or the German Social Security Code Part IV (Sozialgesetzbuch IV);
(xii) Indebtedness evidenced by the 2013 Senior Notes, the 2016 Senior Notes and the 2018 Senior Notes (including any Indebtedness of the Subsidiary Guarantors arising under a guaranty of the 2013 Senior Notes, the 2016 Senior Notes or the 2018 Senior Notes);
(xiii) secured or unsecured purchase money Indebtedness (including Capitalized Leases) incurred by the Company or any of its Subsidiaries to finance the acquisition of assets used in its business, if (1) at the time of such incurrence no Default or Unmatured Default has occurred and is continuing or would result from such incurrence, (ii)2) such Indebtedness does not exceed the lower of the fair market value or the cost of the applicable assets on the date acquired, (iii3) such Indebtedness does not exceed $80,000,000 in the aggregate outstanding at any time, and (iv4) above, the Investment in the intercompany loan by the lender thereof any Lien securing such Indebtedness is permitted under Section 7.037.3(C);
(xiv) Receivables Facility Attributed Indebtedness in an aggregate amount not to exceed $300,000,000 at any time;
(xv) other Indebtedness in addition to that referred to elsewhere in this Section 7.3(A) incurred and maintained by the Company and its Subsidiaries; provided that the incurrence of such additional Indebtedness does not result in a violation of the Leverage Ratio on a pro forma basis calculated hereunder for the fiscal quarter ending immediately prior to such incurrence; and provided further that no Default or Unmatured Default shall have occurred and be continuing at the date of such incurrence or would immediately result therefrom; and
Appears in 1 contract
Sources: Credit Agreement (Woodward, Inc.)
Indebtedness. The Borrower shall will not, and shall not nor will it permit any of its Subsidiaries other Loan Party to, directly or indirectly create, incurincur or suffer to exist any Indebtedness, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the following:
(a) Indebtedness under the Loan Documents;
Obligations, (b) intercompany Indebtedness outstanding on representing Investments to the date hereof and listed on Schedule 7.01;
extent permitted by Section 6.14, (c) Guaranty Obligations incurred endorsements of negotiable instruments in the ordinary course of business, (d) Indebtedness described in Schedule 2 and any Permitted Refinancing thereof, (e) Subordinated Indebtedness and Permitted Refinancings thereof; provided that (i) prior to the incurrence thereof, the Borrower has delivered to the Agent a Compliance Certificate which indicates that, on a pro forma basis after taking into account the incurrence of such Subordinated Indebtedness and the use of the proceeds thereof, (A) there shall occur no Default or Unmatured Default and (B) the Borrower and itsLoan Parties and their Subsidiaries are in pro forma compliance with the financial covenants in Section 6.19 and (ii) such Indebtedness shall not have any scheduled amortization or mandatory prepayments (other than mandatory prepayments resulting from a change of control) or obligations to repurchase or redeem prior to thirty days after the Maturity Date, (f) Guarantees by the Borrower or any Guarantor and the other Loan Parties in respect of Indebtedness of the Borrower or any Guarantor that is other Loan Party permitted by under this Section 7.01 (other than clause 6.11; provided that, if the Indebtedness 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 Subordinated Indebtedness, (g) below);
any obligation of the Borrower or any other Loan Party under Swap Agreements; provided such Swap Agreements are entered into to manage risk and not for speculative purposes, (h) [reserved], (i) Indebtedness in respect consisting of Capital Capitalized Lease Obligations and purchase money obligations for tangible propertyIndebtedness of the Borrower or any other Loan Party and any Permitted Refinancing thereof in an aggregate principal amount not to exceed the greater of $50,000,000 and two percent (2%) of Consolidated Total Assets at any time outstanding, (iij) Indebtedness in respect of sale any Person that becomes a Loan Party (or of any Person not previously a Loan Party that is merged or consolidated with or into a Loan Party) after the Closing Date as a result of an Investment permitted hereunder and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition)Refinancings thereof; provided, however, provided that the aggregate principal amount of all such Indebtedness permitted by under this subsection clause (dj) at any one time outstanding shall not exceed $200,000,000 20,000,00040,000,000 at any time outstanding, (k) Indebtedness representing deferred compensation to employees of the Borrower and other Loan Parties incurred in the ordinary course of business, (l) Indebtedness constituting working capital adjustments, purchase price adjustments, non-competes, consulting, deferred compensation, earn-out obligations, contingent consideration, contributions, and similar obligations incurred in connection with any Investment or disposition, in each case, permitted under this Agreement, (m) Indebtedness in respect of netting services, overdraft protections and similar arrangements, in each case, in connection with deposit accounts, (n) Indebtedness consisting of the financing of insurance premiums, (o) Indebtedness incurred by the Borrower or any other Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued or created in the ordinary course of business, 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, (p) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations not in connection with money borrowed, in each case provided in the ordinary course of business or consistent with past practice, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice, (q) Additional Unsecured Senior Debt of the Borrower or any other Loan Party and Permitted Refinancings thereof; provided that prior to the incurrence thereof, the Borrower has delivered to the Agent a Compliance Certificate which indicates that, on a pro forma basis after taking into account the incurrence of such Additional Unsecured Senior Debt and the Liens securing use of the proceeds thereof, (A) there shall occur no Default or Unmatured Default and (B) the Borrower and itsLoan Parties and their Subsidiaries are in pro forma compliance with the financial covenants in Section 6.19, (r) the First Cash Senior Notes (and Permitted Refinancings thereof), (s) unsecured Indebtedness in respect of credit card programs incurred in the ordinary course of business, (t) current amounts payable or accrued for other claims (other than for borrowed funds or purchase money obligations) incurred in the ordinary course of business, provided that all such liabilities, accounts and claims shall be promptly paid and discharged when due or in conformity with customary trade terms, except for those being contested in good faith by the Borrower or a Subsidiary for which sufficient reserves have been established, (u) current liabilities for taxes and assessments incurred in the ordinary course of business, and other liabilities for unpaid taxes being contested in good faith by the Borrower or any other Loan Party for which sufficient reserves have been established, (v) Indebtedness consisting of seller financing, seller notes and other similar obligations incurred in connection with any Investment permitted under this Agreement; provided that the aggregate principal amount of all such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or under this clause (e); provided, however, that v) shall not exceed at any such renewal, extension, refinancing or refunding is time $10,000,00020,000,000 and (w) additional Indebtedness of the Borrower and the other Loan Parties in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses to exceed at any time $100,000,000 and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms Permitted Refinancings thereof; provided that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoffincurrence thereof, from MII or any Affiliate of MII (other than the Borrower or has delivered to the Agent a Subsidiary Compliance Certificate which indicates that, on a pro forma basis after taking into account the incurrence of such Indebtedness and the use of the Borrowerproceeds thereof, (A) to there shall occur no Default or Unmatured Default and (B) the Borrower or any Subsidiary of and itsLoan Parties and their Subsidiaries are in pro forma compliance with the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described financial covenants in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;6.19.
Appears in 1 contract
Sources: Credit Agreement (Firstcash, Inc)
Indebtedness. The Borrower shall notIncur, and shall not permit create, assume, become or be liable in any of its Subsidiaries manner with respect to, directly or indirectly createpermit to exist, incurany Indebtedness, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingother than:
(a) Indebtedness under to the Lender pursuant to the Loan Documents;
(b) Indebtedness outstanding liabilities with respect to trade obligations, accounts payable, or other similar payments, operating leases and other normal accruals incurred in the ordinary course of business, or with respect to which the Borrower or the subject Subsidiary is contesting in good faith the amount or validity thereof by appropriate proceedings, and then only to the extent that the Borrower or the subject Subsidiary has set aside on the date hereof and listed on Schedule 7.01its books adequate reserves therefor;
(c) Guaranty Obligations incurred Indebtedness existing on the date of this Agreement owed to those Persons, in those amounts and having those maturities as set forth in Schedule 6.01 of the Disclosure Schedule, including any extensions, renewals or refinancings of such Indebtedness provided that (i) there is no increase in the principal amount thereof at the time of such extension, renewal or refinancing, and (ii) there is no other material change in the terms of such Indebtedness which is materially adverse to the Borrower or to the Lender;
(d) Capitalized Leases reflected in the Financial Statements, and Capitalized Leases hereafter entered into by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount ordinary course of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 the Business Operations and the Liens securing such Indebtedness shall be within the limitations set forth provided in Sections 7.02(d), 7.02(e) or 7.02(k)Section 6.17 below;
(e) renewals, extensions, refinancings and refundings of purchase money Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing Borrower’s or refunding its Subsidiaries’ acquisition of such Indebtedness), and is on terms that capital assets in the aggregate are not materially less favorable to ordinary course of the Borrower or such Subsidiary, including as to weighted average maturity, than Business Operations and within the Indebtedness being renewed, extended, refinanced or refundedlimitations provided in Section 6.17 below;
(f) Subordinated Debt in such amounts and upon such terms and conditions as shall be acceptable to the Lender in its sole and absolute discretion;
(g) intercompany Indebtedness arising from intercompany loans (i) from between the Borrower to and any GuarantorWholly-Owned Subsidiary or between Wholly-Owned Subsidiaries; and
(iih) from any Subsidiary of the Borrower Guarantees to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien extent permitted pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;6.03 below.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Clearpoint Business Resources, Inc)
Indebtedness. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly createCreate, incur, assume assume, suffer to exist, guarantee, or otherwise become or remain remain, directly or indirectly indirectly, liable with respect to any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under evidenced by this Agreement and the other Loan Documents;, together with Indebtedness owed to Underlying Issuers with respect to Underlying Letters of Credit,
(b) Indebtedness outstanding on the date hereof and listed set forth on Schedule 7.01;4.19 and any Refinancing Indebtedness in respect of such Indebtedness,
(c) Guaranty Obligations incurred by the Borrower or Permitted Purchase Money Indebtedness and any Guarantor Refinancing Indebtedness in respect of such Indebtedness,
(d) endorsement of instruments or other payment items for deposit,
(e) Indebtedness composing Permitted Investments,
(f) Indebtedness consisting of unsecured intercompany loans and advances among Loan Parties, subject to the terms and provisions of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause Intercompany Subordination Agreement,
(g) below);Subordinated Indebtedness,
(ih) Indebtedness in respect of Capital Lease Obligations obligations under non-speculative Hedge Agreements entered into in the ordinary course of business in accordance with this Agreement and purchase money obligations solely for tangible propertyhedging purposes,
(i) unsecured Indebtedness of Loan Parties that is incurred on the date of the consummation of a Permitted Non-Cash Acquisition solely for the purpose of consummating such Permitted Non-Cash Acquisition so long as (i) no Event of Default has occurred and is continuing or would result therefrom, (ii) such unsecured Indebtedness is not incurred for working capital purposes, (iii) such unsecured Indebtedness does not mature prior to the date that is 12 months after the Maturity Date, and (iv) such Indebtedness is subordinated in right of payment to the Obligations on terms and conditions reasonably satisfactory to Agent; and
(j) unsecured Indebtedness of Loan Parties in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness any contingent earn-out obligations incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted AcquisitionAcquisition that are subordinated in right of payment to the Obligations on terms and conditions reasonably satisfactory to Agent;
(k) certain Indebtedness of the Parent set forth on Schedule 6.1(k); provided, however, that and
(l) unsecured Indebtedness of any Loan Party other than the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(eclauses (a) or 7.02(k);
through (e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (dk) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and to exceed $25,000,000 at any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;time outstanding.
Appears in 1 contract
Sources: Credit Agreement (Take Two Interactive Software Inc)
Indebtedness. The Borrower Borrowers shall not, and shall not cause or permit any of its Subsidiaries the Controlled Owners to, directly or indirectly create, incur, create, assume or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness except for the following:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible propertysecured by Liens permitted under Section 7.01, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by existing on the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provideddate hereof, however, that but not the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing renewal or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i)thereof, (iii) and Indebtedness incurred hereunder, (iv) of this clause (f)) shall be Subordinated Debt and, Indebtedness to trade creditors incurred in the case ordinary course of Indebtedness described in clause business, and (v) onlyGuarantees of the Obligations, shall not permit any cash payments without the prior written consent of any kind prior Lender in each instance. Lender will consider a proposal by a Borrower to refinance a Loan (and to release its Liens on the Collateral Property) to the Maturity Dateextent that Borrower is in full compliance with the Loan Documents, such refinancing is for an amount exceeding the balance of such Loan and such refinancing will not, in Lender's judgement, adversely affect the aggregate loan to value or debt service coverage ratios for the Loans, and provided that the Capital Proceeds in respect of such refinancing shall be applied first to repay such Loan in full, and any balance shall be applied to prepay the other Loans. Lender shall reasonably consider any additional Indebtedness proposed to be incurred by Borrower or its subsidiaries; provided, that (a) the Capital Proceeds in respect thereof are utilized in a manner approved by Lender (including, if required by Lender, the application of a percentage of such proceeds, which percentage shall be determined by Lender at the time it approves the additional Indebtedness, to prepay the Loans in such manner as Lender may elect), (b) such additional Indebtedness is not secured by Liens on the Collateral Properties, (c) an adequate period of review is provided for Lender to review the loan documents for the additional Indebtedness, and (zd) any payment intercreditor agreements satisfactory in all respects to Lender are entered into by any Lender and the holder of such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;additional Indebtedness.
Appears in 1 contract
Indebtedness. The Borrower shall not, and shall not permit No Restricted Subsidiary will in any of its Subsidiaries to, directly manner owe or indirectly create, incur, assume or otherwise become or remain directly or indirectly be liable with respect to any for Indebtedness except for the followingexcept:
(a) Indebtedness under the Loan DocumentsObligations;
(b) Indebtedness outstanding on capital lease obligations (excluding oil, gas or mineral leases) entered into in the date hereof ordinary course of such Restricted Subsidiary’s business in arm’s length transactions at competitive market rates under competitive terms and listed on Schedule 7.01conditions in all respects, provided that the obligations required to be paid in any fiscal year under any such capital leases do not in the aggregate exceed $2,000,000 for all Restricted Subsidiaries;
(c) Guaranty Obligations incurred unsecured Indebtedness owed by the Restricted Subsidiaries (i) to the Borrower or any Guarantor in respect (ii) to Questar Corporation or (iii) to another Restricted Subsidiary, provided that from and after the date of the initial Borrowing under this Agreement (x) the aggregate principal amount of Indebtedness of the Restricted Subsidiaries to Questar Corporation shall not exceed $250,000,000 and (y) all Indebtedness of the Restricted Subsidiaries to Questar Corporation shall be subject to a Subordination Agreement executed by Questar Corporation, the applicable Restricted Subsidiary and the Borrower and delivered to Administrative Agent substantially in the form of Exhibit F (with such changes as the Administrative Agent shall approve);
(d) [intentionally omitted];
(e) Indebtedness of the Restricted Subsidiaries for plugging and abandonment bonds issued by third parties or for letters of credit issued in place thereof which are required by regulatory authorities in the area of operations, and Indebtedness of the Restricted Subsidiaries for other bonds or letters of credit which are required by such regulatory authorities with respect to other normal oil and gas operations;
(f) non-recourse Indebtedness as to which no Loan Party (i) provides any Guarantor guaranty or credit support of any kind (including any undertaking, guarantee, indemnity, agreement or instrument that would constitute Indebtedness) or (ii) is directly or indirectly liable (as a guarantor or otherwise); provided, that after giving effect to such Indebtedness outstanding from time to time, the Borrower is not in violation of Section 7.11;
(g) Indebtedness that is permitted by this Section 7.01 subordinated to the Obligations on terms acceptable to Required Lenders; H-712479.11 40
(h) Acquired Debt which meets the following requirements: (i) the documentation evidencing such Indebtedness shall contain no terms, conditions or defaults (other than clause pricing) which are more favorable to the third party creditor than those contained in this Agreement are to Lenders and (gii) below)at the time such Indebtedness is incurred, no Default shall have occurred and be continuing hereunder;
(i) Indebtedness under Swap Contracts permitted under Section 7.10; and
(j) unsecured Indebtedness of the Restricted Subsidiaries not described in respect of Capital Lease Obligations subsections (a) through (i) above which meets the following requirements: (i) the documentation evidencing such Indebtedness shall contain no terms, conditions or defaults (other than pricing) which are more favorable to the third party creditor than those contained in this Agreement are to Lenders and purchase money obligations for tangible property, (ii) at the time such Indebtedness in respect of sale is incurred, no Default shall have occurred and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition)be continuing hereunder; provided, however, provided that the aggregate principal amount Indebtedness of all such Indebtedness the Restricted Subsidiaries permitted by under this subsection (dj) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that 30,000,000 in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;aggregate.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Questar Market Resources Inc)
Indebtedness. The Borrower (a) No Credit Party shall not, and shall not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness Indebtedness, except for the following:(without duplication)
(ai) Indebtedness under the Loan DocumentsObligations;
(bii) Indebtedness outstanding on trade payables, wages and other accrued expenses incurred in the date hereof and listed on Schedule 7.01ordinary course of business;
(ciii) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below)Related Transactions Costs;
(iiv) to the extent permitted by ANNEX G or SECTION 6.7(iii) and in any event in an aggregate amount not to exceed $25,000,000 at any time, Capital Leases and purchase money Indebtedness incurred to finance the acquisition of fixed assets, and Indebtedness incurred to refinance such Capital Leases and purchase money Indebtedness;
(v) Indebtedness in respect of Capital Lease Obligations taxes, assessments, governmental charges and purchase money obligations claims for tangible propertylabor, materials or supplies, to the extent that payment thereof is not required pursuant to SECTION 1.15; -42-
(iivi) Indebtedness in respect of sale and leaseback transactions constituting Accommodation Obligations permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)SECTION 6.6;
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(fvii) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower Borrower's wholly owned Subsidiaries to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the SpinoffBorrower, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, howeverPROVIDED, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject subordinated in right of payment to the Obligations;
(viii) Indebtedness with respect to reasonable warranties and indemnities made under any agreements for asset sales permitted under SECTION 6.8;
(ix) Permitted Existing Indebtedness;
(x) Indebtedness of M&M in an aggregate amount not to exceed $11,000,000 assumed in connection with the M&M Acquisition; and
(xi) Indebtedness arising from intercompany loans from the Borrower to Recoil of up to $6,000,000 as evidenced by a first priority Lien promissory note dated May 29, 1998 which has been delivered to the Lender pursuant to the Collateral Agreement Security Agreement, together with an endorsement in blank relating thereto.
(b) No Credit Party shall, directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable in respect of any Indebtedness, other than (i) the Obligations, (ii) Indebtedness secured by a Permitted Encumbrance if the payee is a Loan Party that is a party to the Collateral Agreementasset securing such Indebtedness has been sold or otherwise disposed of in accordance with SECTIONS 6.8(b) or (c), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), and (iii) and other Indebtedness (ivexcluding Subordinated Debt) not in excess of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;$3,000,000.
Appears in 1 contract
Indebtedness. The Borrower shall will not, and shall will not permit any of its Pledged Subsidiaries to, directly or indirectly create, incur, assume or suffer to exist or otherwise become or remain directly or indirectly be liable with in respect to of any Indebtedness except for Indebtedness, other than, without duplication, the following:
(a) Indebtedness under in respect of the Loan DocumentsLoans and other Obligations;
(b) unsecured Indebtedness outstanding incurred in the ordinary course of business (including open accounts extended by suppliers on normal trade terms in connection with purchases of goods and services, but excluding Indebtedness incurred through the date hereof borrowing of money and listed on Schedule 7.01Contingent Liabilities);
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is and its Pledged Subsidiaries in respect of Capitalized Lease Liabilities to the extent permitted by this in Section 7.01 (other than clause (g) below)7.2.7;
(id) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, under the Credit Agreement (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k364 Days);
(e) renewalsIndebtedness of the Borrower comprising reimbursement obligations in respect of letters of credit issued to support imported merchandise purchased from time to time by the Borrower, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, provided that any such renewal, extension, refinancing or refunding is in an the aggregate principal amount not greater than the principal amount of (plus reasonable feesall such letters of credit and, expenses and any premium incurred in connection with the renewalturn, extensionof all such reimbursement obligations, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are shall not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedexceed $500,000;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower incurred in connection with the Guaranty, dated as of April 16, 2001 in favor of J-Star Industries, Inc. pursuant to which the Borrower or any Guarantorhas guaranteed the obligations of NHI, LLC under the Environmental Remediation and Indemnification Agreement, dated as of April 16, 2001, by and between NHI, LLC and J-Star Industries, Inc. and the Environmental Escrow Agreement, dated as of April 16, 2001, by and between NHI, LLC and J-Star Industries, Inc; and
(iiig) from any Subsidiary Non-recourse Indebtedness of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced secured only by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;Non-Pledged Assets.
Appears in 1 contract
Sources: Credit Agreement (Aristotle Corp)
Indebtedness. The Subject to the last sentence of this Section 6.01, the Borrower shall will not, and shall not nor will it permit any of its Subsidiaries the Subsidiary Guarantors to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness created hereunder or under the any other Loan DocumentsDocument;
(b) Secured Longer-Term Indebtedness and Unsecured Longer-Term Indebtedness so long as (i) no Default exists at the time of the incurrence thereof, (ii) the aggregate amount of such Secured Longer-Term Indebtedness and Unsecured Longer-Term Indebtedness, taken together with other then-outstanding on Indebtedness, does not exceed the date hereof amount required to comply with the provisions of Section 6.07(b) and listed on Schedule 7.01(e), and (iii) prior to and immediately after giving effect to the incurrence of any Secured Longer-Term Indebtedness or Unsecured Longer-Term Indebtedness, the Covered Debt Amount does not or would not exceed the Borrowing Base then in effect;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below)Other Permitted Indebtedness;
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Guarantees of Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)otherwise permitted hereunder;
(e) renewalsIndebtedness of any Obligor owing to any other Obligor or, extensions, refinancings if such Indebtedness is subject to subordination terms and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, conditions that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable satisfactory to the Borrower or such SubsidiaryAdministrative Agent, including as to weighted average maturity, than any other Subsidiary of the Indebtedness being renewed, extended, refinanced or refundedBorrower;
(f) Indebtedness [Reserved];
(g) repurchase obligations arising from intercompany loans in the ordinary course of business with respect to U.S. Government Securities;
(h) obligations payable to clearing agencies, brokers or dealers in connection with the purchase or sale of securities in the ordinary course of business; 100 Revolving Credit Agreement
(i) from Secured Shorter-Term Indebtedness so long as (i) no Default exists at the Borrower to any Guarantor; time of the incurrence thereof, (ii) from any Subsidiary the aggregate amount (determined at the time of the Borrower to incurrence of such Indebtedness) of such Indebtedness does not exceed the Borrower or any Guarantor; greater of (A) $20,000,000 and (B) 5% of Shareholders’ Equity, (iii) from any Subsidiary the aggregate amount of such Indebtedness, taken together with other then-outstanding Indebtedness, does not exceed the Borrower that is not a Loan Party amount required to any other Subsidiary comply with the provisions of the Borrower that is not a Loan Party; Section 6.07(b) and (e), and (iv) from prior to and immediately after giving effect to the Borrower incurrence of any such Indebtedness, the Covered Debt Amount does not or would not exceed the Borrowing Base then in effect;
(j) obligations (including Guarantees) in respect of Standard Securitization Undertakings;
(k) Permitted SBIC Guarantees;
(l) Indebtedness under any Guarantor Capital Call Facility not to any Subsidiary exceed $1,000,000,000 in the aggregate;
(m) Unsecured Shorter-Term Indebtedness (other than Special Unsecured Indebtedness that would otherwise constitute Unsecured Shorter-Term Indebtedness) so long as (i) no Default exists at the time of the Borrower that is incurrence thereof, (ii) the aggregate amount (determined at the time of the incurrence of such Indebtedness) of such Indebtedness does not a Guarantor; or exceed $500,000,000, (iii) the aggregate amount (determined at the time of the incurrence of such Indebtedness) of such Indebtedness, taken together with then-outstanding Special Unsecured Indebtedness incurred pursuant to Section 6.01(n), does not exceed $1,000,000,000, (iv) the aggregate amount of such Indebtedness, taken together with other then-outstanding Indebtedness, does not exceed the amount required to comply with the provisions of Section 6.07(b) and (e), and (v) prior to and immediately after giving effect to the Spinoffincurrence of any such Indebtedness, from MII the Covered Debt Amount does not or any Affiliate of MII would not exceed the Borrowing Base then in effect;
(other than n) Special Unsecured Indebtedness so long as (i) no Default exists at the Borrower or a Subsidiary time of the Borrowerincurrence thereof, (ii) to the Borrower or any Subsidiary aggregate amount (determined at the time of the Borrower; provided, however, that (xincurrence of such Indebtedness) all of such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i)does not exceed $1,000,000,000, (iii) and the aggregate amount (determined at the time of the incurrence of such Indebtedness) of such Indebtedness, taken together with then-outstanding Unsecured Shorter-Term Indebtedness incurred pursuant to Section 6.01(m), does not exceed $1,000,000,000, (iv) the aggregate amount of this clause such Indebtedness, taken together with other then-outstanding Indebtedness, does not exceed the amount required to comply with the provisions of Section 6.07(b) and (fe)) shall be Subordinated Debt and, in the case of Indebtedness described in clause and (v) only, shall not permit any cash payments prior to and immediately after giving effect to the incurrence of any kind prior such Indebtedness, the Covered Debt Amount does not or would not exceed the Borrowing Base then in effect;
(o) Indebtedness incurred pursuant to the Maturity Date, 2025 Notes; and
(p) other Indebtedness not to exceed the greater of (i) $25,000,000 and (zii) 5% of Shareholders’ Equity at any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;time outstanding.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Owl Rock Technology Finance Corp.)
Indebtedness. The Borrower shall will not, and shall will not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or suffer to exist or otherwise become or remain directly or indirectly be liable with in respect to of any Indebtedness except for Indebtedness, other than, without duplication, the following:
(ai) Indebtedness under created in connection with any Loan Document, (ii) any Indebtedness existing as of the Loan DocumentsClosing Date, (iii) any Indebtedness evidenced by promissory notes pledged to the Collateral Trustee pursuant to the Security Documents and (iv) the 2003 Senior Notes, the Second Priority B Loans and any Parity Lien Debt;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations which is incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower Borrower's Subsidiaries to a vendor of any assets to finance the acquisition of such assets so long as the only recourse of such vendor is to some or any Guarantor that is permitted all of the assets so financed;
(c) unsecured Indebtedness incurred in the ordinary course of business (including open accounts extended by this Section 7.01 (other than clause (g) belowsuppliers on normal trade terms in connection with purchases of goods and services, but excluding Indebtedness incurred through the borrowing of money or Contingent Liabilities);
(i) Indebtedness of the Borrower which is owed to and held by a Subsidiary (it being understood and agreed that the obligations of the Borrower under its subordinated debt securities issued to a Trust in respect connection with the Guaranteed Preferred Securities are not considered Indebtedness for purposes of Capital Lease Obligations and purchase money obligations for tangible propertythis Agreement), (ii) Indebtedness in respect of sale a Subsidiary which is owed to and leaseback transactions permitted held by Section 7.13 the Borrower and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed of a Subsidiary which is owed to and held by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e)Subsidiary; provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount subsequent transfer of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further thata Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the Borrower or by a Subsidiary, as the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03may be;
Appears in 1 contract
Sources: Credit Agreement (Calpine Corp)
Indebtedness. The Borrower shall notCreate, and shall not permit any of its Subsidiaries to, directly or indirectly createissue, incur, assume assume, become liable in respect of or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under the of any Loan DocumentsParty pursuant to any Loan Document;
(bi) Indebtedness of the Borrower owing to any Subsidiary and of any Wholly Owned Subsidiary Guarantor owing to the Borrower or any other Subsidiary, (ii) Indebtedness of any Subsidiary that is not a Loan Party owing to any Subsidiary that is not a Loan Party and (iii) Indebtedness of Subsidiaries that are not Loan Parties owing to Loan Parties to the extent permitted by Sections 7.8(i), (j) or (k);
(c) Guarantee Obligations incurred in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of any Wholly Owned Subsidiary Guarantor;
(d) Indebtedness outstanding or committed to on the date hereof and listed on Schedule 7.017.2(d) and any refinancings, refundings, renewals or extensions thereof; provided that (i) any such refinancing of such Indebtedness shall occur within the one-year period prior to, or three-month period following, the maturity or initial call option date of the applicable Indebtedness and (ii) any new Indebtedness refinancing such Indebtedness (other than Excluded Refinanced Debt) (A) ranks pari passu with or is subordinated to the Indebtedness being refinanced, (B) does not exceed the principal amount of the Indebtedness being refinanced, (C) has a longer maturity and average life than the Indebtedness being refinanced and the Term Loans and (D) contains other customary limitations as reasonably required by the Administrative Agent; provided further that the amount of any such Indebtedness outstanding or committed to with respect to (1) Permitted Receivables Financings may be up to, but shall not exceed, the amounts set forth in the defined term "Permitted Receivables Financings" and (2) unsecured lines of credit for Foreign Subsidiaries shall not exceed $275,000,000;
(ce) Guaranty Indebtedness (including, without limitation, Capital Lease Obligations) secured by Liens permitted by Section 7.3(k) in an aggregate principal amount not to exceed $100,000,000 at any one time outstanding;
(f) Indebtedness secured by all or a portion of the Collateral on a second priority basis in an aggregate principal amount not to exceed $500,000,000 at any one time outstanding; provided that (i) such Indebtedness has a longer maturity and average life than the Term Loans and, if such Indebtedness is incurred to refinance existing Indebtedness, such existing Indebtedness, (ii) the holder of such Indebtedness enters into an intercreditor agreement with the Administrative Agent reasonably satisfactory to the Required Lenders (which agreement shall in any event provide that the Obligations incurred by shall benefit from the Borrower or any Guarantor Liens on all assets subject to the CNTA Exception in respect priority to the holders of such second priority Indebtedness, notwithstanding the relative order of incurrence of such Indebtedness) and (iii) such Indebtedness is subject to other customary limitations reasonably satisfactory to the Required Lenders;
(g) unsecured Indebtedness of the Borrower or any Guarantor of its Subsidiaries in an aggregate principal amount (for the Borrower and all Subsidiaries) not to exceed $500,000,000 at any one time outstanding;
(h) Indebtedness of a newly-acquired Subsidiary that is permitted by outstanding on the date such Subsidiary is acquired; provided that (A) any such Indebtedness was not created in contemplation of such purchase or other acquisition in contravention of this Section 7.01 7.2, (other than clause B) the amount of such Indebtedness is permitted under Section 7.8(h) and (gC) belowif such Indebtedness is secured by a Lien permitted under Section 7.3(p), such Indebtedness shall not qualify for the CNTA Exception unless the total amount of Indebtedness that may be secured by assets subject to the CNTA Exception is not reduced by the acquisition of such Indebtedness (assuming that such Subsidiary was acquired as of the last day of the most recently ended fiscal year);
(i) Indebtedness or other financings in respect of Capital Lease Obligations synthetic leases for, or other Indebtedness or other financings secured by, the Borrower's world headquarters located in Troy, Michigan and purchase money obligations for tangible propertymanufacturing facilities located in Gadsden, (ii) Alabama, Tuscaloosa, Alabama and Vienna Township, Ohio, not to exceed $140,000,000 in the aggregate, and any refinancings, refundings, renewals or extensions thereof; provided that any new Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) or other secured financings refinancing such Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that shall not cause the aggregate principal amount of all such Indebtedness permitted by or other financings outstanding under this subsection paragraph to exceed $140,000,000;
(dj) Non-Recourse Debt of Foreign Subsidiaries and JV Subsidiaries under overdraft facilities, bank cash management facilities and letters of credit issued in the ordinary course of business not to exceed $150,000,000 at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);outstanding; and
(ek) renewalsadditional Indebtedness of the Borrower or any of its Subsidiaries, extensionswhether secured or unsecured, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to for the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject Subsidiaries) not to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit exceed $100,000,000 at any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;one time outstanding.
Appears in 1 contract
Sources: Credit Agreement (Delphi Corp)
Indebtedness. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness Indebtedness, except for the following:
following (acollectively, "PERMITTED INDEBTEDNESS"): (i) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) any Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and set forth on Schedule 7.2, (iii) other secured Indebtedness (including secured Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens as along as the effect of incurring the Capitalized Lease Obligations and/or Indebtedness does not violate (or assumed by with the Borrower and its Subsidiaries passage of time) the financial covenants set forth in Annex I, (iv) Indebtedness in connection with advances made by a Permitted Acquisition)stockholder in order to cure any default of the financial covenants set forth on Annex I; provided, however, that such Indebtedness owed to a stockholder shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender's rights and in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 150 calendar days from the billing date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower's independent accountants shall have been reserved; and (vi) borrowings incurred in the ordinary course of business and not exceeding $250,000 individually or in the aggregate principal amount of all such Indebtedness permitted by this subsection (d) outstanding at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e)time; provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes on an unsecured basis, subordinated in right of repayment and remedies to all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations and to all of Lender's rights and in form and substance satisfactory to Lender. Borrower shall result in a pro tanto reduction of the amount of not make prepayments on any existing or future Indebtedness owed by such Subsidiary to any Person other than to Lender or to the extent specifically permitted by this Agreement or any subsequent agreement between Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (iand Lender), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Opticare Health Systems Inc)
Indebtedness. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness (exclusive of trade debt) except for the followingin respect of:
(a) Indebtedness under the Loan Documentsto Lenders and Agent, including Indebtedness of any Borrower pursuant to a Lender-Provided Interest Rate Hedge;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01incurred for Capital Expenditures permitted under Section 7.6 hereof;
(c) Guaranty Obligations incurred Purchase-money Indebtedness (including Capitalized Lease Obligations) arising after the Closing Date to the extent secured by purchase money security interests in Equipment (including Capitalized Lease Obligations) and purchase money mortgages on Real Property not to exceed $150,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of such Borrower other than the Equipment or any Guarantor in respect of Real Property so acquired, and the Indebtedness secured thereby does not exceed the cost of the Borrower Equipment or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below)Real Property so acquired, as the case may be;
(d) Indebtedness of any Borrower to any other Borrower pursuant to loans provided by such other Borrower permitted under Section 7.5(c) hereof;
(e) unsecured Indebtedness of any Borrower arising after the Closing Date to any third person; provided that Borrowers satisfy each of the following conditions as determined by Agent in its discretion: (i) such Indebtedness shall be on terms and conditions acceptable to Agent and shall be subject and subordinate in respect right of Capital Lease payment to the right of Agent and Lenders to receive payment in full of all of the Obligations pursuant to the terms of an intercreditor agreement between such third party and purchase money obligations for tangible propertyAgent, in form and substance satisfactory to Agent; (ii) Indebtedness in respect Agent shall have received true, correct and complete copies of sale all agreements, documents and leaseback transactions permitted by Section 7.13 and instruments evidencing or otherwise related to such unsecured Indebtedness; (iii) except as Agent may otherwise agree in writing, all of the proceeds of such loans or other secured accommodations giving rise to such Indebtedness shall be paid to Agent for the application to the Obligations in such order and manner as Agent may determine; (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that iv) the aggregate principal amount of all such unsecured Indebtedness permitted by this subsection (d) at any one time outstanding incurred during the Term shall not exceed $200,000,000 150,000; (v) as of the date of incurring such unsecured Indebtedness and after giving effect thereto, there shall not exist any Event of Default; (vi) Borrowers shall not, directly or indirectly, (A) amend, modify, alter or change the Liens securing terms of such unsecured Indebtedness shall be within or any agreement, document, or instrument related thereto (except that Borrowers may, after prior written notice to Agent, amend, modify, alter or change the limitations set forth terms thereof so as to extend the maturity thereof, or defer the timing of any payments in Sections 7.02(drespect thereto, or forgive or cancel any portion of such unsecured Indebtedness (other than pursuant to the payments thereof), 7.02(e) or 7.02(k);
(e) renewalsto reduce the interest rate or any fees in connection therewith, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (dB) above redeem, retire, defease, purchase or this clause otherwise acquire such unsecured Indebtedness (eexcept pursuant to regularly scheduled payments permitted herein), or set aside or otherwise deposit or invest any sums for such purpose; provided, however, that any such renewal, extension, refinancing and (vii) Borrowers shall furnish to Agent all notices or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred demands in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the unsecured Indebtedness either received by any Borrower or such Subsidiaryon its behalf promptly after receipt thereof, including or sent by any Borrower or on its behalf concurrently with the sending thereof, as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;case may be; or
(f) the Indebtedness arising from intercompany loans set forth on Schedule 7.8; provided that (i) from Borrowers shall not, directly or indirectly, (A) amend, modify, alter or change the Borrower to any Guarantor; (ii) from any Subsidiary terms of the Borrower to the Borrower such Indebtedness or any Guarantor; agreement, document, or instrument related thereto (iii) from except that Borrowers may, after prior written notice to Agent, amend, modify, alter or change the terms thereof so as to extend the maturity thereof, or defer the timing of any Subsidiary payments in respect thereto, or forgive or cancel any portion of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreementpayments thereof), or to reduce the interest rate or any fees in connection therewith, or (yB) all redeem, retire, defease, purchase or otherwise acquire such Indebtedness (other than the Indebtedness described in clauses (iexcept pursuant to regularly scheduled payments permitted herein), (iii) or set aside or otherwise deposit or invest any sums for such purpose; and (ivii) of this clause (f)) Borrowers shall be Subordinated Debt andfurnish to Agent all notices or demands in connection with such Indebtedness either received by any Borrower or on its behalf promptly after receipt thereof, in or sent by any Borrower or on its behalf concurrently with the sending thereof, as the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;may be.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Image Entertainment Inc)
Indebtedness. The Borrower shall not, and nor shall not it permit any of its Subsidiaries Subsidiary or the LS&Co. Trust to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the followingIndebtedness, except:
(a) in the case of the Borrower,
(i) Indebtedness owed to any Subsidiary, which Indebtedness, if owed to any Guarantor, (A) shall constitute Pledged Indebtedness and (B) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, shall be subordinated in right of payment to the payment in full of the Obligations and such promissory notes shall 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 Applicable Agent pursuant to the terms of the Second-Lien Pledge and Security Agreement;
(ii) Indebtedness of the Borrower issued in a Capital Markets Transaction provided such Indebtedness is unsecured and such Indebtedness does not have a stated maturity date or required principal payments earlier than January 31, 2010; and
(iii) Guarantees of the Borrower under the LS&Co. Trust Agreement, provided that the investment activities of the LS&Co. Trust are in compliance with the Investment Policies;
(iv) Guarantees of the Borrower in respect of the obligations of Subsidiaries arising under or in connection with the Borrower's Cash Management Services;
(b) in the case of Subsidiaries specified in this Section 7.03(b),
(i) Indebtedness outstanding on owed to the date hereof Borrower or to any Guarantor by another Guarantor, which Indebtedness (A) shall constitute Pledged Indebtedness and listed on Schedule 7.01(B) shall, except in the case of redeemable preferred stock, be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, shall be subordinated in right of payment in full of the Obligations, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Second-Lien Pledge and Security Agreement;
(ii) Indebtedness owed to any Pledged Domestic Subsidiary by any Guarantor or another Pledged Domestic Subsidiary;
(iii) Indebtedness owed to any Pledged Foreign Subsidiary by any Guarantor, any Pledged Domestic Subsidiary or another Pledged Foreign Subsidiary;
(iv) Indebtedness owed to any Unpledged Foreign Subsidiary (other than LSIFCS) by any Subsidiary and Indebtedness owed to LSIFCS by any Guarantor, Pledged Domestic Subsidiary or Pledged Foreign Subsidiary; and
(v) Indebtedness owed to the Borrower or to any Guarantor by a Pledged Domestic Subsidiary, a Pledged Foreign Subsidiary or a foreign branch of any Pledged Domestic Subsidiary not to exceed in the aggregate $50,000,000 at any time outstanding, which Indebtedness (A) shall constitute Pledged Indebtedness and (B) shall, except in the case of redeemable preferred stock, be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, shall be subordinated in right of payment in full of the Obligations, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Second-Lien Pledge and Security Agreement;
(c) Guaranty Obligations incurred by in the Borrower or any Guarantor in respect of Indebtedness case of the Borrower or any Guarantor that is permitted by and Subsidiaries specified in this Section 7.01 (other than clause (g) below7.03(c);,
(i) Indebtedness of the Borrower and its Subsidiaries outstanding on the Closing Date and listed on Schedule 7.03 hereto and any refinancing of the industrial revenue bond obligations, capital leases and Equipment Financing Transactions listed on Schedule 7.03 hereto provided there is no increase in respect the aggregate principal amount of Capital Lease Obligations and purchase money obligations for tangible property, such obligations;
(ii) Indebtedness of the Borrower and its Subsidiaries under the Loan Documents and under the ABL Credit Agreement;
(iii) Indebtedness of the Borrower and its Subsidiaries (other than LSFCC) secured by Liens permitted by Section 7.01(j) not to exceed in the aggregate $100,000,000 at any time outstanding;
(iv) Indebtedness of the Borrower, LSIFCS and any Material Domestic Subsidiary in respect of sale Ordinary Course Swap Contracts and leaseback transactions consistent with prudent business practice, provided that the aggregate Swap Termination Value of all such Ordinary Course Swap Contracts with third parties under which the Borrower, LSIFCS or any Material Domestic Subsidiary would be required to make a payment on termination thereof do not exceed in the aggregate $75,000,000;
(v) so long as no Default shall have occurred and be continuing, Indebtedness of the Borrower and its Subsidiaries (other than LSFCC) to LSIFCS in the ordinary course of business and Indebtedness of LSIFCS to the Borrower and any of its other Subsidiaries (other than LSFCC) in the ordinary course of business;
(vi) Indebtedness of Foreign Subsidiaries in the form of Permitted Foreign Receivables Transactions or Permitted Foreign Inventory Transactions;
(vii) Ordinary Course Swap Contracts between the Borrower or LSIFCS and LSIFCS or other Subsidiaries (other than LSFCC) in the ordinary course of business;
(viii) customary indemnification obligations and other Guarantees of any Subsidiary incurred in connection with any Permitted Foreign Receivables Transaction or Permitted Foreign Inventory Transactions permitted under Section 7.03(c)(vi);
(ix) Indebtedness of the Borrower to any of its Subsidiaries or of any of its Subsidiaries to any of its Subsidiaries in connection with the purchases of inventory or raw materials in the ordinary course of business in an amount not to exceed the purchase price thereof and any related servicing fees;
(A) Indebtedness of the Borrower and its Subsidiaries arising from the honoring of a check, draft, wire transfer or similar instrument against insufficient funds; provided that such Indebtedness is unsecured other than by a Lien permitted pursuant to Section 7.13 7.01(r) or is supported by a letter of credit, and (iiiB) other secured Indebtedness (including secured Indebtedness incurred or assumed by of the Borrower and its Subsidiaries in respect of the Borrower's Cash Management Services, PROVIDED that the aggregate Indebtedness at any one time in connection with a Permitted Acquisitionall such Cash Management Services does not exceed $160,000,000;
(xi) Indebtedness of the Borrower to any of its Subsidiaries (other than LSFCC) and Indebtedness of any of its Subsidiaries (other than LSFCC) to the Borrower or any of its other Subsidiaries (other than LSFCC); providedPROVIDED, howeverHOWEVER, that the sum, without duplication, of (A) the aggregate principal amount of all such Indebtedness incurred after the date hereof PLUS (B) the aggregate Investments permitted by this subsection Section 7.02(l) PLUS (dC) at any one time outstanding the aggregate dispositions permitted by Section 7.05(i) shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)Available Amount;
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(fxii) Indebtedness arising from intercompany loans (i) from of the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII its Subsidiaries (other than the Borrower or a Subsidiary LSFCC) and Indebtedness of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness its Subsidiaries (other than the Indebtedness described in clause (iiiLSFCC) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its other Subsidiaries for whose benefit such payment is made; provided, further that, (other than LSFCC) incurred in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is connection with a Disposition permitted under Section 7.037.05(d) and Section 7.05(k);
(xiii) Indebtedness of any Subsidiary (other than LSFCC) to any other Subsidiary (other than LSFCC) incurred in connection with a Permitted Foreign Receivables Transaction or a Permitted Foreign Inventory Transaction permitted under Section 7.03(c)(vi) in an amount not to exceed the proceeds thereof;
(xiv) Indebtedness of the Borrower and its Subsidiaries in the form of capital leases, Real Estate Financing Transactions or Equipment Financing Transactions to the extent permitted by Section 7.01(j) or Section 7.01(u); and
(xv) in addition to the foregoing Sections 7.03(c)(i) - (xiv) and without duplication, Indebtedness (other than Indebtedness under Ordinary Course Swap Contracts or in connection with the Borrower's Cash Management Services) of the Borrower and its Subsidiaries (other than LSFCC) not exceeding $150,000,000 in the aggregate at any time.
Appears in 1 contract
Sources: Credit Agreement (Levi Strauss & Co)
Indebtedness. The Neither the Borrower shall not, and shall not permit nor any of its Subsidiaries to, shall directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingIndebtedness, except:
(ai) Indebtedness under the Loan DocumentsObligations;
(bii) Permitted Existing Indebtedness outstanding on the date hereof and listed on Schedule 7.01Permitted Refinancing Indebtedness;
(ciii) Guaranty Indebtedness in respect of obligations secured by Customary Permitted Liens;
(iv) Indebtedness constituting Contingent Obligations incurred in respect of Indebtedness otherwise permitted hereunder;
(v) Indebtedness arising from intercompany loans from the Borrower to any Guarantor or from any Subsidiary to the Borrower or any Guarantor; provided that in each case such Indebtedness is subordinated upon terms satisfactory to the Required Lenders to the obligations of the Borrower and its Subsidiaries with respect to the Obligations;
(vi) Indebtedness with respect to surety, appeal and performance bonds obtained by the Borrower or any Guarantor of its Subsidiaries in respect the ordinary course of business;
(vii) Indebtedness not in excess of $25,000,000.00, in the Borrower or aggregate outstanding at any Guarantor that is permitted by this time, in connection with the Liens set forth in Section 7.01 (other than clause (g) below5.3(C)(v);
(iviii) Indebtedness in respect contingent obligations of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness the Guarantors incurred or assumed by the Borrower and its Subsidiaries in connection with sales in the ordinary course of business of vehicle chattel paper;
(ix) Floor Plan Indebtedness incurred by a Permitted Acquisition); Loan Party;
(x) Indebtedness incurred from time to time in connection with Capital Expenditures, provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection incurred during any twelve month period (d) at any one time outstanding shall with the first such twelve month period beginning on the Effective Date, and each subsequent twelve month period beginning on each succeeding anniversary day of the Effective Date), may not exceed $200,000,000 20,000,000.00, and provided, further, that if during any given twelve month period such Indebtedness is less than $20,000,000.00 (the difference between $20,000,000.00 and the Liens securing actual amount of such Indebtedness shall be within incurred during a given twelve month period not in excess of $5,000,000.00 being referred to herein as the limitations set forth in Sections 7.02(d"Carry-Over Amount"), 7.02(esuch Carry-Over Amount may be carried either forward or back into any twelve month period during the term of this Agreement and added to the amount of Indebtedness that may be or may have been (as the case may be) or 7.02(k)incurred during such twelve month period in connection with Capital Expenditures;
(exi) renewalsother Indebtedness in an aggregate principal amount outstanding at any time not in excess of $7,500,000.00;
(xii) Indebtedness incurred hereunder in connection with a Permitted Acquisition;
(xiii) Hedging Obligations permitted under Section 5.3 (P).;
(xiv) Indebtedness incurred from time to time and secured only by the Liens described in Section 5.3 (C) (vi), extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that with respect to any such renewalgiven Indebtedness, extension, refinancing or refunding is in an (1) the aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such IndebtednessIndebtedness may not exceed 100% of the value of the real property, fixtures and improvements collateralizing such Indebtedness (for purposes of this Section 5.3 (A) (xiv), and is on terms that the value of the real property will be determined by adding the appraised value of the real property as reported in the aggregate are not materially less favorable first MAI Appraisal performed at the request of a Transaction Party and the Dollar amount reported in Section 5.1 (J) hereof as the cost of improvements made to such real property after the Borrower or date of such SubsidiaryMAI Appraisal) , including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedand (2) no Transaction Party may guaranty such Indebtedness;
(fxv) Indebtedness arising from intercompany loans Permitted Subordinated Indebtedness; and
(ixvi) from the Borrower to any Guarantor; (ii) from any Subsidiary obligations in respect of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the SpinoffSeller Paper, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (xi) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case aggregate amount of Indebtedness described outstanding in clause (v) only, shall respect of Seller Paper at any given time may not permit any cash payments of any kind prior to the Maturity Dateexceed $25,000,000.00, and (zii) obligations in respect of Seller Paper incurred in connection with any payment by any such Guarantor under any guaranty given Permitted Acquisition may not exceed 20% of the Obligations shall result in a pro tanto reduction Acquisition Price of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;Permitted Acquisition.
Appears in 1 contract
Indebtedness. The Borrower shall will not, and shall will not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly create, incur, create, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness the Secured Obligations arising under or secured by the Loan Documents or any guaranty of or suretyship arrangement for the Secured Obligations arising under the Loan Documents;
(b) Indebtedness outstanding of the Borrower and its Restricted Subsidiaries existing on the date hereof and listed Fifth Amendment Effective Date that is set forth on Schedule 7.019.02, and any Permitted Refinancing Indebtedness in respect thereof;
(c) Guaranty Obligations accounts payable and accrued expenses, liabilities or other obligations to pay the deferred purchase price of Property or services, from time to time incurred in the ordinary course of business which are not greater than ninety (90) days past the date of invoice or delinquent or which are being contested in good faith by the Borrower or any Guarantor appropriate action and for which adequate reserves have been maintained in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below)accordance with GAAP;
(d) Indebtedness (i) Indebtedness in respect of under Capital Lease Obligations Leases and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition)that constitutes Purchase Money Indebtedness; provided, however, provided that the aggregate principal amount of all such Indebtedness permitted by described in this subsection (dSection 9.02(d) at any one time outstanding shall not exceed $200,000,000 an amount equal to two and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(ehalf percent (2.5%) or 7.02(k)of Consolidated Tangible Net Worth;
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted associated with bonds or surety obligations required by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred Governmental Requirements in connection with the renewal, extension, refinancing or refunding operation of such Indebtedness), the Oil and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedGas Properties;
(f) unsecured intercompany Indebtedness arising from intercompany loans (i) from between the Borrower and any Restricted Subsidiary or between Restricted Subsidiaries to the extent permitted by Section 9.05(g); provided that such Indebtedness is not held, assigned, transferred, negotiated or pledged to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (Person other than the Borrower or one of its Wholly-Owned Subsidiaries, and, provided further, that any such Indebtedness owed by a Subsidiary Loan Party shall be subordinated to the Secured Obligations on terms set forth in the Guaranty and Collateral Agreement;
(g) endorsements of negotiable instruments for collection in the ordinary course of business;
(h) unsecured Indebtedness in respect of a private placement or public sale of unsecured senior or subordinated notes by the Borrower and unsecured guarantees of such notes by one or more of the BorrowerGuarantors; provided that (i) no Event of Default has occurred and is continuing or would occur after giving effect to such incurrence, (ii) after giving effect to the incurrence of such Indebtedness on a pro forma basis, the Borrower shall be in compliance with all covenants set forth in Section 9.01 as of the date of incurrence, (iii) the latest maturity date of such Indebtedness shall not be prior to the ninety-first (91st) day after the Maturity Date and shall not have a weighted average life to maturity that is shorter than that of the existing Loans, and (iv) such Indebtedness does not have the benefit of, directly or indirectly, any covenants and related definitions that are materially more restrictive than those set forth herein; provided further that upon the incurrence of such Indebtedness after the Fifth Amendment Effective Date, the Borrowing Base in effect at such time will be reduced at the time of such issuance as provided in Section 2.08(f).
(i) Indebtedness arising from agreements providing for indemnification or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of (but not the payment of the purchase price by) the Borrower or any Restricted Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt andagreements, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment connection with acquisitions or Asset Sales by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries Restricted Subsidiaries;
(j) Indebtedness which may be deemed to exist pursuant to any guaranty, performance, surety, statutory, appeal or similar obligations (but not obligations for whose benefit such payment is made; provided, further that, borrowed money) incurred in the case ordinary course of business;
(k) Indebtedness under Treasury Management Agreements;
(l) guaranties by any Loan Party of Indebtedness described of any other Loan Party with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 9.02; and
(m) other Indebtedness not to exceed five percent (5%) of Consolidated Tangible Net Worth in clauses the aggregate at any one time outstanding; provided that if such Indebtedness exceeds ten percent (i)10%) of the Borrowing Base, (ii), (iii) and (iv) aboveupon the incurrence of such Indebtedness, the Investment Borrowing Base will be redetermined using the procedures for an Interim Redetermination in the intercompany loan by the lender thereof is permitted under accordance with Section 7.03;2.08 (but shall be in addition to any Interim Redetermination provided for in Section 2.08).
Appears in 1 contract
Indebtedness. The TheNeither the Borrower shall not, and nor any Guarantor shall not permit any of its Subsidiaries to, directly or indirectly indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness Indebtedness, except for the following:
(a) Indebtedness under the Loan DocumentsSecured Obligations;
(b) with respect to the Guarantors, the Indebtedness outstanding on under the date hereof Atalaya Subordinated Loan Agreement, provided such Indebtedness is at all times subject to the Atalaya Subordination and listed on Schedule 7.01Intercreditor Agreement;
(c) Guaranty Obligations incurred by unsecured Qualifying Subordinated Debt;
(d) Indebtedness existing as of the Borrower or any Guarantor in respect of Fourth Amendment Effective Date, including Indebtedness to be refinanced pursuant to the Fourth Amendment Effective Date Refinancing;
(e) Indebtedness of OppWin and OppWin Card, LLC solely to the Borrower or extent required to comply with its obligations under the Bank Partner Program Agreements;
(f) Permitted Refinancing of any Guarantor that is permitted by this Section 7.01 of the Indebtedness described in clauses (other than clause a) through (e) above;
(g) below)with respect to the Guarantors, purchase money Indebtedness and Capital Lease obligations in an aggregate principal amount not to exceed $[***] in the aggregate at any one time outstanding;
(h) obligations of the Guarantors arising out of interest rate, foreign currency, and commodity hedging agreements entered into with financial institutions in connection with bona fide hedging activities in the ordinary course of business and not for speculative purposes;
(i) Indebtedness constituting Standard Securitization Undertakings;
(j) guarantees of Indebtedness under Permitted Full Recourse SPV Facilities;
(k) endorsement of items for deposit or collection of commercial paper received in respect the ordinary course of Capital Lease Obligations and purchase money obligations for tangible property, business;
(iil) Indebtedness in respect of sale (i) workers’ compensation claims, unemployment insurance and leaseback transactions permitted by Section 7.13 other types of social security and (iii) other secured Indebtedness (including secured Indebtedness incurred employee health and disability benefits, or assumed by the Borrower and its Subsidiaries casualty-liability insurance, payment obligations in connection with a Permitted Acquisition); providedself-insurance or similar requirements, howeverand (ii) tenders, that the aggregate principal amount of all such Indebtedness permitted by this subsection completion guarantees, statutory obligations, surety, environmental or appeal bonds, bids, leases, government contracts, contracts (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(dother than for borrowed money), 7.02(e) performance bonds or 7.02(k)other obligations of a like nature;
(em) renewalsIndebtedness arising from agreements of the Guarantors providing for the indemnification, extensionsadjustment of purchase price, refinancings and refundings earn-out, royalty, milestone or similar obligations, in each case assumed with the acquisition or disposition of any business or Person permitted hereunder;
(n) Indebtedness permitted incurred by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is the Guarantors consisting of the financing of insurance premiums in the ordinary course of business in an aggregate principal amount not greater than to exceed $[***] at any time;
(o) Indebtedness incurred in the principal amount ordinary course of (plus reasonable feesbusiness in respect of netting services, expenses overdraft protections, employee credit card programs and any premium incurred other similar services in connection with the renewalcash management and deposit accounts, extension, refinancing or refunding of such Indebtedness)Indebtedness in connection with drafts payable for payroll and other ordinary course expense items, and is on terms that Indebtedness owed to depository banks for returned items incurred in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedordinary course of business;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrowerp) to the Borrower extent constituting Indebtedness, Indebtedness representing any taxes, assessments or any Subsidiary governmental charges to the extent such taxes are being contested in good faith and adequate reserves have been provided therefor in conformity with GAAP; and
(q) other unsecured indebtedness of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described Guarantors in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject an aggregate principal amount not to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit exceed $[***] at any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;one time outstanding.
Appears in 1 contract
Indebtedness. The Borrower shall notCreate, and shall not permit any of its Subsidiaries toincur, issue, assume, guaranty or otherwise become directly or indirectly createliable, incurcontingently or otherwise, assume or otherwise become or remain directly or indirectly liable with respect to (collectively, "incur") any Indebtedness except for the following:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted AcquisitionAcquired Debt); provided, however, that that, so long as no Default or Event of Default has occurred and is continuing, Borrower and its Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) if the aggregate principal amount Fixed Charge Coverage Ratio for Borrower's most recently ended four full fiscal quarters for which financial statements are available immediately preceding the date on which such additional Indebtedness is incurred would have been at least 2.0 to 1, determined on a pro forma basis (including a pro forma application of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(dnet proceeds therefrom), 7.02(eas if the additional Indebtedness had been incurred at the beginning of such four-quarter period. The foregoing provisions will not apply to:
(i) or 7.02(k)the incurrence by Borrower of Indebtedness pursuant to this Agreement;
(eii) renewals, extensions, refinancings the incurrence by Borrower and refundings its Restricted Subsidiaries of Existing Indebtedness;
(iii) the incurrence by Borrower and its Restricted Subsidiaries of Indebtedness permitted represented by clause the Senior Subordinated Notes and the Guarantees thereof by any Restricted Subsidiary pursuant to the provisions of the Indenture;
(biv) the incurrence by Borrower or (d) above any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or this clause (e); providedpurchase money obligations, howeverin each case incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, that any plant or equipment used in the business of Borrower or such renewalRestricted Subsidiary, extension, refinancing or refunding is in an aggregate principal amount not greater than to exceed $5.0 million at any one time outstanding;
(v) the principal amount incurrence by Borrower or any of (plus reasonable fees, expenses and any premium incurred its Restricted Subsidiaries of Indebtedness in connection with the renewalacquisition of assets or a new Restricted Subsidiary; provided, extensionthat, refinancing such Indebtedness was incurred by the prior owner of such assets or refunding such Restricted Subsidiary prior to such acquisition by Borrower or one of its Restricted Subsidiaries and was not incurred in connection with, or in contemplation of, such acquisition by Borrower or one of its Restricted Subsidiaries and provided, further, that the principal amount (or accreted value, as applicable) of such Indebtedness, together with any other outstanding Indebtedness incurred pursuant to this clause (v), does not exceed $5.0 million;
(vi) the incurrence of intercompany Indebtedness between or among Borrower and any of its Wholly Owned Restricted Subsidiaries; provided, that, any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Borrower or a Wholly Owned Restricted Subsidiary of Borrower, or any sale or other transfer of any such Indebtedness to a Person that is on terms that in the aggregate are not materially less favorable neither Borrower nor a Wholly Owned Restricted Subsidiary of Borrower, shall be deemed to the constitute an incurrence of such Indebtedness by Borrower or such Restricted Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedcase may be;
(fvii) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the incurrence by Borrower or any Guarantor; of its Restricted Subsidiaries of Permitted Refinancing Debt in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund Indebtedness that was permitted by this Agreement to be incurred;
(iiiviii) from the incurrence by Borrower's Unrestricted Subsidiaries of Non-Recourse Debt, provided, that, if, and to the extent that, any such Indebtedness ceases to be Non- Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Borrower;
(ix) the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the incurrence by Borrower or any Guarantor of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk with respect to any Subsidiary of the Borrower floating rate indebtedness that is not a Guarantorpermitted by the terms of this Agreement to be outstanding; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that and
(x) all such the incurrence by Borrower and its Restricted Subsidiaries of additional Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject an aggregate amount not to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit exceed $7.5 million at any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;one time outstanding.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Fonda Group Inc)
Indebtedness. The Borrower shall will not, and shall not nor will it permit any of its Subsidiaries Subsidiary to, directly or indirectly indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness the Obligations (including Incremental Facilities, Refinancing Term Loans, Extended Term Loans, all obligations arising under any Secured Rate Contract and all Bank Product Obligations, in each case to the Loan Documentsextent constituting Obligations);
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01[reserved];
(c) Guaranty Indebtedness of the Borrower or any Subsidiary in existence on the Closing Date and, to the extent that any such item of Indebtedness has an aggregate outstanding principal amount in excess of $5,000,000 (other than intercompany Indebtedness), such Indebtedness shall be described on Schedule 6.1;
(d) Indebtedness of the Borrower or any Subsidiary with respect to Capital Leases and Purchase Money Indebtedness in an aggregate amount at any time outstanding not to exceed the greater of (1) $30,000,000 and (2) an amount equal to 15% of LTM Consolidated Adjusted EBITDA, in each case determined at the time of incurrence (but not any refinancings thereof); provided that (i) such Indebtedness is issued and any Liens securing such Indebtedness are created within 270 days after the acquisition, construction, lease or improvement of the asset financed and (ii) any such Indebtedness is secured only by the asset acquired, constructed, leased or improved in connection with the incurrence of such Indebtedness or proceeds thereof and related property (and any improvements, accessions, proceeds, dividends or distributions in respect thereof and assets fixed or appurtenant thereto); provided, further, that individual financings provided by a lender or group of lenders may be cross collateralized to other financings provided by such lender or group;
(e) Indebtedness in respect of Rate Contracts entered into for non-speculative purposes;
(f) Indebtedness of any Subsidiary owing to the Borrower or to any other Subsidiary, or of the Borrower owing to any Subsidiary; provided that (i) all such Indebtedness owed by a Credit Party to a Subsidiary that is not a Guarantor Subsidiary is subordinated in right of payment to the Obligations on terms no less favorable than the subordination provisions contained in the Global Intercompany Note attached as Exhibit J hereto and (ii) in the case of any Indebtedness of any such Subsidiary that is not a Guarantor Subsidiary owing to the Borrower or any Guarantor Subsidiary, such Indebtedness is permitted under Section 6.6;
(g) Incremental Equivalent Debt;
(h) Credit Agreement Refinancing Indebtedness that does not constitute Obligations;
(i) Permitted Ratio Debt;
(j) [reserved];
(k) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Subsidiary, or Indebtedness attaching solely to assets that are acquired by the Borrower or any Subsidiary, in each case after the Closing Date; provided that (i) such Indebtedness existed at the time such Person became a Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation or contemplation thereof and (ii) such Indebtedness is not guaranteed by the Borrower or any of its Subsidiaries (other than by any Person that becomes a Subsidiary in connection with the foregoing and its Subsidiaries);
(l) Indebtedness incurred by the Borrower or any Guarantor Subsidiary in the form of indemnification, incentive, non-compete, consulting, adjustment of purchase price or similar obligations (including “earn-outs” or similar obligations in connection with acquisitions) and other contingent obligations (other than in respect of Indebtedness for borrowed money of another Person), or guaranty securing the performance of the Borrower or any Subsidiary (both before and after liability associated therewith becomes fixed), in each case, pursuant to any agreement entered into in connection with dispositions or acquisitions (including Permitted Acquisitions and other permitted Investments) of any business, assets or Subsidiary;
(m) Indebtedness pursuant to any guaranties, performance, surety, statutory, appeal or similar bonds or obligations incurred in the ordinary course of business or any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities (including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims) or tenant improvement loans incurred in the ordinary course of business;
(n) guaranties of the obligations of suppliers, customers, franchisees, lessors and licensees of the Borrower or any Subsidiary incurred in the ordinary course of business;
(o) [reserved];
(p) Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below)Subsidiary in connection with Bank Products incurred in the ordinary course of business;
(iq) Indebtedness owing to any unaffiliated insurance company or a financing company in respect connection with the financing of Capital Lease Obligations and purchase money obligations for tangible property, insurance premiums;
(iir) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries or any Subsidiary in connection with a Permitted Acquisition); provided, however, provided that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of such Indebtedness described that is assumed, such Indebtedness was not created in clause (v) only, shall not permit any cash payments anticipation or contemplation of any kind prior to the Maturity Date, such Permitted Acquisition and (zii) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of any such Indebtedness described in clauses that is incurred, such Indebtedness would qualify as Permitted Ratio Debt;
(i)s) [reserved];
(t) to the extent constituting Indebtedness, (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is Investments permitted under Section 7.036.6 (other than under Section 6.6(n) or 6.6(q));
Appears in 1 contract
Indebtedness. The Borrower shall will not, and shall will not permit any of its Subsidiaries Subsidiaries to, directly or indirectly contract, create, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations incurred pursuant to this Agreement and purchase money obligations for tangible property, the other Credit Documents;
(ii) Existing Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) to the extent the same is listed on Schedule VIII, but no refinancings or renewals thereof other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all than such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is renewals which are on terms that (taken in the aggregate are aggregate) not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, and its Subsidiaries than the terms of the Indebtedness being renewed, extended, refinanced or refunded;
renewed (f) it being understood that increases in interest rates and other pricing provisions with respect to such Indebtedness arising from intercompany loans (i) from which reflect market conditions existing at the Borrower to any Guarantor; (ii) from any Subsidiary time of the Borrower refinancing or renewal of such Indebtedness shall not be considered materially less favorable to the Borrower or any Guarantor; the respective Subsidiary) and which do not increase the outstanding principal amount of such Indebtedness at the time of such refinancing or renewal (except for amounts required to pay accrued and unpaid interest on and premiums with respect to, such Indebtedness at the time of such refinancing or renewal or reasonable fees and expenses incurred in connection with such refinancing or renewal), provided that the Indebtedness set forth under item II of Schedule VIII shall not be permitted under this Section 9.04(ii);
(iii) from any Subsidiary Indebtedness of the Borrower and its Subsidiaries (w) consisting of Capitalized Lease Obligations to the extent permitted pursuant to Section 9.07, (x) under sale-leaseback transactions, (y) incurred pursuant to purchase money mortgages or (z) subject to Liens permitted under Section 9.01(vii)(C); provided that is not a Loan Party in no event shall the aggregate principal amount of Capitalized Lease Obligations, sale-leaseback transactions and other Indebtedness permitted by this clause (iii) exceed $25,000,000 at any time outstanding;
(iv) intercompany Indebtedness among the Borrower and the Subsidiary Guarantors to any other the extent permitted by Section 9.05(iii);
(A) Indebtedness of Non-Guarantor Subsidiaries owing to the Borrower and the Subsidiary Guarantors to the extent permitted under Section 9.05(iv), (B) Indebtedness of the Borrower and the Subsidiary Guarantors owing to Non-Guarantor Subsidiaries to the extent permitted under Section 9.05(v) and (C) intercompany Indebtedness among the Non-Guarantor Subsidiaries to the extent permitted by Section 9.05(vi);
(vi) Indebtedness under Other Hedging Agreements providing protection against fluctuations in currency values in connection with the Borrower’s or any Credit Party’s ordinary course of business operations so long as management of the Borrower or such Credit Party, as the case may be, has determined in good faith that is the entering into of such Other Hedging Agreements are bona fide hedging activities;
(vii) unsecured senior subordinated Indebtedness of the Borrower (and unsecured senior subordinated guarantees thereof by any Subsidiary Guarantor for so long as such Person remains a Subsidiary Guarantor) incurred pursuant to the Senior Subordinated Notes and the other Senior Subordinated Note Documents, in an aggregate principal amount not to exceed $300,000,000 less the amount of any repayments of principal thereof after July 30, 2001;
(viii) amounts constituting deferred purchase price or earnouts in connection with Permitted Acquisitions; provided that the aggregate amount of all Indebtedness permitted under this clause (viii) (taking the maximum amount that may become due in connection therewith) shall not exceed $50,000,000 at any time outstanding;
(ix) amounts constituting deferred payment obligations resulting from adjudications or settlements of any claims or litigation;
(x) Indebtedness owing to Subsidiaries of the Borrower in connection with the cash management program of the Borrower;
(xi) Contingent Obligations of the Borrower and its Subsidiaries constituting guarantees by the Borrower of Indebtedness of any Subsidiary Guarantor (for so long as such Person remains a Loan Party; Subsidiary Guarantor) or guarantees by any Subsidiary Guarantor (ivfor so long as such Person remains a Subsidiary Guarantor) from of Indebtedness of any of the Borrower or any other Subsidiary Guarantor (for so long as such Person remains a Subsidiary Guarantor), but in each case only to the extent that the Indebtedness being guaranteed is otherwise permitted by this Section 9.04, provided that this clause (xi) shall not permit any Subsidiary Contingent Obligations (i) in respect of the Borrower that is not a Guarantor; Convertible Subordinated Notes or (vii) prior in respect of Senior Subordinated Notes, Permitted Subordinated Notes or Permitted Senior Unsecured Notes (with any guarantees thereof by Subsidiary Guarantors to be permitted only in accordance with the Spinoffprovisions of Section 9.04(vii), from MII (xv) or any Affiliate (xix), as the case may be);
(xii) Contingent Obligations of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary Guarantor (for so long as such Person remains a Subsidiary Guarantor) constituting guarantees of (i) obligations of Health Care Joint Ventures under their operating leases and (ii) Indebtedness of Health Care Joint Ventures in an aggregate principal amount for all such Indebtedness not exceeding $5,000,000;
(xiii) Indebtedness of the Borrower consisting of deferred purchase price for redemptions or repurchases of the Borrower; provided’s capital stock, howeverprovided that the Borrower’s payment obligations thereunder are limited to the extent necessary to be in compliance with Section 9.03(ii);
(xiv) Indebtedness under Interest Rate Protection Agreements entered into with respect to other Indebtedness permitted under this Section 9.04 so long as the entering into of such Interest Rate Protection Agreements are bona fide hedging activities and are not for speculative purposes;
(xv) unsecured subordinated Indebtedness of the Borrower (and unsecured subordinated guarantees thereof by any Subsidiary Guarantor (for so long as such Person remains a Subsidiary Guarantor)) incurred under Permitted Subordinated Notes and the other Permitted Subordinated Note Documents in an aggregate principal amount not to exceed $300,000,000 so long as (A) at least five Business Days prior to the issuance thereof, that the Borrower shall have delivered to the Administrative Agent the then current drafts of the Permitted Subordinated Note Documents and with any changes thereto made after the initial delivery of such Permitted Subordinated Note Documents to be delivered to the Administrative Agent concurrently with the delivery thereof to the Persons to be party to such Permitted Subordinated Note Documents and prior to the issuance of the related Permitted Subordinated Notes, (xB) all the final maturity date thereof is no earlier than six months following the latest Maturity Date in effect at the time of the issuance of any such Indebtedness Permitted Subordinated Notes for then outstanding Term Loans, (C) there are no scheduled amortization, mandatory redemption or sinking fund provisions or similar provisions prior to the maturity of the Permitted Subordinated Notes (other than provisions requiring an offer to purchase Permitted Subordinated Notes to be made upon the occurrence of a change in control or asset sale on terms not more onerous (from the perspective of the Borrower) than those contained in the Senior Subordinated Note Indenture as originally in effect), (D) the subordination provisions applicable to the Permitted Subordinated Notes shall be substantially identical to those contained in the Senior Subordinated Notes (although at the option of the Borrower, the Senior Subordinated Notes may be included as “Senior Debt”, but not “Designated Senior Debt”, for purposes of the subordination provisions contained in any issue of Permitted Subordinated Notes), (E) the interest rates (calculated including any original issued discount in respect thereof) and related premiums applicable to any issue of Permitted Subordinated Notes shall be based on then market interest rates, (F) all other terms and conditions of each issue of Permitted Subordinated Notes shall, in the aggregate, be no less favorable, in any material respect, to the Borrower (and any Subsidiary Guarantors) and the Lenders than the terms contained in the Senior Subordinated Notes and related Senior Subordinated Note Documents, (G) no Default or Event of Default then exists or would result from the issuance thereof, (H) prior to the issuance of any Permitted Subordinated Notes, the Borrower shall have delivered to the Administrative Agent and each of the Lenders a certificate of the Borrower’s Chief Financial Officer certifying (and showing the calculations therefor in reasonable detail) that the Borrower and its Subsidiaries shall be in compliance with Sections 9.08 and 9.09 on a Post-Test Period Pro Forma Basis on the date of the respective issuance of the Permitted Subordinated Notes and after giving effect thereto and the application of the proceeds thereof on such date and (I) prior to the issuance of any Permitted Subordinated Notes, the Borrower shall deliver evidence satisfactory to the Administrative Agent, including a certificate of the Chief Financial Officer of the Borrower (accompanied by any required financial calculations in reasonable detail) and an opinion of counsel for the Borrower, that the issuance of such Permitted Subordinated Notes is permitted by the terms of the Senior Subordinated Notes (and related Senior Subordinated Note Documents), the Convertible Subordinated Debt (and related Convertible Subordinated Debt Documents), any Permitted Senior Unsecured Notes (and related Permitted Senior Unsecured Note Documents) and any other issue of Permitted Subordinated Notes (and related Permitted Subordinated Note Documents) then outstanding;
(xvi) Contingent Obligations of the Borrower or any of its Subsidiaries arising from Physician Support Obligations to the extent same are permitted under Section 9.05(xiv);
(xvii) Indebtedness described of the Borrower and its Subsidiaries assumed at the time of a Permitted Acquisition, provided that (I) such Indebtedness was not incurred in clause connection with, or in anticipation or contemplation of, such Permitted Acquisition and (iiiII) or (v) such Indebtedness does not constitute debt for borrowed money, it being understood and agreed that Capitalized Lease Obligations and purchase money Indebtedness shall not constitute debt for borrowed money for purposes of this clause Section 9.04(xvii); provided that in no event shall the aggregate principal amount of Indebtedness outstanding pursuant to this Section 9.04(xvii) at any time, when added to the aggregate principal amount of Indebtedness outstanding pursuant to Section 9.04(iii) at such time exceed $50,000,000;
(f)xviii) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien unsecured subordinated Indebtedness of the Borrower, but not any Subsidiary thereof, incurred pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Convertible Subordinated Debt andDebt, in the case of Indebtedness described in clause (v) only, shall an aggregate principal amount not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of exceed $17,641,800 less the amount of any repayments thereof after the date of the initial incurrence thereof;
(xix) senior unsecured Indebtedness owed of the Borrower (and senior unsecured guarantees thereof by any Subsidiary Guarantor (for so long as such Person remains a Subsidiary Guarantor) incurred under Permitted Senior Unsecured Notes and the other Permitted Senior Unsecured Note Documents in an aggregate principal amount not to exceed, when added to the aggregate amount of Incremental Term Loan Commitments provided by all Incremental Lenders pursuant to Section 1.13 from and after the Effective Date, an amount equal to $200,000,000 so long as (A) at least five Business Days prior to the issuance thereof, the Borrower shall have delivered to the Administrative Agent and each Lender the then current drafts of the Permitted Senior Unsecured Note Documents and with any changes thereto made after the initial delivery of such Permitted Senior Unsecured Note Documents to be delivered to the Administrative Agent concurrently with the delivery thereof to the Persons to be party to such Permitted Senior Unsecured Note Documents and prior to the incurrence of the related Permitted Senior Unsecured Notes, (B) the final maturity thereof is no earlier than six months following the latest Maturity Date in effect at the time of the issuance of any such Permitted Senior Unsecured Notes for then outstanding Term Loans, (C) the respective Permitted Senior Unsecured Note Documents do not contain (i) any financial maintenance covenants (or defaults having the same effect as a financial maintenance covenant) or (ii) any cross-default provisions (although such Permitted Senior Unsecured Note Documents may include a provision for a cross-acceleration to any other material Indebtedness) (D) there are no scheduled amortization, mandatory redemption or sinking fund provisions or similar provisions prior to the maturity of its Subsidiaries for whose benefit such payment is made; providedthe Permitted Senior Unsecured Notes (other than provisions requiring an offer to purchase or mandatory repayment, further that, as applicable with respect to the Permitted Senior Unsecured Notes upon the occurrence of a change in control or asset sale on terms not more onerous (from the perspective of the Borrower) than those contained in the case of Indebtedness described Senior Subordinated Note Indenture as originally in clauses (ieffect), (iiE) the interest rates (calculated including any original issue discount in respect thereof) and related premiums applicable to any incurrence of Permitted Senior Unsecured Notes shall be based on then market interest rates, (F) the other terms and conditions of each incurrence of Permitted Senior Unsecured Notes shall be no more onerous or restrictive on the Borrower (or any Subsidiary Guarantor) than the terms and conditions contained in this Agreement, (G) no Default or Event of Default then exists or would result from the incurrence thereof, (H) prior to the incurrence of any Permitted Senior Unsecured Notes, the Borrower shall have delivered to the Administrative Agent and each of the Lenders a certificate of the Borrower’s Chief Financial Officer certifying (and showing the calculations therefor in reasonable detail) that the Borrower and its Subsidiaries shall be in compliance with Sections 9.08 and 9.09 on a Post-Test Period Pro Forma Basis on the date of the respective issuance of Permitted Senior Unsecured Notes and after giving effect thereto and the application of the proceeds thereof on such date and (I) prior to the issuance of any Permitted Senior Unsecured Notes, the Borrower shall deliver evidence satisfactory to the Administrative Agent, including a certificate of the Chief Financial Officer of the Borrower (accompanied by any financial calculations in reasonable detail) and an opinion of counsel for the Borrower, that the issuance of such Permitted Senior Unsecured Notes is permitted by the terms of the Senior Subordinated Notes (and related Senior Subordinated Note Documents), the Convertible Subordinated Debt (iiiand related Convertible Subordinated Note Documents), any Permitted Subordinated Notes (and related Permitted Subordinated Note Documents) and any other Permitted Senior Unsecured Notes (ivand related Permitted Senior Unsecured Note Documents) above, the Investment in the intercompany loan then outstanding;
(xx) Contingent Obligations not otherwise permitted by the lender thereof is foregoing clauses of this Section 9.04 not to exceed $5,000,000 in aggregate amount of any time outstanding; and
(xxi) Indebtedness not otherwise permitted under by the foregoing clauses of this Section 7.03;9.04 not to exceed $10,000,000 in aggregate principal amount at any time outstanding.
Appears in 1 contract
Indebtedness. The Borrower (a) Holdings shall not, and nor shall not Holdings permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly indirectly:
(i) create, incur, assume issue, assume, guarantee or otherwise become or remain directly or indirectly liable liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness except (including Acquired Indebtedness), or
(ii) issue any shares of Disqualified Stock or permit any Restricted Subsidiary to issue any shares of Disqualified Stock or Preferred Stock; provided that Holdings and the Borrower may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness), issue shares of Disqualified Stock and issue shares of Preferred Stock, in each case, if (any Indebtedness, Disqualified Stock or Preferred Stock incurred or issued pursuant to following clauses (A), (B), (C) and (D), “Permitted Ratio Debt”):
(A) with respect to Indebtedness secured by Liens on the Collateral on a pari passu basis with the Liens on the Collateral securing the First Lien Obligations, the First Lien Net Leverage Ratio for the followingTest Period preceding the date on which such Indebtedness is incurred would be no greater than 3.00 to 1.00;
(B) with respect to Indebtedness that is secured by Liens on the Collateral on a basis that is junior in priority to the Liens on the Collateral securing the First Lien Obligations, the Secured Net Leverage Ratio for the Test Period preceding the date on which such Indebtedness is incurred would be no greater than 5.00 to 1.00;
(C) with respect to (i) Indebtedness that is either (x) secured by Liens on property that does not constitute Collateral or (y) not secured, or (ii) any Disqualified Stock or Preferred Stock, in each case, the Total Net Leverage Ratio for the Test Period preceding the date on which such Indebtedness is incurred or such Disqualified Stock or Preferred Stock is issued would be no greater than 5.00 to 1.00; or
(D) with respect to Indebtedness that is not secured, or any Disqualified Stock or Preferred Stock, in each case, the Interest Coverage Ratio for the Test Period preceding the date on which such Indebtedness is incurred or such Disqualified Stock or Preferred Stock is issued would be no less than 2.00 to 1.00, in each case, determined on a pro forma basis; provided further that (I) the cash proceeds of any proposed Permitted Ratio Debt incurred not applied promptly for the specified transaction in connection with such incurrence upon receipt thereof may only be netted from Indebtedness for purposes of calculating the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio, the Total Net Leverage Ratio or the Interest Coverage Ratio, as applicable, (II) Permitted Ratio Debt in the form of Indebtedness (x) shall not mature earlier than the Original Term Loan Maturity Date and (y) shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the Closing Date Term Loans outstanding on the date of incurrence of such Permitted Ratio Debt and (III) the incurrence and guarantee of Permitted Ratio Debt under this Section 7.02(a) by Restricted Subsidiaries of Holdings that are not Guarantors, when aggregated with principal amount of Permitted Ratio Debt of such Restricted Subsidiaries of Holdings that are not Guarantors then outstanding and incurred or issued pursuant to this Section 7.02(a) and Permitted Acquisition Debt of such Restricted Subsidiaries of Holdings that are not Guarantors then outstanding and incurred or issued pursuant to Section 7.02(b)(14)(a), together with any Refinancing Indebtedness in respect thereof (excluding any Incremental Amounts), shall not exceed (as of the date such Permitted Ratio Debt is issued, incurred or otherwise obtained) the greater of (x) $292.5 million and (y) 45% of Consolidated EBITDA of Holdings, the Borrower and the Restricted Subsidiaries for the most recently ended Test Period (calculated on a pro forma basis) and (IV) if any such Indebtedness incurred under Section 7.02(a)(A) consists of syndicated Dollar-denominated term loans secured by a Lien on the Collateral ranking pari passu with the Obligations under this Agreement, then the Borrower shall comply with the “most favored nation” pricing provisions of Section 2.14(5)(c) as if such Indebtedness were Incremental Term Loans incurred pursuant to Section 2.14.
(b) The provisions of Section 7.02(a) will not apply to:
(1) Indebtedness under the Loan Documents (including Incremental Loans, Other Loans, Extended Term Loans, Loans made pursuant to Extended Revolving Commitments and Replacement Loans);
(2) commercial letters of credit (in each case, for the avoidance of doubt, to the extent constituting Indebtedness) not issued under the Revolving Facility (and reimbursement and backstop obligations in connection therewith) in an aggregate amount under this clause (2) not to exceed the greater of (x) $130.0 million and (y) 20.0% of Consolidated EBITDA at the time incurred;
(3) the incurrence of Indebtedness by Holdings and any Restricted Subsidiary in existence on the Closing Date (excluding Indebtedness described in the preceding clauses (1) and (2)); provided that any such item of Indebtedness with an aggregate outstanding principal amount on the Closing Date in excess of $35.0 million shall be set forth on Schedule 7.02;
(4) the incurrence of Attributable Indebtedness and Indebtedness (including Capitalized Lease Obligations and Purchase Money Obligations) and Disqualified Stock incurred or issued by Holdings, the Borrower or any Restricted Subsidiary and Preferred Stock issued by any Restricted Subsidiary, to finance the purchase, lease, expansion, construction, installation, replacement, repair or improvement of property (real or personal), equipment or other assets, including assets that are used or useful in a Similar Business, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets in an aggregate principal amount, together with any Refinancing Indebtedness in respect thereof (excluding any Incremental Amounts) and all other Indebtedness, Disqualified Stock or Preferred Stock incurred or issued and outstanding under this clause (4) at such time, not to exceed (as of the date such Indebtedness, Disqualified Stock or Preferred Stock is issued, incurred or otherwise obtained) (I) the greater of (x) $195.0 million and (y) 30.0% of Consolidated EBITDA of Holdings, the Borrower and the Restricted Subsidiaries for the most recently ended Test Period (calculated on a pro forma basis) plus (II) an unlimited amount so long as the Total Net Leverage Ratio for the Test Period preceding the date on which such Indebtedness is incurred or such Disqualified Stock or Preferred Stock is issued (the cash proceeds of which that are not applied promptly for the specified transaction in connection with such Indebtedness incurred, Disqualified Stock or Preferred Stock issued upon receipt thereof may only be netted from Indebtedness for purposes of calculating the Total Net Leverage Ratio) would be no greater than 5.00 to 1.00;
(5) Indebtedness incurred by Holdings, the Borrower or any Restricted Subsidiary (a) constituting reimbursement obligations with respect to letters of credit, bank guarantees, banker’s acceptances, warehouse receipts, or similar instruments issued or entered into, or relating to obligations or liabilities incurred, in the ordinary course of business or consistent with industry practice, including in respect of workers’ compensation claims, performance, completion or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance, unemployment insurance or other social security legislation or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims, performance, completion or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or (b) as an account party in respect of letters of credit, bank guarantees or similar instruments in favor of suppliers, trade creditors or other Persons issued or incurred in the ordinary course of business or consistent with industry practice;
(6) the incurrence of Indebtedness arising from agreements of Holdings, the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price, earnouts, other contingent consideration obligations and other deferred purchase price or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(7) the incurrence of Indebtedness by Holdings and owing to a Restricted Subsidiary or the issuance of Disqualified Stock of Holdings to a Restricted Subsidiary (or to any Parent Company which is substantially contemporaneously transferred to any Restricted Subsidiary); provided that any such Indebtedness for borrowed money owing to a Restricted Subsidiary that is not a Guarantor is expressly subordinated in right of payment to the Loans to the extent permitted by applicable law; provided further that any subsequent issuance or transfer of any Capital Stock or any other event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness or Disqualified Stock (except to Holdings or another Restricted Subsidiary or any pledge of such Indebtedness or Disqualified Stock constituting a Permitted Lien) will be deemed, in each case, to be an incurrence of such Indebtedness (to the extent such Indebtedness is then outstanding) or issuance of such Disqualified Stock (to the extent such Disqualified Stock is then outstanding) not permitted by this clause (7);
(8) the incurrence of Indebtedness of a Restricted Subsidiary owing to Holdings or another Restricted Subsidiary (or to any Parent Company which is substantially contemporaneously transferred to Holdings, the Borrower or any Restricted Subsidiary) to the extent permitted by Section 7.05; provided that any such Indebtedness for borrowed money incurred by a Guarantor and owing to a Restricted Subsidiary that is not a Guarantor is expressly subordinated in right of payment to the Guaranty of the Loans of such Guarantor to the extent permitted by applicable law; provided further that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any such subsequent transfer of any such Indebtedness (except to Holdings or a Restricted Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien) will be deemed, in each case, to be an incurrence of such Indebtedness (to the extent such Indebtedness is then outstanding) not permitted by this clause (8);
(9) the issuance of shares of Preferred Stock or Disqualified Stock of a Restricted Subsidiary to Holdings, the Borrower or a Restricted Subsidiary (or to any Parent Company which is within 180 days transferred to Holdings, the Borrower or any Restricted Subsidiary); provided that any subsequent issuance or transfer of any Capital Stock or any other event that results in any such Restricted Subsidiary that holds such Preferred Stock or Disqualified Stock ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock or Disqualified Stock (except to the Borrower or another Restricted Subsidiary or any pledge of such Preferred Stock or Disqualified Stock constituting a Permitted Lien) will be deemed, in each case, to be an issuance of such shares of Preferred Stock or Disqualified Stock (to the extent such Preferred Stock or Disqualified Stock is then outstanding) not permitted by this clause (9);
(10) the incurrence of Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(11) the incurrence of obligations in respect of self-insurance and obligations in respect of performance, bid, appeal and surety bonds and performance, banker’s acceptance facilities and completion guarantees and similar obligations provided by Holdings, the Borrower or any Restricted Subsidiary or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent with industry practice, including those incurred to secure health, safety and environmental obligations;
(12) the incurrence of:
(a) Indebtedness under or issuance of Disqualified Stock of Holdings and the Loan Documentsincurrence or issuance of Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary in an aggregate principal amount or liquidation preference up to 100.0% of the net cash proceeds received by Holdings since the Closing Date from the issue or sale of Equity Interests of Holdings or contributions to the capital of Holdings, including through consolidation, amalgamation or merger (in each case, other than proceeds of Disqualified Stock or any exercise of the cure right set forth in Section 8.04 and other than proceeds received from Holdings or a Restricted Subsidiary) as determined in accordance with clauses (3)(b) and (3)(c) of Section 7.05(a) to the extent such net cash proceeds or cash have not been applied pursuant to such clauses to make Restricted Payments pursuant to Section 7.05(a) or to make Permitted Investments (other than Permitted Investments specified in clause (1), (2) or (3) of the definition thereof);
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect issuance of Indebtedness Disqualified Stock of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 Holdings and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d)incurrence or issuance of Indebtedness, 7.02(e) Disqualified Stock or 7.02(k);
(e) renewals, extensions, refinancings and refundings Preferred Stock of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is Restricted Subsidiary in an aggregate principal amount not greater than or liquidation preference that, when aggregated with the principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding and incurred or issued, as applicable, pursuant to this clause (12)(b), together with any Refinancing Indebtedness in respect thereof (excluding any Incremental Amounts), does not exceed (as of the date such Indebtedness, Disqualified Stock or Preferred Stock is issued, incurred or otherwise obtained) (i) the greater of (I) $260.0 million and (II) 40.0% of Consolidated EBITDA of Holdings, the Borrower and the Restricted Subsidiaries for the most recently ended Test Period (calculated on a pro forma basis) plus, without duplication, (ii) in the event of any extension, replacement, refinancing, renewal or defeasance of any such Indebtedness, Disqualified Stock or Preferred Stock, an amount equal to (x) any accrued and unpaid interest on the Indebtedness, any accrued and unpaid dividends on the Preferred Stock, and any accrued and unpaid dividends on the Disqualified Stock being so refinanced, extended, replaced, refunded, renewed or defeased plus reasonable (y) the amount of any tender premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Indebtedness, Disqualified Stock or Preferred Stock and any defeasance costs and any fees and expenses (including original issue discount, upfront fees, expenses underwriting, arrangement and any premium similar fees) incurred in connection with the renewalissuance of such new Indebtedness, Disqualified Stock or Preferred Stock or the extension, refinancing replacement, refunding, refinancing, renewal or refunding defeasance of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower Disqualified Stock or such SubsidiaryPreferred Stock, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; minus (iii) from any General Debt Basket Reallocated Amount; and
(c) Indebtedness or issuance of Disqualified Stock of Holdings and the incurrence or issuance of Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary in an aggregate principal amount or liquidation preference up to 200.0% of the Borrower that is not a Loan Party to any aggregate amount of dividends, payments and other Subsidiary distributions on account of Equity Interests permitted under clause (A) or (B) of the Borrower that is not a Loan Party; definition of Restricted Payment permitted pursuant to Section 7.05 (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement12)(c), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;“R
Appears in 1 contract
Indebtedness. (i) The Borrower shall will not, and shall will not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly indirectly, create, incur, assume issue, assume, guarantee or otherwise become or remain directly or indirectly liable liable, contingently or otherwise, (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness except for the following:
(aincluding Acquired Indebtedness) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition)preferred stock; provided, however, that the Borrower may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness), issue shares of Disqualified Stock and issue shares of preferred stock, if the Fixed Charge Coverage Ratio for the Borrower and the Restricted Subsidiaries for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or preferred stock is issued would have been at least 2.00 to 1.00, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock or preferred stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of such four-quarter period.
(ii) The foregoing limitations will not apply to:
(a) the incurrence of Indebtedness of the Borrower under Credit Facilities in an aggregate amount at any time outstanding not to exceed $300 million pursuant to this clause (a);
(b) the incurrence by the Borrower of Indebtedness represented by the Senior Notes (other than any Additional Notes (as defined in the Indenture));
(c) Existing Indebtedness and any Indebtedness under this Agreement (but excluding any Indebtedness described in clauses (a) and (b));
(d) Indebtedness (including Capitalized Lease Obligations), Disqualified Stock and preferred stock incurred by the Borrower or any of its Restricted Subsidiaries, to finance the purchase, lease or improvement of property (real or personal) or equipment that is used or useful in a Similar Business, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, in an aggregate principal amount which, when aggregated with the principal amount of all such Indebtedness permitted by other Indebtedness, Disqualified Stock and preferred stock then outstanding and incurred pursuant to this subsection clause (d) at and including all Refinancing Indebtedness incurred to refund, refinance or replace any one time outstanding shall other Indebtedness, Disqualified Stock and preferred stock incurred pursuant to this clause (d), does not exceed the greater of (x) $200,000,000 50 million and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e(y) or 7.02(k)1% of Total Assets;
(e) renewalsIndebtedness incurred by the Borrower or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit and bank guarantees issued in the ordinary course of business, extensionsincluding without limitation letters of credit in respect of workers’ compensation claims, refinancings health, disability or other benefits to employees or former employees or their families or property, casualty or liability insurance or self-insurance, and refundings letters of credit in connection with the maintenance of, or pursuant to the requirements of, environmental or other permits or licenses from governmental authorities, or other Indebtedness permitted by clause (b) or (d) above or this clause (e)with respect to reimbursement type obligations regarding workers’ compensation claims; provided, however, that any upon the drawing of such renewal, extension, refinancing letters of credit or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding incurrence of such Indebtedness), and is on terms that in the aggregate such obligations are not materially less favorable to the Borrower reimbursed within 30 days following such drawing or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedincurrence;
(f) Indebtedness arising from intercompany loans (i) from agreements of the Borrower to or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any Guarantor; business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(iig) from any Subsidiary Indebtedness of the Borrower to a Restricted Subsidiary; provided that, other than in the Borrower or any Guarantor; (iii) from any Subsidiary case of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and the Restricted Subsidiaries to finance working capital needs of the Restricted Subsidiaries, any such Indebtedness is subordinated in right of payment to the Loans; provided further that is not a Loan Party to any subsequent issuance or transfer of any Capital Stock -57- or any other event which results in any such Restricted Subsidiary of the Borrower that is not ceasing to be a Loan Party; (iv) from the Borrower Restricted Subsidiary or any Guarantor to other subsequent transfer of any Subsidiary of the Borrower that is not a Guarantor; or such Indebtedness (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) except to the Borrower or any Subsidiary another Restricted Subsidiary) shall be deemed, in each case to be an incurrence of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of not permitted by this clause (fg);
(h) shall be evidenced by promissory notes and all such notes shall be subject to Indebtedness of a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Restricted Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is madeanother Restricted Subsidiary; provided, further provided that, any subsequent transfer of any such Indebtedness (except to the Borrower or another Restricted Subsidiary) shall be deemed in each case to be an incurrence of such Indebtedness not permitted by this clause (h);
(i) shares of preferred stock of a Restricted Subsidiary issued to the Borrower or another Restricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of preferred stock (except to the Borrower or another Restricted Subsidiary) shall be deemed in each case to be an issuance of Indebtedness described in clauses such shares of preferred stock not permitted by this clause (i);
(j) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes) for the purpose of limiting:
(A) interest rate risk; or
(B) exchange rate risk with respect to any currency exchange; or
(C) commodity risk; or
(D) any combination of the foregoing;
(k) obligations in respect of performance, bid, appeal and surety bonds and completion guarantees provided by the Borrower or any Restricted Subsidiary in the ordinary course of business or consistent with past practice or industry practice;
(iil) Indebtedness, Disqualified Stock and preferred stock of the Borrower or any Restricted Subsidiary not otherwise permitted hereunder in an aggregate principal amount or liquidation preference, which when aggregated with the principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and preferred stock then outstanding and incurred pursuant to this clause (l), (iii) and (iv) above, does not at any one time outstanding exceed the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;sum of:
Appears in 1 contract
Sources: Credit Agreement (Aircastle LTD)
Indebtedness. The Borrower No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries (other than Immaterial Subsidiaries) to, directly or indirectly indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under the Loan DocumentsObligations;
(b) Non-Recourse Project Indebtedness; provided that (i) Borrower shall be in pro forma compliance with each of the covenants set forth in Section 6.7 as of the last day of the most recently ended Fiscal Quarter preceding the entry into definitive documentation in respect of such Indebtedness outstanding on for which financial statements are available after giving effect to the date hereof incurrence of such Indebtedness, or (ii) if Borrower is not in pro forma compliance with each of the covenants set forth in Section 6.7 as of the last day of the most recently ended Fiscal Quarter preceding the entry into definitive documentation in respect of such Indebtedness for which financial statements are available, then such Indebtedness shall be incurred in connection with a transaction the effect of which is to increase the Debt Service Coverage Ratio and listed on Schedule 7.01decrease the Leverage Ratio;
(c) Guaranty Obligations Indebtedness of a Subsidiary of Holdings owed to Holdings or a Subsidiary of Holdings in the nature of shareholder loans or intercompany loans and, if owed to a Credit Party, evidenced by an Intercompany Note and subject to a First Priority Lien pursuant to the Pledge and Security Agreement;
(d) in connection with the consummation of any permitted Investment or permitted disposition of any business, assets or Subsidiary of Holdings or any of its Subsidiaries, Indebtedness incurred by the Borrower Holdings or any Guarantor Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Earn Out Indebtedness), or from guaranties or letters of credit, surety bonds or performance bonds securing the performance by Holdings or any such Subsidiary pursuant to such agreements; provided that each Subsidiary of a Closing Date Project Holdco may only incur such Indebtedness with respect to the Subsidiaries of such Closing Date Project Holdco that is the direct or indirect parent of such Subsidiary;
(e) Indebtedness of Holdings or its Subsidiaries in the nature of guaranties or letters of credit, surety bonds or performance bonds securing the performance of a Subsidiary or its Subsidiaries, in each case pursuant to an agreement such Subsidiary is not prohibited from entering into by this Agreement; provided that each Subsidiary of a Closing Date Project Holdco may only incur such Indebtedness with respect to the Subsidiaries of such Closing Date Project Holdco that is the direct or indirect parent of such Subsidiary;
(f) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory or appeal bonds or similar obligations incurred in the ordinary course of business; provided that each Subsidiary of a Closing Date Project Holdco may only incur such Indebtedness with respect to the Subsidiaries of such Closing Date Project Holdco that is the direct or indirect parent of such Subsidiary;
(g) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with Deposit Accounts;
(h) guaranties in the ordinary course of business of obligations to suppliers, customers, franchisees and licensees; provided that each Subsidiary of a Closing Date Project Holdco may only incur such Indebtedness with respect to the Subsidiaries of the Borrower or any Guarantor such Closing Date Project Holdco that is permitted by this Section 7.01 (other than clause (g) below)the direct or indirect parent of such Subsidiary;
(i) guaranties by Holdings of Indebtedness of a Guarantor or Borrower or guaranties by Borrower or a Guarantor of Indebtedness of Holdings or another Guarantor with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;
(j) obligations (contingent or otherwise) existing or arising under any Swap Contract; provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly managing or mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person or such Person’s direct or indirect Subsidiary, and not for purposes of speculation or taking a “market view,” 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; provided, further, that Permitted Call Transactions shall be permitted;
(k) letters of credit, as long as cash collateral has been provided or back-to-back Letters of Credit have been issued hereunder in respect of Capital Lease Obligations and purchase money obligations for tangible property, such letters of credit;
(iil) Indebtedness represented by obligations in respect of sale and leaseback transactions permitted by Section 7.13 and capitalized leases, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement or lease of property (iii) other secured Indebtedness (including secured Indebtedness incurred real or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(dpersonal), 7.02(e) plant or 7.02(k);
(e) renewalsequipment used or useful in the business of such Person, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in each case in an aggregate principal amount not greater than to exceed the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing purchase price or refunding cost of such Indebtedness)property so acquired or designed, and is on terms that in the aggregate are not materially less favorable to the Borrower constructed, installed, improved or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedleased;
(fm) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower incurrence by Holdings or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; providedof Indebtedness arising from the honoring by a bank or other financial institution of a check, further that, draft or similar instrument inadvertently drawn against insufficient funds in the case ordinary course of business, so long as such Indebtedness described is covered within five (5) Business Days;
(n) unsecured Permitted Exchangeable Bond Indebtedness of Holdings;
(o) unsecured guaranties by Holdings of Permitted Convertible Bond Indebtedness;
(p) Permitted Convertible Bond Indebtedness Shareholder Loans borrowed by Holdings;
(q) Indebtedness under the Senior Notes Documents (and guaranties thereof by the Credit Parties pursuant to the Senior Notes Documents) in clauses an aggregate principal amount not to exceed $800,000,000;
(i), r) other Indebtedness in an aggregate amount not to exceed $50,000,000 at any time outstanding;
(ii), s) other Indebtedness of Holdings and Borrower; provided that the Leverage Ratio as of the last day of the most recently ended Fiscal Quarter for which financial statements are available calculated on a pro forma basis giving effect to the incurrence of such Indebtedness shall not exceed 4.50:1.00;
(iiit) Non-Recourse Project Indebtedness of the Acquired Business outstanding on the Closing Date and not required to be paid pursuant to Section 3.1 hereof;
(ivu) above, the Investment factoring of accounts receivable in the intercompany loan ordinary course of business in an aggregate amount not to exceed $40.0 million;
(v) Indebtedness representing deferred compensation to employees of Holdings or any of its Subsidiaries in the ordinary course of business; and
(w) Indebtedness consisting of the financing, by the lender thereof is permitted under Section 7.03;applicable insurer, of insurance premiums in the ordinary course of business.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (TerraForm Power, Inc.)
Indebtedness. The Borrower shall notNo Credit Party shall, and no Credit Party shall not permit or cause any of its Subsidiaries to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness Indebtedness, except for the following:following (collectively, "Permitted Indebtedness"):
(a) Indebtedness under the Loan Documents;
(b) any Indebtedness outstanding on the date hereof and listed of Borrower set forth on Schedule 7.017.2;
(c) Guaranty Indebtedness not to exceed $250,000 in the aggregate at any time outstanding consisting of Capitalized Lease Obligations incurred and Indebtedness secured by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below)purchase money Liens;
(id) Indebtedness incurred pursuant to interest rate swaps or hedging transactions with a counterparty and on terms and conditions satisfactory to Agent in respect of Capital Lease Obligations and purchase money obligations for tangible property, its Permitted Discretion;
(iie) intercompany Indebtedness in respect of sale and leaseback transactions permitted arising from loans made by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and to its Subsidiaries to fund working capital requirements of such Subsidiaries in connection with a Permitted Acquisition)the ordinary course of business; provided, however, that upon the aggregate principal amount request of all Agent at any time, such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes having terms reasonably satisfactory to Agent, the sole originally executed counterparts of which shall be subject pledged and delivered to a first priority Lien pursuant to Agent, for the Collateral Agreement benefit of Agent and lenders, as security for the Obligations; and
(if the payee is a Loan Party that is a party to the Collateral Agreement), (yf) all such any Indebtedness (other than "Refinancing Indebtedness") incurred in connection with the extension, renewal, substitution, refinancing or replacement of any Indebtedness described referred to in clauses (b) and (c) above; provided that (i)) the principal amount of such Refinancing Indebtedness does not exceed the aggregate principal amount of, plus accrued interest on, and any prepayment premiums or yield maintenance amounts in respect of the prepayment of, the Indebtedness being extended, renewed, substituted, refinanced or replaced, plus the reasonable amount of fees, underwriting discount, premiums and all other costs and expenses reasonably incurred in connection therewith, (ii) such Refinancing Indebtedness matures at least 95 days after the maturity date of the Indebtedness being extended, renewed, substituted, refinanced or replaced, and (iii) and (iv) of this clause (f)) shall be Subordinated Debt andsuch Refinancing Indebtedness contains terms which, in the case of Indebtedness described in clause (v) onlytaken as a whole, shall are not permit any cash payments of any kind prior less favorable to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty Credit Parties than the terms of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower being extended, renewed, substituted, refinanced or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03replaced;
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Trover Solutions Inc)
Indebtedness. The Borrower Company shall not, and nor shall not it permit any of its Subsidiaries Subsidiary to, directly or indirectly createissue, incur, assume assume, create or otherwise become or remain directly or indirectly liable with respect to have outstanding any Indebtedness except for the following:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition)Indebtedness; provided, however, that the aggregate principal foregoing shall not restrict nor operate to prevent:
(i) Indebtedness in favor of Purchasers under this Agreement and the Other Agreements; (ii) obligations of the Company arising out of Interest Rate Agreements and Currency Agreements (which constitute Hedge Agreements) entered into with financial institutions in the ordinary course of business; (iii) endorsement of items for deposit or collection of commercial paper received in the ordinary course of business; (iv) Indebtedness from time to time owing by any Subsidiary to the Company or owing by the Company to any Subsidiary in the ordinary course of business; (vi) Indebtedness listed on Schedule 7.1 hereof; (vii) Indebtedness pursuant to a revolving line of credit to finance working capital needs (if obtained by the Company) on terms reasonably satisfactory to Purchasers in an amount not to exceed $5,000,000 and (viii) purchase money Indebtedness, Capitalized Lease Obligations, Indebtedness subordinated to the Senior Notes and unsecured Indebtedness of all such Indebtedness the Company and its Subsidiaries not otherwise permitted by this subsection (d) section in an amount not to exceed $10,000,000 in the aggregate at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d(collectively, "Permitted Indebtedness"), 7.02(e) or 7.02(k);; and
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); providedany extension, however, that any such renewal, extensionrefinancing, refunding, or replacement (each a "refinancing") of any Permitted Indebtedness on such terms and conditions as are, on the whole, not materially more onerous to the Company than the terms and conditions of such Permitted Indebtedness on the date of such refinancing or refunding is in an aggregate principal amount not greater than (including that the principal amount of such refinancing Indebtedness does not exceed the principal amount of, plus the amount of accrued and unpaid interest on, the Indebtedness so refinanced (plus the amount of reasonable fees, premium and fees and expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtednesstherewith), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;.
Appears in 1 contract
Sources: Senior Note and Warrant Purchase Agreement (Cardiac Science Inc)
Indebtedness. The Borrower shall not, and shall not permit Neither the Company nor any of its Subsidiaries to, shall directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, evidenced by the Notes;
(ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is Bank Secured Obligations in an aggregate principal amount not greater than the principal amount of (plus reasonable feesto exceed [$__________] at any time and Permitted Refinancing Indebtedness in respect thereof, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable subject to the Borrower or such Subsidiary, including as to weighted average maturity, than terms of the Indebtedness being renewed, extended, refinanced or refundedSubordination Agreement set forth in clause (a) of the definition thereof;
(fiii) Permitted Existing Indebtedness and Permitted Refinancing Indebtedness in respect thereof;
(iv) Indebtedness in respect of obligations secured by Customary Permitted Liens;
(v) Indebtedness constituting Contingent Obligations permitted by section 10.3(e);
(vi) subject to the terms of section 10.3(q), Indebtedness arising from intercompany loans and advances (i) from the Borrower to any Guarantor; (iia) from any Subsidiary of the Borrower to the Borrower Company or any Guarantor; wholly-owned Subsidiary or (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (ivb) from the Borrower or any Guarantor Company to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrowerwholly-owned Subsidiary; provided, however, that (x) all such Indebtedness shall subordinated to the Notes on subordination terms set forth in Exhibit 10.3;
(other than vii) Indebtedness in respect of Hedging Obligations permitted under Section 7.3(p) of the Bank Credit Agreement as in effect on the Closing Date or under any Permitted Refinancing Indebtedness described to the extent permitted under the Subordination Agreement set forth in clause (iii) or (va) of this clause the definition thereof;
(f)viii) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such secured or unsecured purchase money Indebtedness (other than including Capitalized Leases) incurred by the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower Company or to any of its Subsidiaries for whose benefit after the Closing Date to finance the acquisition of fixed assets, if (a) at the time of such payment incurrence, no Default or Event of Default has occurred and is made; providedcontinuing or would result from such incurrence, further that(b) such Indebtedness has a scheduled maturity and is not due on demand, (c) such Indebtedness does not exceed the lower of the fair market value or the cost of the applicable fixed assets on the date acquired, (d) such Indebtedness does not exceed [$__________] in the case of Indebtedness described in clauses (i)aggregate principal amount outstanding at any time, (ii), (iii) and (ive) above, the Investment in the intercompany loan by the lender thereof any Lien securing such Indebtedness is permitted under Section 7.03section 10.3(c) (such Indebtedness being referred to herein as "Permitted Purchase Money Indebtedness");
(ix) Indebtedness with respect to surety, appeal and performance bonds obtained by the Company or any of its Subsidiaries in the ordinary course of business;
(x) Indebtedness incurred by the Company or any of its Subsidiaries (whether assumed by the Company or such Subsidiary or issued to the seller) in any Permitted Acquisition as part of the consideration therefor, provided that such Indebtedness is unsecured and is subordinated to the Notes on terms reasonably acceptable to the Required Holders;
(xi) Indebtedness evidenced by the Seller Notes and Permitted Refinancing Indebtedness in connection therewith;
(xii) guaranties by the Company of Indebtedness permitted to be incurred by any Subsidiary;
(xiii) additional unsecured Indebtedness incurred by the Company or any of its Subsidiaries not otherwise permitted under this section 10.3; provided that at the time of and immediately after giving pro forma effect to the incurrence of such Indebtedness, the [Leverage Ratio], [Senior Leverage Ratio] and/or [Fixed Charge Coverage Ratio] would not exceed [__] to 1, ____ to 1 or ___ to 1, respectively, which [Leverage Ratio][Senior Leverage Ratio] and/or [Fixed Charge Coverage Ratio], as the case may be, shall be calculated as of the last day of the immediately preceding fiscal quarter; and
(xiv) additional unsecured Indebtedness in an aggregate amount at any time outstanding not exceeding [$_______].
Appears in 1 contract
Sources: Mezzanine Note Securities Purchase Agreement (Alion Science & Technology Corp)
Indebtedness. The Neither the Borrower shall not, and shall not permit nor any of its Subsidiaries to, shall directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingIndebtedness, except:
(ai) Indebtedness under the Loan DocumentsObligations;
(bii) Permitted Existing Indebtedness outstanding on the date hereof and listed on Schedule 7.01Permitted Refinancing Indebtedness;
(iii) unsecured subordinated indebtedness incurred by the Borrower (including in connection with any Permitted Acquisition) that (a) does not have a stated maturity before the Termination Date in effect as of the date such indebtedness is incurred, (b) has terms that are no more restrictive than the terms of this Agreement and the other Loan Documents, and (c) Guaranty is subordinated to the Obligations on terms at least as favorable to the Lenders as the terms set forth on SCHEDULE 7.3 attached hereto, with such changes thereto as may be agreed to by the Agent (such Indebtedness being referred to herein as "PERMITTED SUBORDINATED INDEBTEDNESS");
(iv) Indebtedness in respect of obligations secured by Customary Permitted Liens;
(v) Indebtedness constituting Contingent Obligations in respect of Indebtedness otherwise permitted hereunder;
(vi) Indebtedness arising from intercompany loans from the Borrower to any Controlled Subsidiary or from any Subsidiary to the Borrower or any Controlled Subsidiary; PROVIDED that in each case such Indebtedness is subordinated upon terms satisfactory to the Agent to the obligations of the Borrower and its Subsidiaries with respect to the Obligations;
(vii) guaranties by the Borrower of Indebtedness permitted to be incurred by any Subsidiary;
(viii) Indebtedness in respect of Hedging Obligations permitted under SECTION 7.3(Q);
(ix) secured or unsecured purchase money Indebtedness (including Capitalized Leases) incurred by the Borrower or any Guarantor in respect of Indebtedness its Subsidiaries after the Closing Date (including, as a result of the Borrower or assumption of any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) such Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided) to finance the acquisition of fixed assets, howeverif (1) at the time of such incurrence, that the aggregate principal amount of all no Default or Unmatured Default has occurred and is continuing or would result from such incurrence, (2) such Indebtedness permitted by this subsection has a scheduled maturity and is not due on demand, (d3) at any one time outstanding shall such Indebtedness does not exceed the lower of the fair market value or the cost of the applicable fixed assets on the date acquired, (4) such Indebtedness does not exceed $200,000,000 5,000,000 in the aggregate outstanding at any time, and the Liens (5) any Lien securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(eis permitted under SECTION 7.3(C) or 7.02(k(such Indebtedness being referred to herein as "PERMITTED PURCHASE MONEY INDEBTEDNESS");
(ex) renewalsIndebtedness with respect to surety, extensionsappeal and performance bonds obtained by the Borrower or any of its Subsidiaries in the ordinary course of business;
(xi) Indebtedness arising under the Guaranty;
(xii) Indebtedness of a Subsidiary consisting of tax-advantaged industrial revenue bond, refinancings and refundings of Indebtedness permitted by clause industrial development bond or other similar financings assumed in connection with (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount but not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedanticipation of) a Permitted Acquisition;
(fxiii) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than working capital financing including, without limitation, Permitted Floor Plan Financing) existing at a New Subsidiary at the Indebtedness described time of the Permitted Acquisition thereof (but not incurred in clause connection or in anticipation of such Permitted Acquisition) the outstanding principal balance of which does not exceed ten percent (iii) or (v10%) of this clause the book value of the assets acquired as a result of such Permitted Acquisition; and
(f)xiv) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant Indebtedness relating to the Collateral Agreement purchase of manufactured homes for inventory through "floor plan" credit facilities in an amount as of the end of any fiscal quarter not to exceed twenty-five percent (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv25%) of Adjusted Revenues for the four quarter period then ended ("PERMITTED FLOOR PLAN FINANCING"); and
(xv) other Indebtedness in addition to that referred to elsewhere in this clause (f)SECTION 7.3(A) shall be Subordinated Debt and, incurred by the Borrower in an amount not to exceed $5,000,000 in the case of Indebtedness described in clause (v) only, shall not permit aggregate at any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;time outstanding.
Appears in 1 contract
Sources: Credit Agreement (Homeusa Inc)
Indebtedness. The Borrower shall will not, and shall will not permit any of its Subsidiaries to, directly or indirectly contract, create, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the following:Indebtedness, except;
(a) Indebtedness under the Loan DocumentsObligations, Hedging Liability, and Funds Transfer Liability, Deposit Account Liability and Data Processing Obligations of the Borrower and its Subsidiaries;
(b) Indebtedness outstanding on owed pursuant to Hedge Agreements entered into in the date hereof ordinary course of business and listed on Schedule 7.01not for speculative purposes with Persons other than Lenders (or their Affiliates);
(c) Guaranty intercompany Indebtedness among the Borrower and its Subsidiaries to the extent permitted by Section 6.14;
(d) Indebtedness (including Capitalized Lease Obligations and other Indebtedness arising under Capital Leases) the proceeds of which are used to finance the acquisition, lease, construction, repair, replacement, expansion or improvement of fixed or capital assets or otherwise incurred in respect of capital expenditures, whether through the direct purchase of assets or the purchase of capital stock of any Person owning such assets; provided that the aggregate principal amount of Indebtedness outstanding under this paragraph (d) shall not exceed $10,000,000.00 at any time;
(e) Indebtedness of the Borrower and its Subsidiaries not otherwise permitted by this Section in an amount not to exceed $100,000,000.00 in the aggregate at any one time outstanding;
(f) Contingent Obligations incurred by the Borrower or (i) any Guarantor Subsidiary in respect of Indebtedness of the Borrower or any Guarantor other Subsidiary that is permitted by to be incurred under this Section 7.01 Agreement and (other than clause ii) the Borrower in respect of Indebtedness of any Subsidiary that is permitted to be incurred under this Agreement;
(g) below)Contingent Obligations incurred in the ordinary course of business in respect of obligations to suppliers, customers, franchisees, lessors, licensees or distribution partners;
(i) unsecured Indebtedness in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements and (ii) unsecured Indebtedness in respect of intercompany obligations of the Borrower or any Subsidiary in respect of accounts payable incurred in connection with goods sold or services rendered in the ordinary course of business and not in connection with the borrowing of money;
(i) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in respect each case, entered into in connection with the disposition of Capital Lease any business, assets or capital stock permitted hereunder, other than Contingent Obligations and incurred by any Person acquiring all or any portion of such business, assets or capital stock for the purpose of financing such acquisition;
(j) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase money obligations for tangible propertyprice or similar obligations, in each case, entered into in connection with Permitted Acquisitions or other investments permitted under Section 6.14;
(iik) Indebtedness in respect of sale performance bonds, bid bonds, appeal bonds, surety bonds, performance and leaseback transactions completion guarantees and similar obligations incurred in the ordinary course of business and not in connection with the borrowing of money or Hedge Agreements;
(l) Indebtedness of the Borrower or any Subsidiary consisting of (i) obligations to pay insurance premiums or (ii) take or pay obligations contained in supply agreements, in each case arising in the ordinary course of business and not in connection with the borrowing of money or Hedge Agreements;
(m) Indebtedness representing deferred compensation or similar arrangements to employees, consultants or independent contractors of the Borrower (or its direct or indirect parent) and its Subsidiaries incurred in the ordinary course of business or otherwise incurred in connection with the Transactions or any Permitted Acquisition or other investment permitted under Section 6.14;
(n) Indebtedness consisting of promissory notes issued to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of capital stock of the Borrower permitted by Section 7.13 6.15;
(o) Indebtedness in respect of Cash Management Services, netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements in each case incurred in the ordinary course of business;
(iiip) Capitalized Lease Obligations and other secured Indebtedness arising under Capital Leases to the extent permitted to be incurred pursuant to the Transition Services Agreement (including secured as defined in the Master Investment Agreement),
(q) Indebtedness of the Borrower and its Subsidiaries in existence on the Closing Date and set forth in all material respects on Schedule 6.11;
(r) Indebtedness incurred by the Borrower or assumed any Subsidiary constituting reimbursement obligations with respect to bankers’ acceptances and letters of credit issued in the ordinary course of business, including letters of credit in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation laws, unemployment insurance laws or similar legislation; provided, however, that upon the drawing of such bankers’ acceptances and letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(s) Indebtedness of the Borrower or any Subsidiary incurred to finance any Acquisition or investment permitted under Section 6.14 in an aggregate principal amount or liquidation preference equal to 100% of the net cash proceeds received by the Borrower and its Subsidiaries since immediately after the Closing Date from the issue or sale of equity interests of the Borrower or cash contributed to the capital of the Borrower (in each case, other than proceeds of sales of equity interests to, or contributions received from, the Borrower or any of its Subsidiaries and other than the Cure Amount);
(t) the incurrence by the Borrower or any Subsidiary of Indebtedness which serves to refund or refinance any Indebtedness permitted under clauses (d), (p), (q), (s) and (u) of this Section 6.11 or any Indebtedness issued to so refund, replace or refinance such Indebtedness, including, in each case, additional Indebtedness incurred to pay premiums (including tender premiums), defeasance costs and fees and expenses in connection with a Permitted Acquisition)therewith (collectively, the “Refinancing Indebtedness”) prior to its respective maturity; provided, however, that such Refinancing Indebtedness:
(A) has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred which is not less than the remaining Weighted Average Life to Maturity of the Indebtedness being refunded or refinanced,
(B) to the extent such Refinancing Indebtedness refinances Indebtedness subordinated or pari passu to the Obligations, such Refinancing Indebtedness is subordinated or pari passu to the Obligations at least to the same extent as the Indebtedness being refinanced or refunded, and
(C) shall not include Indebtedness of a non-Loan Party that refinances Indebtedness of a Loan Party;
(u) Indebtedness of (x) the Borrower or a Subsidiary incurred to finance an acquisition or (y) Persons that are acquired by the Borrower or any Subsidiary or merged into the Borrower or a Subsidiary in accordance with the terms of this Agreement or that is assumed by the Borrower or any Subsidiary in connection with such acquisition so long as:
(A) no Default exists or shall result therefrom;
(B) any Indebtedness incurred in reliance on clause (x) of this Section 6.11(u) shall not be secured by a Lien and shall not mature or require any payment of principal, in each case, prior to the date which is 91 days after the maturity date of the Term A and B Loans as set forth in Sections 2.7(a) and (b); and
(C) any Indebtedness incurred in reliance on clause (y) of this Section 6.11(u) and either (1) the aggregate principal amount of all such Indebtedness permitted that is secured by this subsection (d) at any one time outstanding Lien, together with all Refinancing Indebtedness in respect thereof, shall not exceed $200,000,000 and 100,000,000.00 or (2) after giving Pro Forma Effect to such acquisition or merger, the Liens securing Leverage Ratio is less than or equal to the Leverage Ratio immediately prior to such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) acquisition or 7.02(k)merger;
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(fv) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit supported by a Letter of Credit in a principal amount not to exceed the face amount of such payment is made; providedLetter of Credit;
(w) all customary premiums (if any), further thatinterest (including post-petition interest), in the case of Indebtedness fees, expenses, charges and additional or contingent interest on obligations described in clauses (i), (ii), (iiieach of Sections 6.11(a) and (ivthrough 6.11(v) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;.
Appears in 1 contract
Sources: Loan Agreement (Fifth Third Bancorp)
Indebtedness. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly createCreate, incur, assume assume, permit, guarantee or otherwise become or remain remain, directly or indirectly indirectly, liable with respect to any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under pursuant to this Agreement and the other Loan DocumentsDocuments together with Indebtedness to issuers of letters of credit that are the subject of L/C Guarantees;
(b) Indebtedness outstanding on Capital Lease Obligations, purchase money or mortgage financing to fund Capital Expenditures, to the date hereof and listed on Schedule 7.01extent permitted under Section 7.20;
(c) Guaranty Obligations purchase money financing in respect of buses and other motor vehicles that are not Vehicles;
(d) Existing Indebtedness;
(e) Indebtedness incurred in respect of Hedging Obligations; Schedule 1, Pg. ▇▇ ▇▇
(▇) ▇▇▇ Laid▇▇▇ ▇▇▇de Payables;
(g) intercompany Indebtedness between or among Borrower and any of its Wholly Owned Restricted Subsidiaries; provided that any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Borrower or a Wholly Owned Restricted Subsidiary of Borrower, or any sale or other transfer of any such Indebtedness to a Person that is neither Borrower nor a Wholly Owned Restricted Subsidiary of Borrower, shall be deemed to constitute an incurrence of such Indebtedness by Borrower or such Restricted Subsidiary, as the case may be;
(h) the incurrence by Borrower or any Guarantor of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in respect exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund Indebtedness of the Borrower or any Guarantor that is was permitted by this Section 7.01 (other than clause (g) below);Agreement to be incurred; and
(i) Indebtedness in respect as a result of Capital Lease Obligations and purchase money guarantee obligations for tangible property, permitted under Section 7.6.
(iij) additional Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Restricted Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including so long as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of additional Indebtedness described in clause incurred by Borrower, the Consolidated Interest Coverage Ratio for Borrower's most recently ended four fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred would have been at least 2.0 to 1, determined on a pro forma basis (v) onlyincluding a pro forma application of the net proceeds therefrom), shall not permit any cash payments as if the additional Indebtedness had been incurred at the beginning of any kind prior to the Maturity Date, such four-quarter period and (zii) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of additional Indebtedness described in clauses incurred by any Restricted Subsidiary, the Consolidated Interest Coverage Ratio for Borrower's and such Restricted Subsidiary's (ion a consolidated basis with its Subsidiaries which are Restricted Subsidiaries) most recently ended four fiscal quarters for which internal financial statements are available immediately preceding the date or which such additional Indebtedness is incurred would have been at least 2.0 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), (ii), (iii) and (iv) above, as of the Investment in additional Indebtedness has been incurred at the intercompany loan by the lender thereof is permitted under Section 7.03;beginning of such four-quarter period.
Appears in 1 contract
Sources: Loan and Security Agreement (Vermont Transit Co Inc)
Indebtedness. The Borrower shall notIncur, and shall not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness the Obligations under this Agreement and the other Loan Documents;
(b) Indebtedness outstanding of any Loan Party existing at the Closing Date which is reflected in Schedule 7.01(b) hereto and all renewals and extensions thereof on substantially the date hereof and listed on Schedule 7.01same terms;
(c) Guaranty Obligations incurred by Indebtedness created under leases which, in accordance with GAAP, have been recorded and/or should have been recorded on the Borrower or any Guarantor in respect of Indebtedness books of the applicable Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition)as capital leases; provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e5,000,000;
(d) or 7.02(k)unsecured Subordinated Indebtedness;
(e) renewals, extensions, refinancings and refundings accounts payable (for the deferred purchase price of Indebtedness permitted by clause (bproperty or services) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium which are from time to time incurred in connection with the renewal, extension, refinancing or refunding ordinary course of such Indebtedness), business and is on terms that in the aggregate which are not materially less favorable to in excess of ninety (90) days past the Borrower invoice or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedbilling date;
(f) Indebtedness arising from intercompany loans (i) from Permitted Real Estate Debt and Guarantees by the Borrower to or any Guarantor; Loan Party that is the tenant of the applicable real property of such Permitted Real Estate Debt;
(iig) from Indebtedness of any Subsidiary of the Borrower in existence (but not incurred or created in connection with an acquisition) on the date on which such Subsidiary is acquired by any Loan Party pursuant to a Permitted Acquisition, provided (i) neither the Borrower nor any of its other Subsidiaries has any obligation with respect to such Indebtedness, (ii) none of the properties of the Borrower or any Guarantor; of its other Subsidiaries is bound with respect to such Indebtedness, (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; in full compliance with Section 7.11 hereof before and after such acquisition and (iv) from if such Indebtedness is secured by Inventory of such Subsidiary, such Indebtedness is Permitted Floorplan Silo Indebtedness;
(h) Indebtedness secured by Liens upon any property hereafter acquired by the Borrower or any Guarantor of its Subsidiaries to secure Indebtedness in existence on the date of a Permitted Acquisition (but not incurred or created in connection with such acquisition) at a time when the Borrower is in full compliance with Section 7.11 hereof before and after such Permitted Acquisition, which Indebtedness is assumed by such Person simultaneously with such acquisition, which Liens extend only to such property so acquired (and not to any Subsidiary of after-acquired property) and with respect to which Indebtedness neither the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or nor any Affiliate of MII its Subsidiaries (other than the Borrower acquiring Person) has any obligation, and provided that if such Indebtedness is secured by Inventory of such Subsidiary, such Indebtedness is Permitted Floorplan Silo Indebtedness;
(i) contingent obligations (including Guarantees) of any Indebtedness permitted hereunder;
(j) Indebtedness in respect of obligations (contingent or a Subsidiary otherwise) of the Borrower) to the Borrower or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks or managing costs 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 not 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;
(k) purchase options in favor of a Manufacturer in respect of a dealer franchise;
(l) Indebtedness that refinances any existing Indebtedness of any Loan Party, so long as (i) such refinancing does not in any material respect increase the principal amount thereof or expand the property subject to any Lien (unless otherwise permitted under this Agreement), and (ii) if the Indebtedness being refinanced is Subordinated Indebtedness, then such refinancing Indebtedness must also be Subordinated Indebtedness;
(m) Indebtedness of any Loan Party secured by Liens upon property other than the Collateral, which Liens extend only to such property, with respect to which Indebtedness none of the Subsidiaries other than the owner of such encumbered asset has any obligation, provided the aggregate amount of all such Indebtedness is less than $25,000,000 outstanding at any one time;
(n) unsecured Indebtedness of the Borrower, not guaranteed by any Subsidiary, in an aggregate amount not to exceed $30,000,000 outstanding at any time; provided that not more than $15,000,000 of such aggregate amount may be cross-guaranteed by Subsidiaries of the Borrower; providedand
(o) Permitted Floorplan Silo Indebtedness, however, provided that (x) all each Floorplan Silo Lender holding such Indebtedness (other than or in the Indebtedness described in clause (iiicase of a Used Motor Vehicle Facility, the Used Motor Vehicle Facility Agent) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Intercreditor Agreement;
(p) Indebtedness consisting of Guarantees by the Borrower or any of its Subsidiaries in favor of any Person of retail installment contracts or other retail payment obligations in respect of Motor Vehicles sold to a customer; provided that the sum of (i) the aggregate face amount of such guaranteed retail installment contracts and other retail payment obligations described in this Section 7.01(p), plus (yii) all such Indebtedness the aggregate amount of Investments (other than the Indebtedness described in clauses (i), (iiion a gross basis excluding any reserves) and (iv) of this clause (f)permitted under Section 7.05(j) shall be Subordinated Debt andnot exceed $25,000,000 at any time;
(q) Obligations in respect of surety or other bonds or similar instruments entered into in the ordinary course of business, in the case an aggregate amount not to exceed $5,000,000 of Indebtedness described in clause obligations outstanding at any time; and
(vr) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Unsecured Indebtedness owed by such any Subsidiary Guarantor to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;another Subsidiary Guarantor.
Appears in 1 contract
Indebtedness. (a) The Borrower shall not, and nor shall not the Borrower permit any of its Subsidiaries Subsidiary to, directly or indirectly indirectly:
(i) create, incur, assume issue, assume, guarantee or otherwise become or remain directly or indirectly liable liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness except (including Acquired Indebtedness), or
(ii) issue any shares of Disqualified Stock or permit any Subsidiary to issue any shares of Disqualified Stock or Preferred Stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and any Subsidiary may incur Indebtedness (including Acquired Indebtedness), issue shares of Disqualified Stock and issue shares of Preferred Stock, in each case, if (any Indebtedness, Disqualified Stock or Preferred Stock incurred or issued pursuant to following clauses (A), (B) and (C), “Permitted Ratio Debt”);
(A) with respect to Indebtedness secured on a pari passu basis with the First Lien Obligations, the First Lien Net Leverage Ratio for the followingTest Period preceding the date on which such additional Indebtedness is incurred (without netting any cash received from the incurrence of such Indebtedness proposed to be incurred) would be no greater than 2.00 to 1.00;
(B) with respect to Indebtedness secured by ▇▇▇▇▇ on a basis that is junior in priority to the First Lien Obligations, the Junior Secured Condition is satisfied for the Test Period preceding the date on which such additional Indebtedness is incurred (without netting any cash received from the incurrence of such Indebtedness proposed to be incurred); or
(C) with respect to unsecured Indebtedness, any other Indebtedness not included in clause (A) or (B) above, or any Disqualified Stock or Preferred Stock, either (I) the Interest Coverage Ratio for the Test Period preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or Preferred Stock is issued would be at least 2.00 to 1.00 or (II) the Total Net Leverage Ratio for the Test Period preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or Preferred Stock is issued (without netting any cash received from the incurrence of such Indebtedness proposed to be incurred) would be no greater than 3.50 to 1.00, in each case, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock or Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of such Test Period; provided further that (A) Subsidiaries of the Borrower that are not Guarantors may not incur Indebtedness or issue Disqualified Stock or Preferred Stock under this Section 7.02(a) if, after giving pro forma effect to such incurrence or issuance (including a pro forma application of the net proceeds therefrom), the aggregate principal amount of Indebtedness, liquidation preference of Disqualified Stock and amount of Preferred Stock of such Subsidiaries incurred or issued pursuant to this Section 7.02(a), together with any principal amounts incurred or issued by such Subsidiaries under Section 7.02(b)(14)(a) and Section 7.02(b)(23) and Refinancing Indebtedness in respect of any of the foregoing (excluding any Incremental Amounts), in each case then outstanding, would exceed (as of the date such Indebtedness, Disqualified Stock or Preferred Stock is issued, incurred or otherwise obtained) the greater of (I) $100.0 million and (II) 50% of Consolidated EBITDA of the Borrower and the Subsidiaries for the most recently ended Test Period (calculated on a pro forma basis), (B) Permitted Ratio Debt (x) shall not mature earlier than the Latest Maturity Date as in effect on the date of incurrence.
(b) The provisions of Section 7.02
(a) will not apply to:
(a1) Indebtedness under the Loan DocumentsDocuments (including any Incremental Loans, Other Loans, Extended Term Loans and Replacement Loans);
(b2) Indebtedness outstanding on the date hereof incurrence by the Borrower of the Senior Notes and listed on Schedule 7.01the Guarantee thereof by any Guarantor;
(c3) Guaranty the incurrence of Indebtedness by the Borrower and any of its Subsidiaries in existence on the Closing Date (excluding Indebtedness described in the preceding clauses (1) and (2) and Indebtedness under the Existing Credit Agreements); provided that any such item of Indebtedness with an aggregate outstanding principal amount on the Closing Date in excess of $5.0 million shall be set forth on Schedule 7.02;
(4) the incurrence of Attributable Indebtedness and Indebtedness (including Capitalized Lease Obligations and Purchase Money Obligations) and Disqualified Stock incurred or issued by the Borrower or any of its Subsidiaries and Preferred Stock issued by any Subsidiary of the Borrower, to finance the purchase, lease, expansion, construction, installation, replacement, repair or improvement of property (real or personal), equipment or other assets, including assets that are used or useful in a Similar Business, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets in an aggregate principal amount, together with any Refinancing Indebtedness in respect thereof (excluding any Incremental Amounts) and all other Indebtedness, Disqualified Stock or Preferred Stock incurred or issued and outstanding under this clause (4), at such time not to exceed (as of the date such Indebtedness, Disqualified Stock or Preferred Stock is issued, incurred or otherwise obtained) the greater of (I) $15.0 million and (II) 10% of Consolidated EBITDA of the Borrower and its Subsidiaries for the most recently ended Test Period (calculated on a pro forma basis);
(5) Indebtedness incurred by the Borrower or any Guarantor of its Subsidiaries (a) constituting reimbursement obligations with respect to letters of credit, bank guarantees, banker’s acceptances, warehouse receipts, or similar instruments issued or entered into, or relating to obligations or liabilities incurred, in the ordinary course of business or consistent with industry practice, including in respect of workers’ compensation claims, performance, completion or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance, unemployment insurance or other social security legislation or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims, performance, completion or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or (b) as an account party in respect of letters of credit, bank guarantees or similar instruments in favor of suppliers, trade creditors or other Persons issued or incurred in the ordinary course of business or consistent with industry practice;
(6) the incurrence of Indebtedness arising from agreements of the Borrower or any Guarantor of its Subsidiaries providing for indemnification, adjustment of purchase price, earnouts or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(7) the incurrence of Indebtedness by the Borrower and owing to any of its Subsidiaries or the issuance of Disqualified Stock of the Borrower to any of its Subsidiaries; provided that any such Indebtedness for borrowed money is expressly subordinated in right of payment to the Loans to the extent permitted by applicable law and it does not result in adverse tax consequences; provided further that any subsequent issuance or transfer of any Capital Stock or any other event that results in any such Subsidiary ceasing to be a Subsidiary of the Borrower or any other subsequent transfer of any such Indebtedness or Disqualified Stock (except to the Borrower or any of its Subsidiaries or any pledge of such Indebtedness or Disqualified Stock constituting a Permitted Lien) will be deemed, in each case, to be an incurrence of such Indebtedness (to the extent such Indebtedness is then outstanding) or issuance of such Disqualified Stock (to the extent such Disqualified Stock is then outstanding) not permitted by this Section 7.01 (other than clause (g) below7);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by 8) the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings incurrence of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantorof its Subsidiaries to the extent permitted by Section 7.05; (iii) from provided that any such Indebtedness for borrowed money owing to a Subsidiary of the Borrower that is not a Loan Party Guarantor is expressly subordinated in right of payment to the Guaranty of the Loans of such Subsidiary to the extent permitted by applicable law and it does not result in adverse tax consequences; provided further that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Subsidiary ceasing to be a Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor such subsequent transfer of any such Indebtedness (except to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the BorrowerBorrower or any pledge of such Indebtedness constituting a Permitted Lien) will be deemed, in each case, to be an incurrence of such Indebtedness (to the extent such Indebtedness is then outstanding) not permitted by this clause (8);
(9) the issuance of shares of Preferred Stock or Disqualified Stock of a Subsidiary of the Borrower to the Borrower or any another Subsidiary of the Borrower; providedprovided that any subsequent issuance or transfer of any Capital Stock or any other event that results in any such Subsidiary that holds such Preferred Stock or Disqualified Stock ceasing to be a Subsidiary of the Borrower or any other subsequent transfer of any such shares of Preferred Stock or Disqualified Stock (except to the Borrower or another Subsidiary of the Borrower or any pledge of such Preferred Stock or Disqualified Stock constituting a Permitted Lien) will be deemed, howeverin each case, that to be an issuance of such shares of Preferred Stock or Disqualified Stock (to the extent such Preferred Stock or Disqualified Stock is then outstanding) not permitted by this clause (9);
(10) the incurrence of Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(11) the incurrence of obligations in respect of self-insurance and obligations in respect of performance, bid, appeal and surety bonds and performance, banker’s acceptance facilities and completion guarantees and similar obligations provided by the Borrower or any of its Subsidiaries or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent with industry practice, including those incurred to secure health, safety and environmental obligations;
(12) the incurrence of:
(a) [reserved]; and
(b) Indebtedness or issuance of Disqualified Stock of the Borrower and the incurrence or issuance of Indebtedness, Disqualified Stock or Preferred Stock of any Subsidiary of the Borrower in an aggregate principal amount or liquidation preference that, when aggregated with the principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding and incurred or issued, as applicable, pursuant to this clause (12)(b), together with any Refinancing Indebtedness in respect thereof (excluding any Incremental Amounts), does not exceed (as of the date such Indebtedness, Disqualified Stock or Preferred Stock is issued, incurred or otherwise obtained) (i) the greater of (I) $25.0 million and (II) 15% of Consolidated EBITDA of the Borrower and its Subsidiaries for the most recently ended Test Period (calculated on a pro forma basis) plus, without duplication, (ii) in the event of any extension, replacement, refinancing, renewal or defeasance of any such Indebtedness, Disqualified Stock or Preferred Stock, an amount equal to (x) all such Indebtedness (other than any accrued and unpaid interest on the Indebtedness described in clause (iii) Indebtedness, any accrued and unpaid dividends on the Preferred Stock, and any accrued and unpaid dividends on the Disqualified Stock being so refinanced, extended, replaced, refunded, renewed or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), defeased plus (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by tender premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Subsidiary to Indebtedness, Disqualified Stock or Preferred Stock and any defeasance costs and any fees and expenses (including original issue discount, upfront fees or similar fees) incurred in connection with the Borrower issuance of such new Indebtedness, Disqualified Stock or to any Preferred Stock or the extension, replacement, refunding, refinancing, renewal or defeasance of its Subsidiaries for whose benefit such payment is made; providedIndebtedness, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03Disqualified Stock or Preferred Stock;
Appears in 1 contract
Sources: Credit Agreement (Superior Industries International Inc)
Indebtedness. The Borrower shall notnot incur, and shall not permit create, assume, become or be liable in any of its Subsidiaries manner with respect to, directly or indirectly createpermit to exist, incurany Indebtedness, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the following:except
(a) Indebtedness under the Loan DocumentsObligations;
(b) Indebtedness outstanding on arising in the ordinary course of the business of Borrower in connection with worker's compensation, unemployment insurance or other types of social security benefits in each case consistent with the current practices of Borrower as of the date hereof hereof; provided, that, such Indebtedness is secured only by liens on assets and listed on Schedule 7.01property of Borrower permitted by Section 9.8(f) hereof;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of Borrower to Simm▇▇▇ ▇▇▇sing after the Borrower or any Guarantor that is permitted date hereof pursuant to intercompany loans by this Section 7.01 (other than clause (g) below);
Simm▇▇▇ ▇▇ Borrower, provided, that, (i) the aggregate amount of such Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible propertyshall not exceed $5,000,000, (ii) Borrower shall provide Lender within thirty (30) days after the end of each month, a report as to the outstanding amount of such Indebtedness in respect as of sale and leaseback transactions permitted by Section 7.13 and the last day of the immediately preceding month, (iii) other secured such Indebtedness (including secured Indebtedness incurred or assumed by is subject to, and subordinate in right of payment to, the Borrower right of Lender to receive the prior indefeasible payment and its Subsidiaries satisfaction in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount full of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 of the Obligations on terms and the Liens securing conditions acceptable to Lender, and all liens and security interests to secure such Indebtedness shall be within subject and subordinate to the limitations set forth liens and security interests of Lender on terms and conditions acceptable to Lender, (iv) Lender shall have received, in Sections 7.02(d)form and substance satisfactory to Lender, 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings a subordination agreement providing for the terms of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is the subordination in an aggregate principal amount not greater than the principal amount right of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding payment of such Indebtedness), and is on terms that in the aggregate are not materially less favorable Indebtedness to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary prior indefeasible payment and satisfaction in full of all of the Borrower that is not a Loan Party Obligations, and the subordination by Simm▇▇▇ ▇▇ any liens and security interests to any other Subsidiary secure such Indebtedness to the liens and security interests of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or Lender, duly authorized, executed and delivered by Simm▇▇▇ ▇▇▇ Borrower, (v) prior Borrower shall not, directly or indirectly make, or be required to the Spinoffmake, from MII or and payments in respect of such Indebtedness so long as any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Obligations are outstanding and unpaid, except that Borrower or any Subsidiary may make payments in respect of such Indebtedness so long as each of the Borrower; providedfollowing conditions is satisfied as determined by Lender: (A) Lender shall have received not less than three (3) Business Days prior written notice of the intention of Borrower to make such prepayment, however(B) as of the date of any such payment, that the daily average of the Excess Availability of Borrower for the immediately preceding thirty (x30) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) consecutive days shall be evidenced by promissory notes not less than $2,000,000 and all as of the date of any such notes payment and after giving effect thereto, the Excess Availability of Borrower shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other not less than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date$2,000,000, and (zC) any payment by as of the date of any such Guarantor under any guaranty payment, and after giving effect thereto, no Event of the Obligations Default, or act, conditions or event which with notice or passage of time or both would constitute an Event of Default, shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower exist or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i)have occurred, (ii)vi) Borrower shall not directly or indirectly, (iiiA) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;amend,
Appears in 1 contract
Indebtedness. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed Closing Date set forth on Schedule 7.017.03;
(c) Guaranty intercompany Indebtedness permitted under Section 7.02; provided that in the case of Indebtedness owing by a Loan Party to a Restricted Subsidiary that is not a Loan Party such Indebtedness shall be unsecured and be subordinated prior to the Obligations incurred in a manner and to an extent reasonably acceptable to the Administrative Agent;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the Borrower or any Guarantor ordinary course of business, and not for purposes of speculation;
(e) purchase money Indebtedness (including obligations in respect of Indebtedness capital leases and Synthetic Lease Obligations) incurred to finance all or any part of the Borrower purchase price or cost of design, construction, installation or improvement of property, plant or equipment used in the business of the Loan Parties or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations the Restricted Subsidiaries and purchase money obligations for tangible propertyrenewals, (ii) Indebtedness in respect of sale refinancings and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); providedextensions thereof, however, provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed the greater of (x) $300,000,000 and (y) 6% of Consolidated Net Tangible Assets as of such date of incurrence;
(f) the Senior Notes, the Senior Exchange Notes, and the New Gold Notes, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (f), not to exceed, as of any date of incurrence, the principal amount (or accreted value, if applicable) of the Indebtedness renewed, refunded, refinanced, replaced, defeased or discharged;
(g) to the extent constituting Indebtedness, obligations in respect of Cash Management Agreements;
(h) to the extent constituting Indebtedness, obligations in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance, self-insurance obligations, bankers’ acceptances, performance, bid, surety, appeal, reclamation, remediation and similar bonds and completion guarantees (not for borrowed money) provided in the ordinary course of business;
(i) to the extent constituting Indebtedness, obligations arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five (5) Business Days;
(j) Indebtedness of any Person incurred and outstanding on or prior to the date on which such Person became a Restricted Subsidiary or was acquired by, or merged or amalgamated into or arranged or consolidated with, the Borrower or any of its Restricted Subsidiaries (other than Indebtedness incurred in contemplation of, or in connection with, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary of or was otherwise acquired by the Borrower); provided that (i) no Event of Default shall have occurred and be continuing or would result from such Indebtedness and (ii) the Loan Parties are in compliance with the financial covenants set forth in Section 7.11 recomputed as of the end of the period of the four fiscal quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 6.01(a) or (b) after giving effect to such Indebtedness on a Pro Forma Basis;
(k) to the extent constituting Indebtedness, obligations consisting of unpaid insurance premiums owed to any Person providing property, casualty, liability or other insurance to any Loan Party or any other Restricted Subsidiary in any fiscal year, pursuant to reimbursement or indemnification obligations to such Person; provided that such Indebtedness is incurred only to defer the cost of such unpaid insurance premiums for such fiscal year and is outstanding only during such fiscal year;
(l) to the extent constituting Indebtedness, obligations outstanding under Deferred Revenue Financing Arrangements;
(m) other unsecured Indebtedness provided that (i) no Default shall exist or shall result therefrom and (ii) the Loan Parties are in compliance with the financial covenants set forth in Section 7.11 recomputed as of the end of the period of the four fiscal quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 6.01(a) or (b) after giving effect to the incurrence of such Indebtedness (and the use of proceeds thereof) on a Pro Forma Basis;
(n) [reserved];
(o) Guarantees with respect to Indebtedness permitted under this Section 7.03; provided that, if the Indebtedness being Guaranteed is subordinated to or pari passu with the Obligations, then the Guarantee must be subordinated or pari passu, as applicable to the same extent as the Indebtedness Guaranteed;
(p) Permitted Refinancing Indebtedness incurred in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall Agreement to be within the limitations set forth in Sections 7.02(dincurred under Section 7.03(b), 7.02(e(f), (j), (m) or 7.02(k(p);
(eq) renewalsadditional Indebtedness in an aggregate principal amount (or accreted value, extensionsas applicable) at any time outstanding not to exceed, refinancings as of any date of incurrence, the greater of (x) $300,000,000 and refundings (y) 6.0% of Consolidated Net Tangible Assets as of such date of incurrence; and
(r) Indebtedness permitted by clause incurred in connection with Prepaid Metals Transactions entered into between the Borrower or any Restricted Subsidiary and any Lender (bor Affiliate of a Lender) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;exceed $250,000,000.
Appears in 1 contract
Indebtedness. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the following:
(a) Indebtedness At any time after the date of this Agreement, neither the Company nor any Subsidiary of the Company shall incur or permit to exist any indebtedness, liability or obligation other than (i) trade payables or liabilities incurred or accrued in the ordinary course of business, (ii) capital lease obligations, (iii) indebtedness secured by purchase money security interests, (iv) indebtedness under the Loan Documents;Company's Banco Nacional Revolving Credit Facility as described on Schedule 3.1(i), (v) up to $350,000 to secure letters of credit issued by Comerica Bank (the "Letter of Credit Funds") or (vi) indebtedness, liabilities and obligations pursuant to the express terms of the existing debt obligations listed on Schedule 3.1(i) of this Agreement (which in the case of (ii) and (iii) above, will be senior to the Debentures only as to the underlying assets covered thereby) ((i)-(vi), the "Permitted Indebtedness").
(b) Indebtedness Simultaneously with the First Closing, the Company will pay off its indebtedness of $1,660,000 outstanding under the Comerica Bank Revolving Credit Facility and obtain customary payoff letters with respect to such indebtedness, indicating that such indebtedness has been paid in full and that the Comerica Bank Revolving Credit Facility has been terminated. Upon receipt of such payoff letters, the Company shall promptly file a UCC-3 Termination Statement with respect to the liens on the date hereof and listed on Schedule 7.01;Company's assets held by Comerica.
(c) Guaranty Obligations incurred The provisions of this Section 4.10 shall terminate and be of no further force or effect upon the conversion or indefeasible repayment in full of the Debentures and the indefeasible payment of all accrued interest thereon and any and all expenses or liabilities relating thereto that are required to be paid by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien Company pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;Transaction Documents.
Appears in 1 contract
Sources: Securities Purchase Agreement (Carrington Laboratories Inc /Tx/)
Indebtedness. The Borrower shall not, will not and shall will not permit any of its Subsidiaries to, directly or indirectly to create, incur, assume assume, guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingexcept:
(a) Indebtedness under the Loan DocumentsThe Obligations;
(b) Intercompany Indebtedness outstanding on among Borrower and its Subsidiaries; PROVIDED that the date hereof obligations of each obligor of such Indebtedness shall: (i) be subordinated in right of payment to the Obligations from and listed on Schedule 7.01after such time as any portion of the Obligations shall become due and payable (whether at stated maturity, by acceleration or otherwise); (ii) be evidenced by promissory notes, which shall have been pledged to Agent, for the benefit of Lenders, as security for the Obligations; and (iii) have such other terms and provisions as Agent may reasonably require;
(c) Guaranty Indebtedness arising as a result of Contingent Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below)under subsection 7.4;
(id) Indebtedness in respect of Capital Lease Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed Borrower evidenced by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)Seller Subordinated Note;
(e) Indebtedness existing on the Closing Date and set forth on Schedule 7.1 and all replacements, renewals, extensions, refinancings and refundings of Indebtedness permitted by clause extensions or amendments thereof so long as (bi) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable feessuch Indebtedness after such replacement, expenses and any premium incurred in connection with the renewal, extensionextension or amendment shall not exceed the principal amount of such Indebtedness which was outstanding immediately prior to such replacement, refinancing renewal, extension or refunding amendment, (ii) such Indebtedness shall not be secured by any assets other than assets securing such Indebtedness prior to such replacement, renewal, extension or amendment, and (iii) in the case of any replacement of such Indebtedness), the interest rate, amortization rate and is on other terms that in of the aggregate replacement Indebtedness are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than different from the Indebtedness being renewed, extended, refinanced or refundedreplaced;
(f) Indebtedness arising from intercompany loans not to exceed $200,000 in the aggregate at any time outstanding secured by purchase money Liens; and
(ig) from Indebtedness incurred with respect to Capital Leases not in excess of 500,000 in the Borrower to any Guarantor; aggregate during each Fiscal Year.
(iih) from any Subsidiary of the Borrower Indebtedness incurred with respect to the acquisition by Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any one of its Subsidiaries for whose benefit such payment is made; providedof certain real property located in Denver County, further thatColorado and generally described as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, in an initial principal amount not to exceed $750,000; PROVIDED that Agent and Requisite Lenders have given prior written approval of the case terms and conditions of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;such Indebtedness.
Appears in 1 contract
Indebtedness. The Borrower shall Holdings will not, and shall will not permit any of its Subsidiaries to, directly or indirectly contract, create, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the followingIndebtedness, except:
(a) Indebtedness under incurred pursuant to this Agreement and the Loan other Credit Documents;
(b) Indebtedness outstanding existing on the date hereof and listed described on Schedule 7.01III (as reduced by any repayments thereof before, on or after the Effective Date), without giving effect to any subsequent extension, renewal or refinancing thereof (“Retained Existing Indebtedness”);
(c) Guaranty Obligations incurred by Swap Agreements entered into (i) to hedge or mitigate risks to which the US Borrower or any Guarantor of its Subsidiaries has actual exposure (other than those in respect of Indebtedness shares of capital stock or other equity ownership interests of Holdings or any of its Subsidiaries) or (ii) in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of Holdings, the US Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) belowof its Subsidiaries);
(i) Indebtedness of a Subsidiary acquired pursuant to a Permitted Acquisition (or Indebtedness assumed by the US Borrower or any of its Wholly-Owned Subsidiaries pursuant to a Permitted Acquisition as a result of a merger or consolidation or the acquisition of an asset securing such Indebtedness) (the “Permitted Acquired Debt”), so long as such Indebtedness was not incurred in respect of Capital connection with, or in anticipation or contemplation of, such Permitted Acquisition and (ii) Capitalized Lease Obligations and Indebtedness of the US Borrower and any of its Subsidiaries representing purchase money obligations for tangible property, Indebtedness secured by Liens permitted pursuant to Section 7.03(1); provided that the sum of (ii1) Indebtedness in respect the aggregate principal amount of sale all Permitted Acquired Debt at any time outstanding plus (2) the aggregate amount of Capitalized Lease Obligations incurred pursuant to this Section 7.04(d) on and leaseback transactions permitted by Section 7.13 after the Effective Date and (iii) other secured Indebtedness outstanding at any time (including secured Indebtedness incurred or assumed evidenced by the Borrower and its Subsidiaries in connection with a Capitalized Lease Obligations arising from Permitted Acquisition); provided, however, that Sale-Leaseback Transactions) plus (3) the aggregate principal amount of all such purchase money Indebtedness permitted by incurred pursuant to this subsection (dSection 7.04(d) on and after the Effective Date and outstanding at any one time outstanding time, shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k)40,000,000;
(e) renewals, extensions, refinancings and refundings of Indebtedness constituting Intercompany Loans to the extent permitted by clause Section 7.05(f);
(bf) Permitted Subordinated Refinancing Indebtedness, so long as no Default or Event of Default is in existence at the time of any incurrence thereof and immediately after giving effect thereto; provided that no Subsidiary of Holdings shall Guaranty any Permitted Subordinated Refinancing Indebtedness unless such Subsidiary is a US Credit Party and such Guaranty is subordinated to the Guaranty of such Subsidiary pursuant to the US Collateral and Guaranty Agreement on terms no less favorable to the Lenders than the subordination provisions of the Permitted Subordinated Refinancing Indebtedness;
(dg) above or this clause (e); provided, however, unsecured Indebtedness of the US Borrower and any other US Credit Party that any such renewal, extension, refinancing or refunding is a Subsidiary Guarantor incurred under the Senior Subordinated Notes and the other Senior Subordinated Note Documents in an aggregate principal amount not greater than in excess of the aggregate principal amount of the Senior Subordinated Notes outstanding immediately after the consummation of the Debt Tender Offer (plus reasonable fees, expenses which shall in no event exceed $3,500,000); provided that no Subsidiary of Holdings shall Guaranty any Indebtedness or other obligations under the Senior Subordinated Notes unless such Subsidiary is a US Credit Party and any premium incurred in connection with such Guaranty is subordinated to the renewal, extension, refinancing or refunding of such Indebtedness), Guaranty pursuant to the US Collateral and is Guaranty Agreement on terms that in the aggregate are not materially no less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, Lenders than the Indebtedness being renewed, extended, refinanced or refundedsubordination provisions of the Senior Subordinated Notes;
(fh) unsecured Indebtedness arising from intercompany loans of Holdings under (i) from Holdings Notes having an aggregate accreted value of $303,100,000, plus the Borrower to aggregate principal amount of any Guarantor; (ii) from any Subsidiary additional Holdings Notes issued, or the additional accretion of principal on the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt andHoldings Notes, in each case after the case date hereof in respect of Indebtedness described regularly scheduled interest payments thereon in clause (v) only, shall not permit any cash payments of any kind prior to accordance with the Maturity Date, terms thereof and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of hereof and less the amount of any repayments of principal thereof after the Effective Date and (ii) any Permitted Holdings Refinancing Indebtedness, so long as no Default or Event of Default is in existence at the time of incurrence of such Permitted Holdings Refinancing Indebtedness owed by such Subsidiary to and immediately after giving effect thereto;
(i) Indebtedness of the US Borrower or to any of its Subsidiaries that may be deemed to exist in connection with agreements providing for whose benefit indemnification, payment of purchase price, purchase price adjustments, earn-outs and similar obligations in connection with acquisitions or sales of assets and/or businesses effected in accordance with the requirements of this Agreement (so long as any such payment is made; provided, further that, in obligations are those of the case of Indebtedness described in clauses (iPerson making the respective acquisition or sale and are not guaranteed by any other Person), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;
Appears in 1 contract
Sources: Credit Agreement (Compass Minerals International Inc)
Indebtedness. The Neither the Borrower shall not, and shall not permit nor any of its Subsidiaries to, shall directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except: the Secured Obligations; Permitted Existing Indebtedness except for the following:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01;
(c) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below);
(i) Permitted Refinancing Indebtedness; Indebtedness in respect of Capital Lease obligations secured by Customary Permitted Liens; Indebtedness constituting Contingent Obligations and purchase money obligations for tangible property, (ii) Indebtedness in respect of sale and leaseback transactions permitted by Section 7.13 and (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition7.3(E); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 and the Liens securing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium incurred in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans and advances (i) from the Borrower to any Guarantor; (iia) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; , or (ivb) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any wholly-owned Subsidiary of the Borrower; provided, however, that (x) all if the Borrower or any Subsidiary Guarantor is the obligor on any such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (fv)) , such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant expressly subordinate to the Collateral Agreement (if payment in full in cash of the payee is a Loan Party that is a party Secured Obligations on terms reasonably satisfactory to the Collateral Agreement), (y) all such Administrative Agent; secured or unsecured purchase money Indebtedness (other than the Indebtedness described in clauses (i)including, (iiiwithout limitation, Capitalized Leases) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment incurred by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit after the Closing Date to finance the acquisition of fixed assets, if (1) at the time of such payment incurrence, no Default or Unmatured Default has occurred and is made; providedcontinuing or would result from such incurrence, further that(2) such Indebtedness has a scheduled maturity and is not due on demand, (3) such Indebtedness does not exceed the lower of the fair market value or the cost of the applicable fixed assets on the date acquired, (4) such Indebtedness does not exceed $5,000,000 in the case of Indebtedness described in clauses (i)aggregate principal amount outstanding at any time, (ii), (iii) and (iv5) above, the Investment in the intercompany loan by the lender thereof any Lien securing such Indebtedness is permitted under Section 7.03;7.3(C) (such Indebtedness being referred to herein as "Permitted Purchase Money Indebtedness"); Indebtedness with respect to surety, appeal and performance bonds obtained by the Borrower or any of its Subsidiaries in the ordinary course of business; Indebtedness incurred by the Borrower or any of its Subsidiaries (whether assumed by the Borrower or such Subsidiary or issued to the seller) in any Permitted Acquisition as part of the consideration therefor, provided that (a) such Indebtedness is unsecured and is subordinated to the Obligations on terms reasonably acceptable to the Administrative Agent (including, without limitation, in amount, amortization, maturity, interest rate, premiums, fees, covenants, subordination, events of default and remedies) and (b) such Indebtedness was not created in contemplation of such Permitted Acquisition; Indebtedness in respect of Hedging Obligations permitted under Section 7.3(P); Indebtedness in respect of profit sharing plans of the Borrower and its Subsidiaries; Indebtedness set forth on Schedule 7.3(A) hereto; and additional unsecured Indebtedness in an aggregate amount at any time outstanding not exceeding $5,000,000.
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Indebtedness. (a) The Borrower shall not, and nor shall not the Borrower permit any of its Subsidiaries Subsidiary to, directly or indirectly indirectly, create, incur, assume issue, assume, guarantee or otherwise become or remain directly or indirectly liable liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness); provided that the Borrower may incur Indebtedness (including Acquired Indebtedness and the issuance of shares of Disqualified Stock), and any Subsidiary may incur Indebtedness (including Acquired Indebtedness and the issuance of shares of Disqualified Stock), in each case, in an unlimited amount if (any Indebtedness incurred pursuant to the following clauses (A), (B) and (C), “Permitted Ratio Debt”):
(A) solely to the extent incurred prior to the Amendment No. 5 Effective Date, with respect to Indebtedness secured by Liens on any or all of the Collateral on a pari passu basis with the Liens on the Collateral that secure the Obligations, the First Lien Net Leverage Ratio for the Test Period preceding the date on which such Indebtedness is incurred (without netting any cash received from such incurrence) would be no greater than either (x) 3.50 to 1.00 or (y) to the extent such Indebtedness is incurred in connection with a Permitted Acquisition, the First Lien Net Leverage Ratio (determined on a pro forma basis after giving effect to such Permitted Acquisition) for the Test Period most recently ended preceding the date of such incurrence immediately prior to giving effect to such incurrence;
(B) with respect to Indebtedness constituting Junior Lien Debt secured by Liens on any or all of the Collateral that secures the Obligations, the Secured Net Leverage Ratio for the Test Period preceding the date on which such Indebtedness is incurred (without netting any cash received from such incurrence) would be no greater than either (x) 5.00 to 1.00 or (y) to the extent such Indebtedness is incurred in connection with a Permitted Acquisition, the Secured Net Leverage Ratio (determined on a pro forma basis after giving effect to such Permitted Acquisition) for the Test Period most recently ended preceding the date of such incurrence would be no greater than the Secured Net Leverage Ratio immediately prior to giving effect to such incurrence;
(C) with respect to Indebtedness that is not secured, either (x) the Total Net Leverage Ratio for the Test Period preceding the date on which such Indebtedness is incurred (without netting any cash received from such incurrence) would not exceed 5.00 to 1.00 (including in connection with an acquisition or other Investment permitted under this Agreement) or (y) to the extent such Indebtedness is incurred in connection with a Permitted Acquisition, the Total Net Leverage Ratio (determined on a pro forma basis after giving effect to such Permitted Acquisition) for the Test Period most recently ended preceding the date of such incurrence would be no greater than the Total Net Leverage Ratio immediately prior to giving effect to such incurrence; in each case, determined on a pro forma basis; provided further that Permitted Ratio Debt (other than Permitted Ratio Debt assumed in connection with a Permitted Acquisition (and not incurred in contemplation thereof)) shall be subject to the following requirements (the following sub-clauses (1), (2), (3), (4) and (5) below, collectively, the “Specified Debt Requirements”):
(1) the terms of any such Indebtedness (excluding, for the avoidance of doubt, interest rates (including through fixed interest rates), interest margins, rate floors, fees, funding discounts, original issue discounts and prepayment or redemption premiums and terms which shall be determined by the Borrower) shall, at the option of the Borrower, to the extent not consistent with the Closing Date Term Loans and the 2025 Incremental Term Loans existing on the date that the applicable Indebtedness is incurred (a) be not materially more restrictive to the Borrower when taken as a whole (as determined by the Borrower in good faith) than the terms of the Closing Date Term Loans and the 2025 Incremental Term Loans except, in the case of this clause (a), with respect to covenants and other terms applicable only to periods after the Latest Maturity Date in effect immediately prior to the incurrence of the Indebtedness or (b) if the foregoing clause (a) is not satisfied, be reasonably satisfactory to the Administrative Agent (provided that, at the Borrower’s election, to the extent any term or provision is added for the benefit of the lenders under any such applicable Indebtedness that constitutes a term loan or notes, no consent shall be required from the Administrative Agent or any Lender to the extent that such term or provision is also added, or the features of such term or provision are provided, for the benefit of the Closing Date Term Lenders and the 2025 Incremental Term Loan Lenders (and, for the avoidance of doubt, such term shall be deemed reasonably satisfactory to the Administrative Agent);
(2) such Indebtedness shall (i) not mature earlier than the Original Term Loan Maturity Date and (ii) have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the Closing Date Term Loans and the 2025 Incremental Term Loans outstanding on the date of incurrence of such Indebtedness;
(3) no Subsidiary that does not constitute a Loan Party may incur Permitted Ratio Debt if, on a pro forma basis after giving effect thereto, the aggregate outstanding principal amount and liquidation preference of Permitted Ratio Debt incurred by Subsidiaries that do not constitute Loan Parties would exceed the Non-Loan Party Cap;
(4) any mandatory prepayments of (a) any Permitted Ratio Debt in the form of term loans or notes, as applicable, that is secured by Liens on the Collateral that rank junior to the Liens on the Collateral that secure the Obligations or is not secured may not be made except to the extent that prepayments of such debt are not prohibited hereunder and to the extent required hereunder or pursuant to the terms of any Permitted Ratio Debt that is secured on a pari passu basis with the Obligations under this Agreement, first made or offered to the holders of the Closing Date Term Loans and the 2025 Incremental Term Loans (provided that, for the avoidance of doubt, mandatory prepayments may be made in connection with any refinancing of Permitted Ratio Debt permitted hereunder) and (b) any Permitted Ratio Debt that is secured by the Collateral on a pari passu basis with the Obligations under this Agreement in respect of events described in Section 2.05(2)(a), (b) and (c)(i) may be made on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis (provided that mandatory prepayments may be made on a greater than a pro rata basis with respect to repayments made in connection with any refinancing of any Permitted Ratio Debt permitted hereunder) with the Term Loans; and
(a) the MFN Provision shall apply to any Permitted Ratio Debt that is secured by the Collateral on a pari passu basis with the Obligations under this Agreement as if such Permitted Ratio Debt was an Incremental Term Loan (for the avoidance of doubt, whether or not such Permitted Ratio Debt is in the form of loans or notes (including whether or not such loans or notes are broadly distributed or widely syndicated)) and (b) solely to the extent such Permitted Ratio Debt is incurred after the repayment in full of the Obligations (as defined in the Super-Priority Credit Agreement) (other than inchoate obligations with respect to which no claim has been made), the ROFO Provision shall apply to any such Permitted Ratio Debt as if such Permitted Ratio Debt was an Incremental Term Loan (for the avoidance of doubt, whether or not such Permitted Ratio Debt is in the form of loans or notes (including whether or not such loans or notes are broadly distributed or widely syndicated)); provided that the Specified Debt Requirements above shall not prohibit the inclusion of customary terms for “bridge” facilities or facilities funded into customary escrow arrangements, including customary mandatory prepayment, repurchase or redemption provisions.
(b) the foregoing clause (a) shall not apply to the following:
(a1) Indebtedness of the Borrower and of its Subsidiaries under the Loan DocumentsDocuments (including Incremental Loans and Extended Loans);
(b2) Indebtedness [reserved];Indebtedness of the Borrower and its Subsidiaries under the Super-Priority Credit Agreement in an aggregate principal amount not to exceed $100,000,000 outstanding which may be senior in right of payment to the Obligations hereunder and/or secured by a Lien on the date hereof Collateral on a senior basis to the Liens securing the Obligations hereunder, in each case, subject in the Super-Priority Intercreditor Agreement;
(3) the incurrence of Indebtedness by the Borrower and any Subsidiary in existence on the Effective Date or the Closing Date listed on Schedule 7.017.02 (as such schedule may be modified or supplemented by the Borrower on or prior to the Closing Date with the reasonable consent of the Administrative Agent acting at the direction of the Required Lenders) (excluding Indebtedness described in the preceding clause (1) and clause (25) below);
(c4) Guaranty Indebtedness (including Capitalized Lease Obligations, Purchase Money Obligations and Existing Equipment Financings) incurred or issued by the Borrower or any other Loan Party and Preferred Stock issued by any Subsidiary, to finance the purchase, lease, expansion, construction, installation, replacement, repair or improvement of property (real or personal), equipment or other assets, including assets that are used or useful in a Similar Business, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets in an aggregate principal amount, together with any Refinancing Indebtedness in respect thereof and all other Indebtedness or Preferred Stock incurred or issued and outstanding under this clause (4), and any Refinancing Indebtedness of the Indebtedness referred to in this clause (4), at such time not to exceed $200,000,000;
(5) Indebtedness incurred by the Borrower or any Guarantor Subsidiary (a) constituting reimbursement obligations with respect to letters of credit, bank guarantees, banker’s acceptances, completion guarantees warehouse receipts, or similar instruments issued or entered into, or relating to obligations or liabilities incurred, in the ordinary course of business or consistent with industry practice, including in respect of workers’ compensation claims, performance, completion, bid, appeal or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance, unemployment insurance or other social security legislation or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims, performance, completion or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or (b) as an account party in respect of letters of credit, bank guarantees or similar instruments in favor of suppliers, trade creditors or other Persons issued or incurred in the ordinary course of business or consistent with industry practice;
(6) the incurrence of Indebtedness arising from agreements of the Borrower or any Subsidiary providing for (x) indemnification or adjustment of purchase price or similar obligation, (y) Earnouts, or (z) any promissory note or notes or similar seller financing issued by Borrower or a Subsidiary, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided that any payments of interest in respect of any such notes or financing under clause (z) shall not be cash-pay;
(7) the incurrence of Indebtedness of the Borrower owing to a Subsidiary (or to any Parent Company which is substantially contemporaneously transferred to the Borrower or any Guarantor Subsidiary); provided that any such Indebtedness for borrowed money owing to a Subsidiary that is not a Guarantor is expressly subordinated in right of payment to the Loans pursuant to the Intercompany Subordination Agreement; provided further that any subsequent issuance or transfer of any Capital Stock or any other event that results in any such Subsidiary ceasing to be a Subsidiary or any other subsequent transfer of any such Indebtedness (except to the Borrower or another Subsidiary or any collateral pledge of such Indebtedness constituting a Permitted Lien) will be deemed, in each case, to be an incurrence of such Indebtedness (to the extent such Indebtedness is then outstanding) not permitted by this Section 7.01 (other than clause (g) below7);
(i8) the incurrence of Indebtedness of a Subsidiary owing to the Borrower or another Subsidiary (or to any Parent Company which is substantially contemporaneously transferred to the Borrower or any Subsidiary) to the extent permitted by Section 7.05; provided that any such Indebtedness for borrowed money incurred by a Guarantor and owing to a Subsidiary that is not a Guarantor is expressly subordinated in right of payment to the Guaranty of the Loans of such Guarantor pursuant to the Intercompany Subordination Agreement; provided, further, that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Subsidiary ceasing to be a Subsidiary or any such subsequent transfer of any such Indebtedness (except to the Borrower or a Subsidiary or any collateral pledge of such Indebtedness constituting a Permitted Lien) will be deemed, in each case, to be an incurrence of such Indebtedness (to the extent such Indebtedness is then outstanding) not permitted by this clause (8);
(9) the issuance of shares of Preferred Stock or Disqualified Stock of a Subsidiary issued to the Borrower or a Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event that results in any such Subsidiary that holds such Preferred Stock or Disqualified Stock ceasing to be a Subsidiary or any other subsequent transfer of any such shares of Preferred Stock or Disqualified Stock (except to the Borrower or another Subsidiary or any collateral pledge of such Indebtedness constituting a Permitted Lien) will be deemed, in each case, to be an issuance of such shares of Preferred Stock or Disqualified Stock (to the extent such Preferred Stock is then outstanding) not permitted by this clause (9);
(10) the incurrence of Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes) in respect of Hedge Agreements designed to hedge against fluctuations in interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business;
(11) [reserved];
(12) the incurrence of Indebtedness of the Borrower and Indebtedness or Preferred Stock of the Borrower or any Subsidiary in an aggregate principal amount or liquidation preference that, when aggregated with the principal amount and liquidation preference of all other Indebtedness and Preferred Stock then outstanding and incurred or issued, as applicable, pursuant to this clause (12), together with any Refinancing Indebtedness in respect thereof, does not exceed the greater of Capital Lease Obligations (i) $30,000,000 and purchase money obligations for tangible property, (ii) Indebtedness in respect 3.0% of sale and leaseback transactions permitted by Section 7.13 and Total Assets (iiior after the Adjusted EBITDA Grower Trigger Date, 30.0% of Adjusted EBITDA) other secured Indebtedness as of (including secured Indebtedness incurred or assumed by for) the most recently ended Test Period (calculated on a pro forma basis) of the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) at any one time outstanding shall not exceed $200,000,000 (with such amount reduced by any amounts then outstanding and incurred pursuant to Section 2.14(4)(c)(I)) plus, without duplication, in the Liens securing event of any extension, replacement, refinancing, renewal or defeasance of any such Indebtedness, an amount equal to the amount of any premium required to be paid under the terms of the instrument governing such Indebtedness shall be within the limitations set forth in Sections 7.02(d), 7.02(e) or 7.02(k);
(e) renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b) or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of (plus reasonable fees, expenses and any premium defeasance costs and any fees and expenses (including original issue discount, upfront fees or similar fees) incurred in connection with the renewal, extension, refinancing or refunding issuance of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the Borrower or such Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the Spinoff, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement (if the payee is a Loan Party that is a party to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness described in clauses (i), (iii) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;
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Indebtedness. The Borrower shall notnot incur, and shall not permit create, assume, become or be liable in any of its Subsidiaries manner with respect to, directly or indirectly createsuffer or permit to exist, incurany obligations or indebtedness, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the followingexcept:
(a) Indebtedness under the Loan DocumentsObligations;
(b) Indebtedness outstanding trade accounts payable and other trade obligations and normal accruals in the ordinary course of business not yet due and payable, or with respect to which Borrower is contesting in good faith the amount or validity thereof by appropriate proceedings diligently pursued and available to Borrower and with respect to which adequate reserves have been set aside on the date hereof and listed on Schedule 7.01their books;
(c) Guaranty Obligations purchase money indebtedness (including Capital Leases) to the extent not incurred or secured by the Borrower or liens (including Capital Leases) in violation of any Guarantor in respect other provision of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 7.01 (other than clause (g) below)Agreement;
(d) unsecured indebtedness of Borrower for borrowed money incurred after the date hereof, owing to any Person other than any shareholder, officer, director, agent, employee or Affiliate of Borrower on commercially reasonable rates and terms pursuant to an arm's length transaction; provided, that, (i) Indebtedness Lender shall have received not less than five (5) Business Days prior written notice of the intention to incur such indebtedness, which notice shall set forth in reasonable detail satisfactory to Lender, the amount of such indebtedness, the person to whom such indebtedness will be owed, the interest rate, the schedule of repayments and maturity date with respect of Capital Lease Obligations thereto and purchase money obligations for tangible propertysuch other information as Lender may reasonably request with respect thereto, (ii) Indebtedness in respect Lender shall have received true, correct and complete copies of sale all agreements, documents and leaseback transactions permitted by Section 7.13 and instruments evidencing or otherwise related to such indebtedness, (iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition); provided, however, that the aggregate principal amount of all such Indebtedness permitted by this subsection (d) indebtedness at any one time outstanding shall not exceed $200,000,000 100,000, (iv) on and before the Liens securing date of incurring such Indebtedness indebtedness and after giving effect thereto, no Event of Default, or event which with the giving notice or the passage of time or both would constitute an Event of Default, shall exist or have occurred and be within continuing, (v) Borrower may only make regularly scheduled payments of principal and interest in respect of such indebtedness in accordance with the limitations terms of the agreement or instrument evidencing or giving rise to such indebtedness as in effect on the date of the execution thereof, and (vi) Borrower shall not, directly or indirectly, (A) make any prepayments or other non-mandatory payments in respect of such indebtedness, or (B) amend, modify, alter or change the terms of such indebtedness or any agreement, document or instrument related thereto, or (C) redeem, retire, defease, purchase or otherwise acquire such indebtedness, or set forth aside or otherwise deposit or invest any sums for such purpose, and (vii) Borrower shall furnish to Lender all notices, demands or other materials in Sections 7.02(d)connection with such indebtedness either received by Borrower or on its behalf, 7.02(e) promptly after the receipt thereof, or 7.02(k)sent by Borrower, or on its behalf, concurrently with the sending thereof, as the case may be;
(e) renewals, extensions, refinancings and refundings indebtedness of Indebtedness permitted by clause (b) or (d) above or this clause (e)Borrower described on Schedule 9.9 hereto; provided, however, that any that: (i) the individual principal amounts of such renewal, extension, refinancing or refunding is in an indebtedness and aggregate principal amount amounts of all such indebtedness shall not greater than exceed the principal amounts shown on such Schedule 9.9 hereto less the aggregate amount of all repayments, repurchases or redemptions, whether optional or mandatory in respect thereof, plus interest thereon at the rate provided for in such agreement or instrument as in effect on the date hereof, (plus reasonable feesii) Borrower may only make regularly scheduled payments of principal and interest in respect of such indebtedness in accordance with the terms of the agreement or instrument evidencing or giving rise to such indebtedness, expenses (iii) Borrower shall not, directly or indirectly, (A) amend, modify, alter or change the terms of such indebtedness or any agreement, document or instrument related thereto or (B) redeem, retire, defease, purchase or otherwise acquire such indebtedness, or set aside or otherwise deposit or invest any sums for such purpose, and any premium incurred (iv) Borrower shall furnish to Lender all notices or demands in connection with the renewal, extension, refinancing or refunding of such Indebtedness), and is on terms that in the aggregate are not materially less favorable to the indebtedness either received by Borrower or such Subsidiaryon its behalf, including promptly after the receipt thereof, or sent by Borrower or on its behalf, concurrently with the sending thereof, as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refundedcase may be;
(f) Indebtedness arising from intercompany loans (i) from the Subordinated Debt of Borrower to any Guarantor; (ii) from any Subsidiary of the Borrower issued to the Borrower or any Guarantor; (iii) from any Subsidiary of the Borrower that is not a Loan Party to any other Subsidiary of the Borrower that is not a Loan Party; (iv) from the Borrower or any Guarantor to any Subsidiary of the Borrower that is not a Guarantor; or (v) prior to the SpinoffSeller, from MII or any Affiliate of MII (other than the Borrower or a Subsidiary of the Borrower) to the Borrower or any Subsidiary of the Borrower; provided, however, that (x) all such Indebtedness (other than the Indebtedness described in clause (iii) or (v) of this clause (f)) shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Agreement Purchase Agreements; and
(if the payee is a Loan Party that is a party g) Indebtedness of Inyx EU to CMSL incurred pursuant to the Collateral Agreement), (y) all such Indebtedness (other than the Indebtedness loan agreement described in clauses (i), (iiiSection 4.1(gg) and (iv) of this clause (f)) shall be Subordinated Debt and, in the case of Indebtedness described in clause (v) only, shall not permit any cash payments of any kind prior to the Maturity Date, and (z) any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided, further that, in the case of Indebtedness described in clauses (i), (ii), (iii) and (iv) above, the Investment in the intercompany loan by the lender thereof is permitted under Section 7.03;hereof.
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