Indebtedness. (a) No Credit Party shall create, incur, assume or 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

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. Incur, create, assume, become or be liable in any manner with respect to, or permit to exist, any Indebtedness, other than: (a) ~~No Credit Party shall create~~Indebtedness to the Lender pursuant to the Loan Documents; (b) liabilities with respect to trade obligations, ~~incur~~accounts payable, ~~assume~~ advances, royalty or ~~permit~~ other similar payments, operating leases and other normal accruals incurred in the ordinary course of business, or with respect to ~~exist~~ 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 its books adequate reserves therefor; (c) Indebtedness existing on the date of this Agreement owed to those Persons, in those amounts and having those maturities as set forth in Schedule 3.01 of the Disclosure Schedule, including any ~~Indebtedness~~extensions, ~~except (without duplication)~~ 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 ~~secured by purchase money security interests and Capital Leases permitted in clause (c)~~ 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 its Subsidiaries in the ordinary course of the Business Operations and within the limitations provided in Section ~~6.7,~~ 6.17 below; (iie) purchase money Indebtedness incurred in connection with the ~~Loans~~ Borrower’s or its Subsidiaries’ acquisition of capital assets in the ordinary course of the Business Operations and within the ~~other Obligations,~~ limitations provided in Section 6.17 below; (~~iii~~f) ~~deferred taxes,~~ 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 between the Borrower and any Wholly-Owned Subsidiary or between Wholly-Owned Subsidiaries; (h) Guarantees 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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~~Section 6.03 below; (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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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.and (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v)The Seller Notes.

Appears in 3 contracts

Sources: Revolving Credit and Term Loan Agreement (General Environmental Management, Inc), Revolving Credit and Term Loan Agreement (CVC California LLC), Revolving Credit and Term Loan Agreement (General Environmental Management, Inc)

Indebtedness. ~~(a) No Credit Party~~ The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or ~~permit~~ otherwise become or remain directly or indirectly liable with respect to ~~exist~~ any ~~Indebtedness,~~ Indebtedness except for the following: (~~without duplication~~a) Indebtedness under the Loan Documents; (b) Indebtedness outstanding on the 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 ~~secured by~~ in respect of Capital Lease Obligations and purchase money ~~security interests~~ obligations for tangible property, (ii) Indebtedness in respect of sale and ~~Capital Leases~~ 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 $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 (cb) 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 than, including as to weighted average maturity, the Indebtedness being renewed, extended, refinanced or refunded; (f) Indebtedness arising from intercompany loans among the Borrower and its Subsidiaries; provided that (x) if any such Indebtedness owing to a Loan Party that is a party to the Collateral Agreement is evidenced by a promissory note, such note shall be subject to a first priority Lien pursuant to the Collateral Agreement, (y) all such Indebtedness owed by a Loan Party to a Subsidiary that is not a Loan Party shall be Subordinated Debt, and (z) any payment by any 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 each case, the Investment in the intercompany loan by the lender thereof is permitted under Section ~~6.7~~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 ~~Loans~~ Borrower and its Subsidiaries are in pro forma compliance with 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 unfunded under applicable law, (v) existing Indebtedness described financial covenants set forth in Disclosure Schedule (6.3) and refinancings thereof or 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 Section 7.16 immediately before 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 shall be a Great Northern Advance, (ix) Indebtedness owing to Affiliates and holders of Stock incurrence of such Credit Party that constitutes Subordinated Debt, is unsecured, interest on which is not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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 PartiesIndebtedness. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

Appears in 3 contracts

Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.), Credit Agreement (Babcock & Wilcox Enterprises, Inc.), Credit Agreement (Babcock & Wilcox Co)

Indebtedness. ~~(a) No Credit Party~~ The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or ~~permit~~ otherwise become or remain directly or indirectly liable with respect to ~~exist~~ any ~~Indebtedness,~~ Indebtedness except for the following: (~~without duplication~~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 ~~secured by~~ in respect of Capital Lease Obligations and purchase money ~~security interests~~ obligations for tangible property, (ii) Indebtedness in respect of sale and ~~Capital Leases~~ 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 (cb) 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 ~~Section 6.7~~(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 ~~Loans~~ 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 ~~Obligations~~than the Indebtedness described in clauses (i), (iii) ~~deferred taxes, to the extent permitted under applicable law,~~ and (iv) ~~unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law,~~ of this clause (vf)) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 theretoSubordinated Debt and, ~~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 Indebtedness described in clause (v) only, shall not permit any ~~intercompany Indebtedness~~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), (Xii), (iii) and (iv) above, 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)~~ Investment in the intercompany ~~Indebtedness shall be a Great Northern Advance, (ix) Indebtedness owing to Affiliates and holders of Stock of such Credit Party that constitutes Subordinated Debt,~~ loan by the lender thereof is unsecured, interest on which is not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).7.03;

Appears in 3 contracts

Sources: Credit Agreement (Babcock & Wilcox Co), Credit Agreement (Babcock & Wilcox Co), Credit Agreement (McDermott International Inc)

Indebtedness. ~~(a) No Credit Party shall~~ Borrower will not and will not permit any of its Subsidiaries directly or indirectly to create, incur, ~~assume~~ assume, guaranty, or ~~permit~~ otherwise become or remain directly or indirectly liable with respect to ~~exist~~ any ~~Indebtedness~~Indebtedness except: (A) the Obligations; (B) intercompany Indebtedness among Borrower and its Subsidiaries; provided that if Borrower is the obligor, ~~except~~ 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 (~~without duplication~~whether at stated maturity, by acceleration or otherwise); (C) Subordinated Indebtedness evidenced by the Subordinated Loan Documents; (iD) Indebtedness secured by purchase money ~~security interests~~ Liens, Indebtedness incurred with respect to capital leases and ~~Capital Leases permitted~~ Indebtedness evidenced by the Additional Seller Notes, not to exceed $7,500,000 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing theaggregate; (AE) ~~each Borrower shall have executed and delivered~~ 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 ~~each other Borrower, on the Closing Date, a demand note~~ exceed $5,000,000 provided (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; (D1) at the time ~~any such intercompany loan or advance is made by any Borrower to any other Borrower and after giving effect thereto~~of incurrence thereof, ~~each such Borrower shall be Solvent; (E)~~ no Default or Event of Default ~~would occur~~ shall exist and be continuing ~~after giving effect to any such proposed intercompany loan~~or shall arise from the incurrence thereof; and (~~F) in the case of any intercompany Indebtedness, (X~~2) 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~~ Additional Senior Term Loan is (Ya) the intercompany Indebtedness 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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. provided by SBA; (b) ~~No Credit Party shall, directly or indirectly, voluntarily purchase, redeem, defease or prepay~~ on substantially the same terms and conditions as the "Conditional Senior Term Loan" (as defined in the Senior Term Loan Agreement); and (c) is subject to the terms and conditions of the Intercreditor Agreement. Borrower shall not be permitted to incur any ~~principal of, premium, if any, interest or other amount payable in respect~~ revolving loan Indebtedness pursuant to the Senior Term Loan Documents; and (G) Subordinated Indebtedness incurred to refinance Subordinated Indebtedness held by SBA provided all of ~~any~~ the following conditions are satisfied ("Refinanced Subordinated Indebtedness~~, other than~~ "): (i) The Subordinated Indebtedness is on terms and conditions reasonably acceptable to ▇▇▇▇▇▇; (ii) the Person providing such Subordinated Indebtedness is reasonably acceptable to ▇▇▇▇▇▇; (iii) the Subordinated Indebtedness is subordinated to the Obligations, the Senior Term Loan and Additional Senior Term Loan on terms and conditions acceptable to ▇▇▇▇▇▇; (iiiv) ~~Indebtedness secured by~~ ▇▇▇▇▇▇ and SBA shall have entered into amendments to the Intercreditor Agreement on terms and conditions acceptable to ▇▇▇▇▇▇ including, without limitation, amendments to or elimination of ▇▇▇▇▇▇ standstill provisions and amendments to payment blockage provisions; and (v) at the time of such refinancing, no Default or Event of Default shall exist and be continuing or arise as a Permitted Encumbrance if the asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v)result thereof.

Appears in 3 contracts

Sources: Credit Agreement (Aki Holding Corp), Credit Agreement (Aki Holding Corp), Credit Agreement (Aki Inc)

Indebtedness. ~~(a) No Credit Party shall~~ Such Obligor will not, and will not permit any of its Subsidiaries to, create, incur, assume or 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) No Credit Party shall, whether 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~~ except: (i) the Obligations, ; (ii) Indebtedness ~~secured by a~~ owing under the Non-Convertible Credit Facility Loan Documents and Permitted ~~Encumbrance if~~ Refinancings thereof; provided that the ~~asset securing~~ aggregate outstanding principal amount of all such Indebtedness ~~has been sold or otherwise disposed~~ shall not exceed at any time the sum of ~~in accordance with Sections 6.8(b) or (c)~~ $35,000,000 and the amount of interest thereon compounded and added to the principal thereof; (iii) Indebtedness ~~permitted by Section 6.3(a)(v~~owing under the Convertible Credit Facility 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 $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement); (iv) ~~upon~~ Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders; (v) accounts 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 ~~refinancing thereof~~ of its Subsidiaries’ business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAP; (vi) 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; (vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders; (viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time; (ix) 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 $2,300,000 (or the Equivalent Amount in other currencies) at any time; (x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment 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 each case, in connection with transactions permitted under Section ~~6.3(a)(v~~9(c)(v); (xi) 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; (xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts; (xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and (xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securities.

Appears in 3 contracts

Sources: Credit Agreement (Kadmon Holdings, LLC), Waiver and Consent Agreement (Kadmon Holdings, LLC), Security Agreement (Kadmon Holdings, LLC)

Indebtedness. ~~(a) No Credit Party~~ Neither the Borrower nor any of its Subsidiaries shall directly or indirectly create, incur, assume or ~~permit~~ otherwise become or remain directly or indirectly liable with respect to ~~exist~~ any Indebtedness, ~~except (without duplication)~~ except: (i) ~~Indebtedness secured by purchase money security interests and Capital Leases permitted in clause (c) or (d) of Section 6.7,~~ the Secured Obligations; (ii) ~~the Loans~~ Permitted Existing Indebtedness and ~~the other Obligations,~~ Permitted Refinancing Indebtedness in respect thereof; (iii) ~~deferred taxes, to the extent permitted under applicable law,~~ Indebtedness in respect of obligations secured by Customary Permitted Liens; (iv) ~~unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are~~ Indebtedness constituting Contingent Obligations permitted ~~to remain unfunded under applicable law,~~ by Section 7.3(E); (v) ~~existing~~ subject to the terms of Section 7.3(Q), Indebtedness ~~described~~ 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 ~~Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have~~ full in cash of the ~~effect of increasing the~~Secured Obligations on terms satisfactory to the Administrative Agent; (Avi) ~~each~~ 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 ~~shall have executed and delivered to each other Borrower, on~~ or any of its Subsidiaries after the Closing ~~Date~~Date to finance the acquisition of fixed assets, ~~a demand note~~ if (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; (Da) at the time ~~any~~ of such ~~intercompany loan or advance is made by any Borrower to any other Borrower and after giving effect thereto~~incurrence, ~~each such Borrower shall be Solvent; (E)~~ no Default or ~~Event of~~ Unmatured Default has occurred and is continuing or would ~~occur and be continuing after giving effect to any~~ result from such ~~proposed intercompany loan; and (F) in the case of any intercompany Indebtedness~~incurrence, (Xb) ~~the Borrower advancing~~ such ~~funds shall have Borrowing Availability under its separate Borrowing Base of~~ Indebtedness has a scheduled maturity and is not ~~less than $1,00 after giving effect to such intercompany loan, or (Y) the intercompany Indebtedness shall be a Great Northern Advance~~due on demand, (ixc) such Indebtedness ~~owing to Affiliates and holders~~ does not exceed the lower of ~~Stock~~ the fair market value or the cost of ~~such Credit Party that constitutes Subordinated Debt, is unsecured, interest~~ the applicable fixed assets on ~~which is not payable in cash until after~~ the ~~Termination Date and as to which no principal is payable until after the Termination Date~~date acquired, (xd) such Indebtedness ~~under Hedging Agreements to the extent permitted under Section 6.17 and (xi) unsecured Indebtedness~~ does not ~~otherwise referred to in this Section 6.3 not exceeding~~ exceed $1,000,000 in the aggregate principal amount outstanding at any ~~time for all Credit Parties.~~ time, and (be) ~~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 asset~~ Lien securing such Indebtedness ~~has been sold or otherwise disposed of in accordance with Sections 6.8(b~~is permitted under Section 7.3(C) or (~~c) and~~ such Indebtedness being referred to herein as “Permitted Purchase Money Indebtedness”); (~~iii~~viii) Indebtedness with respect to surety, appeal and performance bonds obtained by the Borrower or any 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 unsecured and is subordinated to the Obligations on terms reasonably acceptable to the Administrative Agent (including, without limitation those with respect to amount, maturity (which shall not be prior to six (6) months after the Commitment Termination Date), amortization, interest rate, premiums, fees, covenants, subordination, events of default and remedies); (x) Indebtedness evidenced by the Subordinated Notes and Permitted Refinancing Indebtedness in respect thereof; (xi) guaranties by the Borrower of Indebtedness permitted to be incurred by ~~Section 6.3(a)(v~~any Subsidiary; and (xii) ~~upon~~ additional unsecured Indebtedness in an aggregate amount at any ~~refinancing thereof in accordance with Section 6.3(a)(v)~~time outstanding not 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. ~~(a) No Credit Party shall~~ The Borrower will not permit any of its Subsidiaries to, contract, create, incur, assume or permit to exist any Indebtedness, ~~except~~ other than: (~~without duplication~~a) Guaranty Obligations arising under this Credit Agreement and the other Credit Documents; (b) [Intentionally Omitted]; (c) Indebtedness in respect of current accounts payable and accrued expenses incurred in the ordinary course of business; (d) Indebtedness owing by a Subsidiary of the Borrower to the Borrower or another Subsidiary of the Borrower; (e) purchase money Indebtedness (including Capital Leases) to finance the purchase of fixed assets (including equipment); provided that (i) the total of all such Indebtedness shall not exceed an aggregate principal amount of $100,000,000 (less any purchase money Indebtedness incurred by the Borrower) at any one time outstanding; (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (iii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing; (f) Indebtedness arising from Permitted Receivables Financings in an amount not to exceed $600,000,000, in the aggregate (less any Indebtedness incurred by the Borrower arising from Permitted Receivables Financings), at any one time outstanding; (g) Indebtedness evidenced by Hedging Agreements entered into in the ordinary course of business and not for speculative purposes; (h) Any guaranty of Indebtedness of the Borrower; (i) Indebtedness ~~secured by purchase money security interests~~ incurred after the Closing Date in connection with the acquisition of a Person or Property as long as such Indebtedness existed prior to such acquisition and ~~Capital Leases permitted~~ was not created 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing theanticipation thereof; (Aj) ~~each Borrower shall have executed and delivered to each other Borrower,~~ Indebtedness existing on the date hereof as set forth on Schedule 8.1; (k) Indebtedness incurred after the Closing ~~Date, a demand note~~ Date by Foreign Subsidiaries in an amount not to exceed $400,000,000 (~~collectively,~~ or the ~~“Intercompany Notes”~~Dollar equivalent thereof) ~~to evidence any such intercompany Indebtedness owing~~ in the aggregate at any time ~~by such Borrower~~ outstanding; and (l) other unsecured Indebtedness in an amount not 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 theretoexceed $200,000,000, ~~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~~aggregate, (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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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 one time ~~for all Credit Parties~~outstanding. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

Appears in 3 contracts

Sources: Credit Agreement (Quest Diagnostics Inc), Credit Agreement (Quest Diagnostics Inc), Bridge Credit Agreement (Quest Diagnostics Inc)

Indebtedness. ~~(a) No Credit Party shall~~ The Borrowers will not, and will not permit any of their respective Subsidiaries to, create, incur, assume or ~~permit~~ suffer 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto provided that ~~do not have the effect of increasing the (A)~~ each Borrower ~~shall have executed~~ and ~~delivered to each other Borrower~~any of their Subsidiaries may incur any Indebtedness (and all premiums (if any), ~~on the Closing Date~~interest (including post-petition interest), ~~a demand note (collectively~~fees, ~~the “Intercompany Notes”) to evidence any such intercompany Indebtedness owing at any time by such Borrower~~ expenses, charges and additional or contingent interest with regard 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; Indebtedness) if (Bx) 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 immediately before and after ~~giving effect thereto~~such incurrence, ~~each such Borrower shall be Solvent; (E)~~ no Default or Event of Default ~~would occur~~ 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 ~~such proposed intercompany loan;~~ of the following items: (i) Indebtedness arising under the Loan Documents; (ii) Intercompany Indebtedness owed among the Borrowers and/or their Subsidiaries (including any Indebtedness used to finance any Financing Transaction); (iii) Permitted Subordinated Debt; (iv) Indebtedness in respect of Hedging Agreements; (v) Indebtedness in respect of overdraft facilities, netting services, automatic clearinghouse arrangements and ~~(F)~~ other cash management and similar arrangements in the ~~case~~ ordinary course of business; (vi) additional Indebtedness of the Borrowers and their respective Subsidiaries in an aggregate principal amount not to exceed $20,000,000 at any ~~intercompany~~ time outstanding; (vii) Indebtedness arising under fronting and/or settlement facilities (“Fronting Facilities”); provided that, at least 10 Business Days prior to incurring any such Indebtedness (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, ~~(X)~~ including an offer regarding the ~~Borrower advancing~~ timing of establishing such ~~funds~~ indebtedness, and MHCB shall have ~~Borrowing Availability under its separate Borrowing Base of not less than $1,00 after giving effect~~ either (1) declined (through a written notice from the Administrative Agent to such ~~intercompany loan,~~ Borrower and/or Subsidiary) to accept such offer to provide such Indebtedness or (Y2) ~~the intercompany Indebtedness shall be a Great Northern Advance~~failed to respond in writing to such offer, in each case, within such 10 Business Day period; (ixviii) ~~Indebtedness owing to Affiliates and holders of Stock of such Credit Party that constitutes Subordinated Debt~~any Finance Subsidiary Debt (provided that, is unsecured, interest on which is not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the extent secured, such Finance Subsidiary Debt shall only be 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) 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 be secured by ~~a Permitted Encumbrance if~~ Liens satisfying the ~~asset securing such Indebtedness has been sold or otherwise disposed~~ requirements of ~~in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).~~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. ~~(a) No Credit Party~~ Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or ~~permit to exist~~ guaranty, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, ~~except (without duplication)~~ except: (i) ~~Indebtedness secured by purchase money security interests~~ Company may become and ~~Capital Leases permitted in clause (c) or (d) of Section 6.7,~~ remain liable with respect to the Obligations; (ii) Company and its Subsidiaries may become and remain liable with respect to Contingent Obligations permitted by subsection 7.4 and, upon any matured obligations actually arising pursuant thereto, the ~~Loans and~~ Indebtedness corresponding to the ~~other Obligations,~~ Contingent Obligations so extinguished; (iii) ~~deferred taxes~~Company and its Subsidiaries may become and remain liable with respect to Indebtedness in respect of Capital Leases in an aggregate amount, together with the aggregate principal amount of any Indebtedness outstanding pursuant to ~~the extent permitted under applicable law~~subsection 7.1(vi), not to exceed $5,000,000 at any one time; (iv) ~~unfunded pension fund~~ Company may become and ~~other employee benefit plan obligations~~ remain liable with respect to Indebtedness to any wholly-owned Domestic Subsidiary, and ~~liabilities~~ any wholly-owned Domestic Subsidiary may become and remain liable with respect to ~~the extent they are permitted~~ Indebtedness to ~~remain unfunded under applicable law,~~ Company or any Domestic Subsidiary; provided that (va) ~~existing Indebtedness described~~ a security interest in Disclosure Schedule (6.3) and refinancings thereof or 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 all such intercompany Indebtedness ~~owing at any time~~ shall have been granted to Administrative Agent for the benefit of Lenders and (b) if such intercompany Indebtedness is evidenced by a promissory note or other instrument, such ~~Borrower~~ promissory note or instrument shall have been pledged to ~~such other Borrowers which Intercompany Notes shall be in form and substance reasonably satisfactory to Agent and shall be pledged and delivered to~~ Administrative Agent pursuant to the ~~applicable Pledge Agreement or~~ Security ~~Agreement~~ Agreement; (v) Company and its Subsidiaries, as ~~additional collateral security for the Obligations; (B) each Borrower shall record all intercompany transactions on its books~~ applicable, may remain liable with respect to Indebtedness described in Schedule 7.1 annexed hereto 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~~ extensions, renewals and refinancings of such ~~Borrower hereunder~~ Indebtedness; provided that the principal amount of such Indebtedness (including guaranteed Indebtedness) being extended, renewed or refinanced is not increased; and (vi) Company and its Subsidiaries may become and remain liable with respect to other Indebtedness, including Indebtedness secured by Liens permitted by subsection 7.2A(ii), in ~~a manner reasonably satisfactory to Agent; (D) at~~ an aggregate principal amount, together with 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 aggregate amount of any ~~intercompany Indebtedness~~Indebtedness outstanding pursuant to subsection 7.1(iii), ~~(X) the Borrower advancing such funds shall have Borrowing Availability under its separate Borrowing Base of~~ not ~~less than~~ to exceed $1,00 after giving effect to such intercompany loan, or (Y) the intercompany Indebtedness 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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 5,000,000 at any time ~~for all Credit Parties~~outstanding. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

Appears in 3 contracts

Sources: Credit Agreement (Ruths Hospitality Group, Inc.), Credit Agreement (Ruths Chris Steak House, Inc.), Credit Agreement (Ruths Chris Steak House, Inc.)

Indebtedness. The Borrower and each other Obligor will not, and will not permit any of its Restricted Subsidiaries to, create, incur or assume, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except: (a) ~~No Credit Party shall create~~Obligations of the Obligors under the Loan Documents; (b) Indebtedness existing on the date hereof and set forth in Section 6.01 of the Borrower Disclosure Letter and any refinancing, ~~incur~~refundings, ~~assume~~ renewals or ~~permit~~ extensions thereof; (c) Capital Lease Obligations, purchase money Indebtedness and loans incurred to ~~exist~~ acquire or improve equipment or other physical plant or real property of the Parent or any ~~Indebtedness, except (without duplication)~~ Restricted Subsidiary; provided that (i) such Indebtedness ~~secured~~ 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 ~~purchase money security interests and Capital Leases permitted in~~ this clause (c) ~~or (d) of Section 6.7~~shall not exceed, (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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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~~ outstanding, the ~~applicable Pledge Agreement~~ greater of (x) $150,000,000 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~~y) the ~~obligations of each Borrower under any such Intercompany Notes shall be subordinated to the Obligations~~ amount 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~~ Indebtedness and purchase money Indebtedness, if, immediately after giving effect thereto, ~~each~~ 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 ~~Borrower~~ Indebtedness shall be ~~Solvent;~~ evidenced by the Intercompany Note, and, if owed to an Obligor, shall be subject to a Lien under the Collateral Documents, (Eii) ~~no Default~~ 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 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 an Acquisition permitted hereunder), or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of the Borrower or any such Restricted Subsidiary pursuant to such agreements, in connection with Acquisitions permitted hereunder or permitted dispositions of any business or assets (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) Indebtedness 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 ~~would occur and~~ 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 ~~continuing after giving effect~~ incurred pursuant to ~~any such proposed intercompany loan~~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 (Fii) 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 ~~intercompany Indebtedness~~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 (Xi) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation) and (ii) the aggregate principal amount of all such outstanding Indebtedness permitted by this clause (i) shall not exceed $25,000,000 at any time; (j) other Indebtedness of the Borrower ~~advancing such funds shall have Borrowing Availability under its separate Borrowing Base of~~ and the other Restricted Subsidiaries not ~~less than $1,00~~ otherwise permitted by this Section 6.01 so long as, immediately after giving effect ~~to such intercompany loan~~thereto, or the Total Net Leverage Ratio determined on a Pro Forma Basis, would not exceed 2.50:1.00; (~~Y) the intercompany Indebtedness shall be a Great Northern Advance, (ix~~i) Indebtedness owing to ~~Affiliates and holders~~ 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 Stock of such Credit Party that constitutes Subordinated Debt, is unsecured, interest on which is not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination Date, business; (xl) Indebtedness under ~~Hedging Agreements~~ 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 ~~extent permitted under Section 6.17~~ ordinary course of business and consistent with past practice; (xip) other unsecured Indebtedness not ~~otherwise referred to~~ permitted by the foregoing in ~~this Section 6.3 not exceeding $1,000,000 in~~ an aggregate principal amount outstanding at any one time ~~for all Credit Parties.~~not exceeding $20,000,000; (bq) ~~No Credit Party shall, directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable~~ Indebtedness 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 ~~Indebtedness~~time outstanding; (r) Refinancing Indebtedness in respect of Sections 6.01(b), ~~other than~~ 6.01(c), 6.01(h), 6.01(j), 6.01(p) and 6.01(t); (s) Disqualified Equity Interests in an aggregate principal amount not exceeding $5,000,000; and (t) Indebtedness incurred by the Parent or its Restricted Subsidiary to acquire, construct or improve the New Fulfillment Center; provided that (i) such Indebtedness does not exceed the ~~Obligations~~purchase price of the New Fulfillment Center (or improvement thereon, as applicable) plus expenses, and (ii) ~~Indebtedness secured by a Permitted Encumbrance if the asset securing~~ any Lien that secures such Indebtedness ~~has been sold~~ does not apply to property or ~~otherwise disposed~~ assets of ~~in accordance with Sections 6.8(b)~~ the Parent or ~~(c) and (iii)~~ its Restricted Subsidiaries other than assets that are or will be a part of the New Fulfillment Center; provided, further that the aggregate principal amount of Indebtedness permitted by ~~Section 6.3(a)(v~~this clause (t) ~~upon~~ shall not exceed, at any ~~refinancing thereof in accordance with Section 6.3(a)(v)~~time outstanding, $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. (a) ~~No Credit Party~~ The Borrower shall not, nor shall the Borrower permit any Restricted Subsidiary to, directly or indirectly: (i) create, incur, ~~assume~~ issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness); or (ii) issue any shares of Disqualified Stock or permit any Restricted Subsidiary to ~~exist~~ 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, ~~except~~ Disqualified Stock or Preferred Stock incurred or issued pursuant to following clauses (~~without duplication) (i) Indebtedness secured by purchase money security interests and Capital Leases permitted in clause (c) or (d) of Section 6.7~~A), (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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3B) and ~~refinancings thereof or amendments or modifications thereto that do not have the effect of increasing the~~(C), “Permitted Ratio Debt”): (A) ~~each Borrower shall have executed and delivered~~ with respect to ~~each other Borrower,~~ Indebtedness secured on a pari passu basis with the ~~Closing Date, a demand note (collectively~~First Lien Obligations, 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 First Lien Net Leverage Ratio for the ~~Obligations;~~ 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 2.00 to 1.00; (B) ~~each Borrower shall record all intercompany transactions~~ with respect to Indebtedness secured by Liens on ~~its books and records~~ a basis that is junior in ~~a manner reasonably satisfactory~~ priority to ~~Agent~~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 ~~obligations of each Borrower under~~ 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 ~~such Intercompany Notes shall be subordinated to~~ cash received from the ~~Obligations~~ incurrence of such ~~Borrower hereunder~~ Indebtedness proposed to be incurred) would be no greater than 4.00 to 1.00, in each case, determined on a ~~manner reasonably satisfactory to Agent;~~ pro forma basis (D) 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 ~~time any~~ beginning of such ~~intercompany loan or advance is made by any Borrower to any other Borrower and after giving effect thereto~~Test Period; provided, ~~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)~~ further, that Permitted Ratio Debt in the ~~case~~ form 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (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 ~~Hedging Agreements~~ this Agreement, then the Borrower shall comply with the “most favored nation” pricing provisions of Section 2.14(5)(c) to the extent ~~permitted under~~ then applicable to the Incremental Term Loans as if such Indebtedness were Incremental Term Loans incurred pursuant to 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~~2.14. (b) ~~No Credit Party shall~~The provisions of Section 7.02(a) will not apply to: (1) Indebtedness under the Loan Documents (including Incremental Loans, ~~directly~~ Other Loans, Extended Term Loans, Loans made pursuant to Extended Revolving Commitments and Replacement Loans); (2) Indebtedness of the Borrower or ~~indirectly, voluntarily purchase, redeem, defease or prepay~~ any ~~principal of, premium, if any, interest or other amount payable~~ 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 ~~Obligations~~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 or Disqualified Stock of the Borrower or Indebtedness, Disqualified Stock or Preferred Stock of a Restricted Subsidiary, incurred or issued to finance an acquisition or investment (or other purchase of assets) or that is assumed by the Borrower or any Restricted Subsidiary in connection with such acquisition or investment (or other purchase of assets); and (b) Indebtedness, Disqualified Stock or Preferred Stock of (i) 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 or (ii) an Unrestricted Subsidiary that is redesignated as a restricted Subsidiary (it being acknowledged that (x) 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 (y) an Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary may remain liable with respect to Indebtedness existing on the date of such redesignation); in the case of the preceding clauses (a) and (b), 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 of $45,000,000 and 30% of Consolidated EBITDA, plus (B) an unlimited amount of Indebtedness so long as in the case of this clause (B) 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 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 Liens on a ~~Permitted Encumbrance if~~ basis that is junior in priority to the ~~asset securing~~ First Lien Obligations, either (x) 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 ~~has been sold or otherwise disposed of in accordance with Sections 6.8(b~~proposed to be incurred) would be no greater than 2.25 to 1.00 or (cy) ~~and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).~~after giving pro forma effect to such acquisition, amalgamation, consolidation or merger, the Secured Net Leverage Ratio of the Borrower for the Test Period preceding the date on whi

Appears in 2 contracts

Sources: Credit Agreement (GreenSky, Inc.), Credit Agreement (GreenSky, Inc.)

Indebtedness. ~~(a) No Credit Party shall~~ The Borrower will not, and will not permit or cause any of its Subsidiaries to, create, incur, assume or ~~permit~~ suffer to exist any Indebtedness, ~~except~~ without the consent of the Required Lenders, other than (without duplication) ): (i) Indebtedness ~~secured by purchase money security interests~~ of the Credit Parties in favor of the Administrative Agent and ~~Capital Leases permitted in clause (c) or (d) of Section 6.7,~~ the Lenders incurred under this Agreement and the other Credit Documents; (ii) Indebtedness of the ~~Loans~~ Borrower and ~~the other~~ its Subsidiaries consisting of seller notes (including Convertible Seller Notes and Contingent Purchase Price Obligations, ) in connection with (~~iii~~x) ~~deferred taxes,~~ Permitted Acquisitions and (y) acquisitions consummated prior 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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, 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 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; (v) 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 fixed assets in the ordinary course of business (or assumed or acquired by the Borrower and its Subsidiaries in connection with a ~~demand note~~ Permitted Acquisition or other transaction permitted under this Agreement), (~~collectively~~but excluding Capital Lease Obligations), and any renewals, replacements, refinancings or extensions thereof, provided that all such Indebtedness shall not exceed $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 ~~“Intercompany Notes”~~Borrower and its Subsidiaries) in an amount not to ~~evidence~~ exceed $10,000,000 outstanding at any time; provided that following a Specified Availability Increase, such Indebtedness shall not exceed $20,000,000; (vii) unsecured loans and advances (A) by the Borrower or any Subsidiary to any Subsidiary Guarantor, (B) by any Subsidiary to the Borrower, provided in each case that any such ~~intercompany Indebtedness owing at any~~ loan or advance is subordinated in right and time of payment to the Obligations and is evidenced by ~~such Borrower to such other Borrowers which Intercompany Notes shall be~~ a promissory note, in form and substance reasonably satisfactory to the Administrative Agent and ~~shall be~~ pledged ~~and delivered~~ to the Administrative Agent pursuant to the ~~applicable Pledge Agreement~~ Security Documents; (viii) Indebtedness consisting of Guaranty Obligations of the Borrower or ~~Security Agreement as additional collateral security~~ any of its Subsidiaries incurred in the ordinary course of business for the ~~Obligations;~~ benefit of the Borrower or a Subsidiary Guarantor, provided that the primary obligation being guaranteed is permitted by this Agreement; (Bix) ~~each~~ Guaranty Obligations of customers of the Borrower ~~shall record all intercompany transactions on~~ and its ~~books and records~~ Subsidiaries outside of the ordinary course of business in ~~a manner reasonably satisfactory to Agent; (C)~~ connection with its customer financing program, the underlying obligations of ~~each~~ which do not exceed $2,500,000 outstanding at any time; (x) notwithstanding subsection (v) above, purchase money Indebtedness of the Borrower ~~under any such Intercompany Notes shall be subordinated~~ 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 ~~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~~its Subsidiaries arising from the honoring by a bank or other financial institution of a check, ~~each such Borrower shall be Solvent;~~ draft or similar instrument inadvertently (~~E) no Default or Event of Default would occur and be continuing after giving effect to any such proposed intercompany loan; and (F)~~ 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 ~~intercompany Indebtedness~~performance bond, ~~(X)~~ surety, statutory appeal or similar obligation entered into or incurred by the Borrower ~~advancing such funds shall have Borrowing Availability under~~ or any of its ~~separate Borrowing Base~~ Subsidiaries in the ordinary course of ~~not less than $1,00 after giving effect to such intercompany loan, or~~ business; and (Yxiv) the intercompany Indebtedness 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the extent permitted under Section 6.17 and (xi) other general unsecured Indebtedness not ~~otherwise referred~~ to exceed $500,000 in ~~this Section 6.3 not exceeding $1,000,000 in~~ the aggregate ~~principal amount~~ outstanding at any ~~time for all Credit Parties~~time. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

Appears in 2 contracts

Sources: Credit Agreement (Swisher Hygiene Inc.), Credit Agreement (Swisher Hygiene Inc.)

Indebtedness. ~~(a) No Credit Party~~ Borrowers shall not, and shall not suffer or permit any Restricted Subsidiary to, create, ~~incur,~~ incur or assume ~~or permit to exist~~ any Indebtedness, except ~~(without duplication)~~ for the following: (i) Indebtedness ~~secured by purchase money security interests~~ arising or existing under this Agreement and the other Credit Documents; (ii) Indebtedness existing as of the Closing Date and set forth on Schedule 11.2(e) together with any refinancing thereof; (iii) Indebtedness incurred after the Closing Date consisting of Capital Leases ~~permitted in clause~~ or Purchase Money Indebtedness; provided that (ci) such Indebtedness when incurred shall not exceed the purchase price or ~~(d)~~ cost of ~~Section 6.7~~construction of the assets acquired or constructed, (ii) no such Indebtedness shall be refinanced for a principal amount in excess of the ~~Loans~~ principal balance outstanding thereof at the time of such refinancing and ~~the other Obligations,~~ (iii) ~~deferred taxes, to~~ the ~~extent permitted under applicable law,~~ total amount of all such Indebtedness shall not exceed $15,000,000 at any time outstanding; (iv) ~~unfunded pension fund~~ unsecured intercompany Indebtedness among Obligors, among Restricted Subsidiaries and ~~other employee benefit plan obligations~~ among Obligors and liabilities to the extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto Restricted Subsidiaries; provided 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~~ an Obligor to ~~such other Borrowers which Intercompany Notes~~ a Restricted Subsidiary that is not an Obligor 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 fully subordinated to the Obligations ~~of such Borrower~~ hereunder ~~in a manner~~ on terms and conditions reasonably satisfactory to Borrowers and the Administrative Agent; (v) Indebtedness and obligations owing under Hedging Agreements entered into in order to manage existing or anticipated business risks and not for speculative purposes; (vi) unsecured Indebtedness of Borrowers; provided that (~~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~~i) no Default or Event of Default ~~would occur~~ shall have occurred and be continuing on a pro forma basis immediately prior to and immediately after giving effect to the full amount of such Indebtedness and (ii) Borrowers shall be in compliance on a Pro Forma Basis with the covenant in Section 11.1(l); (vii) Indebtedness of any Person that becomes a Restricted Subsidiary (or that is merged or consolidated with or into a Borrower or a Restricted Subsidiary) after the Closing Date in a transaction permitted hereunder, which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary (or that is merged or consolidated with or into a Borrower or a Restricted Subsidiary) (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary, or being merged or consolidated with or into a Borrower or a Restricted Subsidiary), and any refinancing thereof; (viii) Indebtedness that is subordinated to the Obligations; provided, however, that (A) the subordination of such Indebtedness is pursuant to a written subordination agreement satisfactory to the Administrative Agent in its sole discretion, (B) the terms, conditions and amount of 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 subordinated Indebtedness shall be ~~a Great Northern Advance~~satisfactory to the Administrative Agent in its sole discretion, (C) the stated maturity date or mandatory redemption date of such subordinated Indebtedness shall not be prior to the Maturity Date, and (D) immediately prior to and immediately after giving pro forma effect to the full amount of such subordinated Indebtedness, no Default or Event of Default shall occur hereunder; (ix) Indebtedness ~~owing~~ in respect of netting services, automatic clearinghouse arrangements, overdraft protections, employee credit card programs and other cash management, workers’ compensation claims, deferred compensation to ~~Affiliates~~ employees, bankers’ acceptances, performance or surety, appeal or similar bonds issued for the account of and ~~holders~~ completion guarantees and other similar obligations provided by any Restricted Subsidiary, in each case, in the ordinary course of Stock of such Credit Party that constitutes Subordinated Debt, is unsecured, interest on which is not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination Date, business consistent with past practices; (x) Indebtedness ~~under Hedging Agreements~~ consisting of guarantees of Indebtedness of any Obligor or Restricted Subsidiary so long the underlying Indebtedness is permitted to ~~the extent permitted under Section 6.17 and~~ be incurred hereunder; (xi) ~~unsecured~~ Indebtedness ~~not otherwise referred~~ arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, in each case entered into in connection with dispositions permitted hereunder, Permitted Acquisitions, Permitted Debt Investments or other Permitted Investments; (xii) Indebtedness consisting of the financing of insurance premiums in the ordinary course of business; (xiii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Obligors to pay the deferred purchase price of goods or services or progress payments in ~~this Section 6.3 not exceeding $1,000,000 in~~ connection with such goods and services; and (xiv) other Indebtedness the aggregate unpaid principal amount ~~outstanding~~ of which shall not at any time ~~for all Credit Parties~~exceed $25,000,000. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

Appears in 2 contracts

Sources: Loan Agreement (Royal Gold Inc), Revolving Facility Credit Agreement (Royal Gold Inc)

Indebtedness. ~~(a) No Credit Party shall create~~Without Bank’s prior written consent, ~~incur, assume or permit to exist~~ Guarantor will not incur any ~~Indebtedness, except (without duplication)~~ Indebtedness other than: (i) the Additional Beacon Noteholder Subordinated Debt, the December 2011 Beacon Noteholder Subordinated Debt, and the other Indebtedness ~~secured by purchase money security interests and Capital Leases permitted in clause (c) or (d) of Section 6.7,~~ set forth on Schedule I; (ii) the ~~Loans and the other~~ Guaranteed Obligations, ; (iii) ~~deferred~~ 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 nonpayment of or other default under which would not have a Material Adverse Effect; (iv) Indebtedness in respect of taxes, assessments or governmental charges to the extent ~~permitted under applicable law, (iv) unfunded pension fund and other employee benefit plan obligations and liabilities~~ that payment thereof shall not at the time be required to ~~the extent they are permitted to remain unfunded under applicable law,~~ be made; (v) ~~existing~~ Indebtedness ~~described~~ in ~~Disclosure Schedule~~ respect of judgments or awards which (~~6.3~~1) ~~and refinancings~~ have been vacated, discharged or stayed within 10 days of the entry thereof or ~~amendments~~ have been in force for less than the applicable appeal period so long as execution is not levied thereunder (or ~~modifications thereto that~~ in respect of which (A) Guarantor shall at the time in good faith be prosecuting an appeal or proceedings for review and (B) a stay of execution shall have been obtained pending such appeal or review), and (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 award for which the insurer has admitted in writing its liability for the full amount thereof and (B) do not have a Material Adverse Effect (regardless of monetary amount or insurance coverage); (vi) Indebtedness under capitalized leases or purchase money financing if (1) such Indebtedness is not secured by any of the ~~effect of increasing the~~ Loan Collateral other than the property so acquired and any identifiable proceeds, (A2) ~~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~~ Liens relating to such Indebtedness do not extend to or cover any property of Guarantor other ~~Borrowers which Intercompany Notes shall be in form~~ than the property so acquired 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; any identifiable proceeds therefrom, (~~B) each Borrower shall record all intercompany transactions on its books and records in a manner reasonably satisfactory to Agent; (C~~3) the ~~obligations of each Borrower under any such Intercompany Notes shall be subordinated to the Obligations~~ principal amount of such ~~Borrower hereunder in a manner reasonably satisfactory to Agent; (D)~~ capitalized lease or purchase money Indebtedness will not, at the time of the incurrence thereof, exceed the value of the property so acquired; and (4) the total amount of such Indebtedness during any ~~such intercompany loan~~ 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 ~~advance is made by any Borrower~~ otherwise), letters of credit, banker’s acceptances, drafts or similar documents or instruments issued for Guarantor’s account in the ordinary course of Guarantor’s business; provided, that no Indebtedness otherwise permitted under this Section 3.2(a) to ~~any other Borrower and after giving effect thereto, each such Borrower~~ be incurred shall be ~~Solvent; (E) no Default or Event of Default would occur and~~ permitted to be ~~continuing~~ incurred if, after giving effect to the incurrence thereof, any ~~such proposed intercompany loan; and (F) in the case~~ Event of ~~any intercompany Indebtedness, (X) the Borrower advancing such funds~~ Default 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 shall~~ occurred and 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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 Partiescontinuing. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

Appears in 2 contracts

Sources: Guaranty (EQM Technologies & Energy, Inc.), Guaranty (EQM Technologies & Energy, Inc.)

Indebtedness. (a) ~~No Credit Party shall~~ The Borrower will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, ~~assume~~ issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Borrower will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to ~~exist~~ issue any ~~Indebtedness~~shares of preferred stock; provided, ~~except~~ however, that the Borrower may incur Indebtedness (~~without duplication~~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 ~~secured~~ 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 ~~purchase money security interests~~ the Borrower and/or any Subsidiary Guarantor of Indebtedness and ~~Capital Leases permitted~~ 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 (ci)(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 (dother 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 ~~6.7,~~ 10.08; (ii) the ~~Loans~~ 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 ~~Obligations~~than intercompany Indebtedness) that was permitted by this Agreement to be incurred under Section 10.04(a) or Sections 10.04(b)(ii), (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 unfunded under applicable law~~), (v~~) existing Indebtedness described in Disclosure Schedule~~ ), (~~6.3~~xv), (xvi), (xvii), (xviii), (xix) and ~~refinancings thereof~~ (xxiii); (vi) the incurrence by the Borrower or ~~amendments~~ any of its Restricted Subsidiaries of intercompany Indebtedness between or ~~modifications thereto that do not have~~ among the ~~effect~~ Borrower and any of ~~increasing the~~its Restricted Subsidiaries; provided, however, that: (A) ~~each~~ if the Borrower ~~shall have executed~~ or any Subsidiary Guarantor is the obligor on such Indebtedness and ~~delivered~~ the payee is not the Borrower or a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to ~~each other Borrower, on~~ the ~~Closing Date, a demand note~~ prior payment in full in cash of the Obligations; and (~~collectively, the “Intercompany Notes”~~B) ~~to evidence~~ (x) any subsequent issuance or transfer of Equity Interests that results in any such ~~intercompany~~ Indebtedness ~~owing at~~ being held by a Person other than the Borrower or a Restricted Subsidiary of the Borrower and (y) any ~~time~~ 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 a Subsidiary Guarantor that was permitted 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 Obligationsincurred by another provision of this Section 10.04; (B) ~~each Borrower shall record all intercompany transactions on its books~~ any of the Excluded Project Subsidiaries of Indebtedness of any other Excluded Project Subsidiary; and ~~records in a manner reasonably satisfactory to Agent;~~ (C) any of the ~~obligations~~ Excluded Foreign Subsidiaries of ~~each Borrower under~~ Indebtedness of any ~~such Intercompany Notes~~ 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 ~~Obligations~~ same extent as the Indebtedness guaranteed; (x) the incurrence by the Borrower or any of ~~such Borrower hereunder in~~ its Restricted Subsidiaries of Indebtedness arising from customary cash management services, netting arrangements, automated clearing house transfers, or the honoring by a ~~manner reasonably satisfactory to Agent;~~ bank or other financial institution of a check, draft or similar instrument (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) 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 ~~intercompany~~ 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 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 dollar-for-dollar basis by the amount of such letter of credit facility; (xv) Indebtedness, ~~(X)~~ Disqualified Stock or preferred stock of Persons or assets that are acquired by the Borrower ~~advancing~~ 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 ~~funds shall have Borrowing Availability under its separate Borrowing Base of~~ Indebtedness, Disqualified Stock or preferred stock is not ~~less than $1,00~~ incurred in contemplation of, or to finance, such acquisition or merger; provided, further, that after giving effect to such ~~intercompany loan~~acquisition or merger, or either: (YA) the ~~intercompany~~ 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 ~~be a Great Northern Advance,~~ deliver to the Administrative Agent an Officer’s Certificate designating such Indebtedness as Environmental CapEx Debt; (ixxvii) Indebtedness ~~owing~~ incurred to ~~Affiliates~~ 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 ~~holders~~ (B) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of ~~Stock~~ business; (xix) the incurrence by the Borrower or any of ~~such Credit Party~~ its Restricted Subsidiaries of Contribution Indebtedness; (xx) the incurrence by the Borrower and/or any of its Restricted Subsidiaries of Indebtedness that constitutes ~~Subordinated Debt, is unsecured, interest on which is not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination Date,~~ a Permitted Tax Lease; (xxxi) Indebtedness of Foreign Subsidiaries of the Borrower under ~~Hedging Agreements~~ lines of credit to any such Foreign Subsidiary from Persons other than the ~~extent permitted under Section 6.17 and (xi) unsecured~~ Borrower or any of its Restricted Subsidiaries, the proceeds of which Indebtedness ~~not otherwise referred to in this Section 6.3 not exceeding $1,000,000 in~~ are used for such Foreign Subsidiary’s working capital purposes; provided that the aggregate principal amount of all such Indebtedness outstanding at any time for all ~~Credit Parties~~such Foreign Subsidiaries shall not exceed $50,000,000; (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; 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, 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) $200,000,000 and (B) 5.0% of Consolidated Total Assets. (bc) ~~No Credit Party shall~~The Borrower will not incur, ~~directly~~ 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 ~~indirectly~~such Subsidiary Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Obligations on substantially identical terms; provided, ~~voluntarily purchase~~however, ~~redeem~~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, ~~defease~~ 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 ~~prepay~~ is entitled to be incurred pursuant to Section 10.04(a), the Borrower will be permitted to classify such item of Indebtedness 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 ofamount 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, ~~premium~~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, ~~if any, interest or other~~ such U.S. dollar-dominated restriction shall be deemed not to have been exceeded so long as the principal amount ~~payable in respect~~ of such refinancing Indebtedness does not exceed the principal amount of the Indebtedness being refinanced. (f) The amount of any ~~Indebtedness, other than~~ Indebtedness outstanding as of any date will be (i) the ~~Obligations~~accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount; (ii) ~~Indebtedness secured by a Permitted Encumbrance if~~ the ~~asset securing such Indebtedness has been sold or otherwise disposed~~ principal amount of the Indebtedness, in ~~accordance with Sections 6.8(b) or (c)~~ the case of any other Indebtedness; and (iii) in respect of Indebtedness ~~permitted~~ 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 ~~6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v)~~10.04.

Appears in 2 contracts

Sources: Credit Agreement (Dynegy Inc.), Credit Agreement (Dynegy Inc.)

Indebtedness. No Loan Party shall, nor shall it permit any of its Subsidiaries to, create, incur or assume any Indebtedness; provided that any Loan Party and any of their respective Subsidiaries may incur and become and remain liable for: (a) ~~No Credit Party shall create~~subject, ~~incur, assume or permit to exist any~~ in the case of Combined Recourse Indebtedness, ~~except (without duplication) (i) Indebtedness secured by purchase money security interests and Capital Leases permitted~~ to the limitations set forth in clause (cb) below, Indebtedness so long as after giving effect to (and, except in the circumstances 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 (db), 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 in an aggregate amount not to exceed 15.0% of Value at the time of incurrence (after giving effect to such incurrence) of ~~Section 6.7~~such Combined Recourse Indebtedness; (c) any Indebtedness refinancing, ~~(ii) the Loans and the other Obligations, (iii) deferred taxes, to the extent~~ refunding or replacing any Indebtedness originally permitted under ~~applicable law~~this Section 6.08 (in any case, ~~(iv) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law~~including any refinancing Indebtedness incurred in respect thereof, ~~(v) existing Indebtedness described in Disclosure Schedule (6.3~~“Refinancing Indebtedness”) and ~~refinancings thereof~~ any subsequent Refinancing Indebtedness in respect thereof; provided that the principal amount of such Refinancing Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or ~~amendments or modifications thereto that do not have the effect of increasing the~~ replaced, except by (A) ~~each Borrower shall have executed~~ an amount equal to unpaid accrued interest and ~~delivered to each~~ premiums (including tender premiums) thereon plus underwriting discounts and other ~~Borrower~~reasonable and customary fees, on commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the ~~Closing Date~~relevant refinancing, ~~a demand note (collectively~~refunding or replacement, 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~~ an amount equal to any existing commitments unutilized thereunder and ~~records in a manner reasonably satisfactory to Agent;~~ (C) additional amounts permitted to be incurred pursuant to this Section 6.08; (d) the ~~obligations~~ Secured Obligations (including any Additional Loans); (e) Indebtedness of ~~each Borrower under~~ a Loan Party to any ~~such Intercompany Notes shall~~ other Loan Party and/or any Subsidiary, and Indebtedness of a Subsidiary to any other Subsidiary and/or any Loan Party; provided that any Indebtedness of any Loan Party owing to any Subsidiary that is not a Loan Party must be unsecured and expressly subordinated to the Obligations of such ~~Borrower~~ Loan Party pursuant to an Intercompany Note or otherwise on terms that are reasonably acceptable to the Administrative Agent; (f) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder ~~in a manner reasonably satisfactory~~ or consummated prior to ~~Agent; (D) at~~ the ~~time~~ Closing Date or any other purchase of assets or Equity Interests, and Indebtedness arising from guaranties, letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments securing the performance of any Loan Party or any of its Subsidiaries pursuant to any such ~~intercompany loan~~ agreement; (g) Subordinated Parent Indebtedness; (h) Indebtedness of in respect of Banking Services and incentive, supplier finance or ~~advance is made~~ 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 ~~Borrower~~ Letter of Credit; (k) without duplication of any other Indebtedness, all premiums (if any), interest (including post-petition interest and payment in kind interest), accretion 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 ordinary course of business and (ii) deferred compensation or other ~~Borrower~~ similar arrangements in connection with the Transactions, any acquisition or any other Investment permitted hereby; and (n) Indebtedness (to the extent not permitted pursuant to clauses (a) through (m) 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 Loan Parties and ~~after giving effect thereto, each such Borrower shall be Solvent; (E) no Default or Event of Default would occur and be continuing~~ their respective Subsidiaries existing immediately after giving effect to the Transactions, and 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 Refinancing Indebtedness ~~shall be a Great Northern Advance, (ix) Indebtedness owing to Affiliates and holders of Stock of such Credit Party that constitutes Subordinated Debt~~thereof, is unsecured, interest on which is not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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 Partiespermitted. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

Appears in 2 contracts

Sources: Credit Agreement (Brookfield Property REIT Inc.), Credit Agreement (Brookfield Property REIT Inc.)

Indebtedness. ~~(a) No Credit Party~~ The Borrower shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or ~~permit~~ suffer to exist any Indebtedness, ~~except~~ except: (~~without duplication) (i~~a) Indebtedness ~~secured by purchase money security interests and Capital Leases permitted~~ in ~~clause (c) or (d)~~ respect 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~~ Letters of Credit and other ~~employee benefit plan obligations and liabilities to~~ letters of credit issued in the extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect ordinary course of ~~increasing the~~business; (Ab) ~~each Borrower shall have executed and delivered to each other Borrower~~Non-Recourse Real Estate Indebtedness; provided, 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) that at the time ~~any~~ of incurrence of such ~~intercompany loan or advance is made by any Borrower to any other Borrower~~ Indebtedness and immediately after giving effect thereto, ~~each such Borrower~~ no Default exists or could result therefrom, (c) Intercompany Indebtedness; provided that the aggregate outstanding amount of Intercompany Indebtedness that is owing to an Affiliate or a Subsidiary that is not a Wholly-Owned Subsidiary, together with the aggregate outstanding amount of Indebtedness of Subsidiaries of the type set forth in clauses (h) (provided that only the portion of Existing Indebtedness then outstanding as of the date of determination shall be ~~Solvent~~included) and (i) below shall not exceed $500,000,000 at any time; (d) Indebtedness in respect of Capitalized Leases and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.01(e); (e) Indebtedness of any Person that becomes a Subsidiary of the Borrower in an Acquisition, which Indebtedness is existing at the time such Person becomes a Subsidiary of the Borrower (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Subsidiary of the Borrower) and provided such Indebtedness is Non-Recourse Indebtedness to the Borrower; (f) Indebtedness in respect of advances or borrowings from 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 (Ei) ~~no Default or Event~~ other Indebtedness at any time outstanding; provided, (1) that at the time of ~~Default would occur~~ incurrence of such Indebtedness and ~~be continuing~~ immediately after giving effect ~~to any such proposed intercompany loan;~~ thereto, no Default exists or could result therefrom, and (~~F) in the case of any intercompany Indebtedness, (X~~2) the ~~Borrower advancing such funds shall have Borrowing Availability under its separate Borrowing Base~~ aggregate outstanding amount of Intercompany Indebtedness that is owing to an Affiliate or a Subsidiary that is not ~~less than $1,00 after giving effect to such intercompany loan~~a Wholly-Owned Subsidiary, or together with the aggregate outstanding amount of Indebtedness of Subsidiaries of the type set forth in clause (Yh) above (provided that only the ~~intercompany~~ portion of Existing Indebtedness then outstanding as of the date of determination shall be ~~a Great Northern Advance, (ix~~included) ~~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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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 clause (i) the Obligations, (ii) Indebtedness secured by a Permitted Encumbrance if the asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon shall not exceed $500,000,000 at any ~~refinancing thereof in accordance with Section 6.3(a)(v)~~time.

Appears in 2 contracts

Sources: Credit Agreement (American Financial Group Inc), Credit Agreement (American Financial Group Inc)

Indebtedness. Neither the Borrower nor any of its Restricted Subsidiaries shall directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness or Off Balance Sheet Liabilities, except: (i) the Obligations; (ii) the Transaction Costs; (iii) the Indebtedness evidenced by the Senior Subordinated Notes; (iv) 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 taxes, assessments, governmental charges and claims for labor, materials or supplies, to the extent that payment thereof is not required pursuant to Section 6.2(D); (vii) Indebtedness constituting Contingent Obligations permitted by Section 6.3(E); (viii) Indebtedness arising from intercompany loans (a) ~~No Credit Party~~ from any 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 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 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 continuing at the time of the incurrence thereof, any 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 daylight overdrafts, which will not be, and will not be deemed to be, inadvertent) drawn against insufficient funds in the ordinary course of business; and (xix) Indebtedness in connection with agreements providing for indemnification and purchase price adjustments in connection with the sale or disposition of any of the Borrower's or any Restricted Subsidiary's business, properties or assets permitted under the terms of Section 6.3(B); provided, however, neither the Borrower nor any of its Subsidiaries shall create, incur, assume or ~~permit~~ otherwise become or remain directly or indirectly liable with respect to ~~exist any Indebtedness~~such Indebtedness if all such Indebtedness plus the unfunded portion of the Aggregate Revolving Loan Commitment, ~~except~~ if funded, would cause the Borrower to exceed the limitation on Indebtedness contained in Section 4.07 of the Indenture (~~without duplication) (i) Indebtedness secured by purchase money security interests and Capital Leases permitted in clause (c~~as amended, waived or modified from time to time) 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).render

Appears in 2 contracts

Sources: Credit Agreement (Gfsi Inc), Credit Agreement (Gfsi Inc)

Indebtedness. ~~(a) No Credit Party shall~~ The Borrower will not, nor will it permit any of its Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, ~~except~~ except: (~~without duplication~~a) Indebtedness created hereunder; (b) Indebtedness existing on the 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 any extension, renewal, refinancing or replacement of any such Indebtedness so long as (i) 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 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 under the Existing Credit Agreement (other than in respect of letters of credit which, as provided in Section 2.05(m) 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 ~~secured by purchase money security interests~~ outstanding in respect of the Senior Unsecured Notes and ~~Capital Leases permitted in clause (c) or (d) of Section 6.7,~~ (ii) other unsecured Indebtedness (other than Subordinated Indebtedness); provided that 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing the (A) each Borrower following conditions 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 be satisfied with respect to such other ~~Borrowers~~ Indebtedness (each of which ~~Intercompany Notes~~ shall be fulfilled in form and substance reasonably satisfactory to ~~Agent and~~ the Administrative Agent): (A) the Net Available Proceeds of such other Indebtedness shall be ~~pledged and delivered~~ applied to ~~Agent~~ (x) prepay Loans in accordance with Section 2.10(b)(iii), (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 such Senior Unsecured Indebtedness the Net Available Proceeds of which is applied to finance one or more such Acquisitions shall not exceed 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 ~~Pledge Agreement or Security Agreement as additional collateral security for the Obligations;~~ calculation period); (B) ~~each Borrower~~ the terms of such Indebtedness shall ~~record all intercompany transactions on its books and records in a manner reasonably satisfactory~~ not provide for payment of any portion of the principal thereof prior to ~~Agent;~~ the date six months after the final maturity of the Loans hereunder; (C) ~~the obligations~~ terms in respect of ~~each Borrower under any~~ financial and other covenants, events of default and mandatory prepayments applicable to such ~~Intercompany Notes~~ Indebtedness shall be ~~subordinated to~~ no more restrictive in any material respect on the ~~Obligations~~ Borrower or any of ~~such Borrower hereunder in a manner reasonably satisfactory to Agent;~~ its Subsidiaries than the terms of the Senior Unsecured Notes; (D) at the time ~~any~~ of issuance of such ~~intercompany loan or advance is made by any Borrower to any other Borrower~~ Indebtedness, and after giving effect thereto, ~~each such~~ the Borrower shall be ~~Solvent;~~ 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 reasonable detail the computations necessary to determine such compliance (including, if applicable, computations in reasonable detail as to the satisfaction of the conditions specified in clauses (A) above); (E) at the time of such issuance, and after giving effect thereto, no Default or Event of Default ~~would occur~~ shall have occurred and be continuing ~~after giving effect to any such proposed intercompany loan~~hereunder; ~~and~~ and (F) prior to such issuance, the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the ~~case of any intercompany Indebtedness~~foregoing clauses (C), (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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (cD) and (~~iii~~E) ~~Indebtedness permitted by Section 6.3(a)(v~~(and setting forth in reasonable detail the computations necessary to determine compliance with said clause (D) ~~upon any refinancing thereof~~ and including, if applicable, computations in ~~accordance with Section 6.3(a)(v~~reasonable detail as to the satisfaction of the conditions specified in the foregoing clause (A).);

Appears in 2 contracts

Sources: Credit Agreement (Constellation Brands, Inc.), Credit Agreement (Constellation Brands, Inc.)

Indebtedness. The Borrower will not, nor will it permit any of its Subsidiaries to, create, incur or suffer to exist any Indebtedness except: (a) ~~No Credit Party shall create~~Indebtedness incurred hereunder; (b) Obligations under or in respect of (A) interest rate Swap Contracts up to an aggregate notional principal amount not to exceed at any time an amount equal to the Commitment of the Lender at such time, ~~incur, assume~~ and (B) Swap Contracts entered into to hedge existing or ~~permit to exist any Indebtedness, except (without duplication) (i) Indebtedness secured by purchase money security interests and Capital Leases permitted in clause~~ anticipated foreign exchange or commodity price exposure not for speculative purposes; (c) or Guarantees and letters of credit permitted by Section 8.02; (d) ~~of Section 6.7, (ii)~~ Indebtedness issued and outstanding on the ~~Loans and the other Obligations, (iii) deferred taxes,~~ Effective Date to the extent ~~permitted under applicable law~~set forth on Schedule 8.01 and any renewals, ~~(iv) unfunded pension fund and other employee benefit plan obligations and liabilities~~ extensions or refundings thereof in a principal amount not to exceed the ~~extent they are permitted to remain unfunded under applicable law~~amount so renewed, ~~(v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof~~ extended or ~~amendments or modifications thereto that do not have the effect of increasing the~~refunded; (Ae) ~~each~~ Indebtedness of Teamco and its Subsidiaries permitted in accordance with the terms of the Teamco Revolving Facility; (f) New Third-Party Debt so long as the Net Proceeds of such New Third-Party Debt are applied to prepay Delayed Draw Term Loans or reduce the Delayed Draw Term Loan Commitment, as applicable, in accordance with Section 2.05 and/or Section 2.06; (g) Other Indebtedness of the 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~~ its Subsidiaries not for borrowed money in an aggregate principal amount at any time ~~by such~~ outstanding not to exceed $5,000,000; (h) Indebtedness constituting an Investment permitted under Section 8.04; provided that any Indebtedness of Borrower owed 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~~ Affiliate 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements pursuant to the 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.Master Subordinated Intercompany Note; (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) Indebtedness arising from netting services, overdraft protection, cash management services, endorsements or instruments and other items for deposit in the ~~Obligations,~~ ordinary course of business; and (iij) Indebtedness ~~secured~~ consisting of the financing of insurance premiums or take-or-pay obligations of the Company or any of the Restricted Subsidiaries contained in supply arrangements, in each case, in the ordinary course of business; provided, however, that the foregoing exceptions shall not permit any Guarantees by ~~a Permitted Encumbrance if~~ the ~~asset securing such~~ Company of the Indebtedness ~~has been sold or otherwise disposed~~ of ~~in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon~~ any ~~refinancing thereof in accordance with Section 6.3(a)(v)~~Person other than any Subsidiary.

Appears in 2 contracts

Sources: Delayed Draw Term Loan Credit Agreement (Madison Square Garden Entertainment Corp.), Delayed Draw Term Loan Credit Agreement (Madison Square Garden Sports Corp.)

Indebtedness. ~~(a) No Credit Party shall create~~Create, incur, assume or ~~permit to exist~~ become or remain liable in respect of any Indebtedness, ~~except~~ except: (~~without duplication~~a) Indebtedness to the Lenders hereunder; (b) Liabilities of the Borrower and/or its Subsidiaries (other than for borrowed money) incurred in the ordinary course of its business and in accordance with customary trade practices; (c) 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 (ii) the respective principal amounts available to be drawn thereunder on the date hereof, in 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 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 Section 7.02; (g) 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 ~~secured by purchase money security interests~~ in respect of (i) taxes, assessments, governmental charges or levies and ~~Capital Leases permitted in clause (c)~~ claims for labor, materials and supplies to the extent that payment thereof shall not at the time be required to be made or ~~(d) of Section 6.7~~is being contested, (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 unfunded under applicable law, (v) existing Indebtedness described judgments or awards which have been in Disclosure Schedule (6.3) and refinancings thereof or 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 force for less than the applicable ~~Pledge Agreement~~ appeal period so long as execution is not levied thereunder or ~~Security Agreement as additional collateral security~~ in respect of which the Borrower or any Subsidiary shall in good faith be prosecuting an appeal or proceedings for ~~the Obligations; (B) each Borrower shall record all intercompany transactions on its books and records~~ review in a manner reasonably satisfactory to ~~Agent; (C)~~ the ~~obligations~~ Administrative Agent and in respect of ~~each Borrower under any such Intercompany Notes shall be subordinated to the Obligations~~ which a stay 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 execution shall have ~~Borrowing Availability under its separate Borrowing Base of not less than $1,00 after giving effect to~~ been obtained pending such ~~intercompany loan~~appeal or review and for which adequate reserves have been established in accordance with, ~~or (Y) the intercompany Indebtedness 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) No Credit Party shallrequired by, ~~directly or indirectly~~GAAP, 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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) ~~Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof~~ endorsements made in ~~accordance~~ connection with ~~Section 6.3(a)(v)~~the deposit of items for credit or collection in the ordinary course of business.

Appears in 2 contracts

Sources: Credit Agreement (Harvard Bioscience Inc), Credit Agreement (Harvard Bioscience Inc)

Indebtedness. ~~(a) No Credit Party~~ It shall not and shall not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or ~~permit~~ suffer to exist any Indebtedness, except for the following (~~without duplication~~such Indebtedness described below being referred to herein as “Permitted Indebtedness”): (a) Indebtedness under the Loan Documents or any Hedging Agreement; (b) Indebtedness outstanding prior to the Closing Date in the amount and as otherwise set forth in Schedule 8.03 and, solely with respect to the facility provided by ABN Amro as specified on Schedule 8.03, any Permitted Indebtedness Refinancing in respect of such facility; (c) guarantees of any Credit Party in respect of Indebtedness of the Credit Parties otherwise permitted hereunder; (d) intercompany Indebtedness permitted under Section 8.02(d); (e) (i) Indebtedness ~~secured by purchase money security interests~~ of the Company and ~~Capital Leases permitted~~ its Subsidiaries in ~~clause (c)~~ respect of performance, surety or ~~(d)~~ appeal bonds provided in the ordinary course of ~~Section 6.7,~~ business or (ii) unsecured Indebtedness of the ~~Loans~~ Company and its Subsidiaries in respect of performance or completion guarantees provided in the ~~other Obligations~~ordinary course of business, ~~(iii) deferred taxes~~but excluding, to in each case, Indebtedness incurred through the ~~extent~~ borrowing of money or contingent liabilities in respect thereof and provided that the aggregate amount of all Indebtedness under this Section 8.03(e), when added together with all Indebtedness consisting of performance, surety or appeal bonds and performance guarantees permitted under ~~applicable law~~Section 8.03(b), (iv) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do does not ~~have the effect of increasing the~~exceed $60,000,000 outstanding at any time; (Af) ~~each~~ Indebtedness of the Company and its Subsidiaries in respect of trade payables and accrued expenses arising in the ordinary course of business; (g) 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, so long as such Indebtedness is extinguished within five (5) Business Days of its incurrence; (h) Indebtedness which may be deemed to exist in connection with agreements providing for indemnification, purchase price adjustments and similar obligations in connection with the acquisition or disposition of assets in accordance with the requirements of this Agreement; (i) Indebtedness of the Borrower ~~shall have executed~~ and ~~delivered~~ its Subsidiaries evidenced by Capitalized Lease Obligations and purchase money Indebtedness, in an aggregate principal amount not to ~~each other Borrower, on the Closing Date, a demand note (collectively, the “Intercompany Notes”) to evidence any such intercompany Indebtedness owing~~ exceed $2,000,000 at any time ~~by such Borrower~~ outstanding; (j) Indebtedness of ▇▇▇▇▇▇ Europe under (i) a revolving credit facility in an amount not to ~~such other Borrowers which Intercompany Notes shall be~~ exceed €1,000,000 and (ii) a letter of credit facility in ~~form and substance reasonably satisfactory~~ an amount not to ~~Agent and shall be pledged and delivered~~ exceed €5,000,000; (k) Indebtedness of ▇▇▇▇▇▇ Shanghai in an aggregate amount not to ~~Agent pursuant to the applicable Pledge Agreement or Security Agreement~~ exceed $2,000,000; and (l) so long 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 then exists or would ~~occur and be continuing after giving effect to any such proposed intercompany loan; and (F) in the case of any intercompany Indebtedness~~result therefrom, (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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the extent permitted under Section 6.17 and (xi) unsecured additional Indebtedness not otherwise ~~referred to~~ permitted hereunder in ~~this Section 6.3 not exceeding $1,000,000 in~~ an aggregate principal amount ~~outstanding~~ not to exceed $1,000,000 at any time ~~for all Credit Parties~~outstanding. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

Appears in 2 contracts

Sources: Credit Agreement (Global Power Equipment Group Inc/), Credit Agreement (Global Power Equipment Group Inc/)

Indebtedness. ~~(a) No Credit Party shall~~ The Company will not create, incur, assume or ~~permit~~ otherwise become liable for or suffer to exist any Indebtedness, ~~except (without duplication)~~ other than: (i) Indebtedness ~~secured by purchase money security interests and Capital Leases permitted in clause (c)~~ of the Company to the Lenders or ~~(d) of Section 6.7,~~ the Agent hereunder; (ii) Indebtedness of the ~~Loans~~ 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 ~~Obligations~~reasonable amount paid, and fees and expenses reasonably incurred, in connection with such extension, renewal or refinancing and by an amount equal to any existing unused commitments thereunder; (iii) ~~deferred taxes~~unsecured trade, to utility or non-extraordinary accounts payable arising in the ~~extent permitted under applicable law,~~ ordinary course of business; (iv) ~~unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law,~~ [intentionally omitted]; (v) ~~existing~~ Purchase Money Indebtedness; provided that the material terms and conditions of any Purchase Money Indebtedness ~~described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have~~ relating to the ~~effect of increasing the (A) each Borrower~~ Michigan Facility 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 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 Termination Date and as to which no principal is payable until after the Termination Date, been (x) ~~Indebtedness under Hedging Agreements~~ disclosed to the ~~extent permitted under Section 6.17~~ Agent prior to the Company’s incurrence of such Indebtedness 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 (xiy) ~~unsecured Indebtedness not otherwise referred~~ consented to in ~~this Section 6.3~~ writing by the Agent (such consent not ~~exceeding $1,000,000~~ to be unreasonably withheld, delayed or conditioned); (vi) cash management agreements in the ordinary course of business; (vii) Indebtedness arising from judgments or decrees in an aggregate principal amount outstanding at any time ~~for all Credit Parties.~~not to exceed $100,000; (bviii) ~~No Credit Party shall, directly~~ 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 ~~indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable~~ to fund research and development efforts specified in ~~respect of any Indebtedness, other than~~ such grants; (~~i) the Obligations, (ii~~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, currency swaps and similar financial products entered into or obtained in the ordinary course of business; (xv) Subordinated Debt; (xvi) Indebtedness of the Company to any of its wholly owned Subsidiaries; (xvii) Indebtedness of the Company pursuant to a working capital facility secured by a ~~Permitted Encumbrance if~~ first priority security interest in the ~~asset securing~~ Company’s Accounts (as such ~~Indebtedness has been sold or otherwise disposed of~~ term is defined in ~~accordance with Sections 6.8(b) or (c~~the Code) and Inventory (~~iii~~as such term is defined in the Code); and (xviii) additional Indebtedness ~~permitted by Section 6.3(a)(v) upon~~ of the Company not otherwise described above in an aggregate principal amount not to exceed $2,000,000 at any ~~refinancing thereof in accordance with Section 6.3(a)(v)~~time outstanding.

Appears in 2 contracts

Sources: Loan Agreement (Marrone Bio Innovations Inc), Loan Agreement (Marrone Bio Innovations Inc)

Indebtedness. ~~(a) No Credit Party shall~~ The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, contract, create, incur, assume or ~~permit~~ suffer to exist any Indebtedness, ~~except~~ except: (~~without duplication~~a) the Obligations of the Borrower and its Restricted Subsidiaries owing to the Administrative Agent and the Lenders (and their Affiliates); (b) intercompany Indebtedness among the Borrower and its Restricted Subsidiaries to the extent permitted by Section 6.15; (c) (i) ~~Indebtedness secured by~~ purchase money ~~security interests~~ Indebtedness of the Borrower and ~~Capital Leases permitted~~ its Restricted Subsidiaries, including any such Indebtedness assumed in ~~clause (c) or (d) of Section 6.7~~connection with a Permitted Acquisition, (ii) Capitalized Lease Obligations of the ~~Loans~~ Borrower and ~~the other Obligations~~its Restricted Subsidiaries, (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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 including any such ~~intercompany Indebtedness owing at any time by such Borrower to such other Borrowers which Intercompany Notes shall be~~ obligations assumed 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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 connection with a Permitted ~~Encumbrance if the asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c)~~ 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 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 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 otherwise permitted under this Section ~~6.3(a)(v~~6.12; (i) ~~upon~~ Indebtedness incurred in connection with any ~~refinancing thereof in accordance with~~ sale/leaseback transaction permitted pursuant to Section ~~6.3(a)(v~~6.14(e) hereof; (j) Indebtedness of Non-Guarantor Subsidiaries not otherwise permitted by this Section; provided that the aggregate 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 Section.

Appears in 2 contracts

Sources: Term Loan Agreement (Cliffs Natural Resources Inc.), Bridge Credit Agreement (Cliffs Natural Resources Inc.)

Indebtedness. ~~(a) No Credit Party shall~~ None of the Borrower or any of the Subsidiaries will create, incur, assume or permit to exist any Indebtedness, ~~except~~ other than: (~~without duplication) (i~~a) Indebtedness ~~secured~~ in respect of the Obligations; (b) Indebtedness incurred in connection with Permitted Acquisitions or other Investment permitted by ~~purchase money security interests and Capital Leases permitted in clause~~ Section 8.5 (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 unfunded under applicable law, (v) including existing Indebtedness ~~described~~ of a Person acquired in ~~Disclosure Schedule (6.3) and refinancings thereof~~ connection with a Permitted Acquisition or 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~~ permitted Investment, provided such Indebtedness ~~owing~~ was not incurred in anticipation of such acquisition); provided, however, that the aggregate amount of all such Indebtedness, at any one time outstanding, shall not exceed $75,000,000; provided, further, that the obligors in respect of any such Indebtedness assumed in connection with a Permitted Acquisition or other Investment permitted by ~~such Borrower to such other Borrowers which Intercompany Notes~~ Section 8.5 shall be solely the entities acquired in ~~form and substance reasonably satisfactory to Agent~~ such Permitted Acquisition or such permitted Investment; provided, further, that any such Indebtedness incurred (rather than assumed) in connection with Permitted Acquisitions or other Investment permitted by Section 8.5 shall be solely Indebtedness of the Loan Parties (including any entities that will become Loan Parties in connection with such Permitted Acquisition or such permitted Investment) and shall be ~~pledged~~ unsecured 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~~ Administrative Agent and 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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.Required Lenders; (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) Indebtedness existing as of the Closing Date which is identified in Schedule 8.2(c) and Permitted Refinancings thereof; (~~iii~~d) Indebtedness ~~permitted~~ incurred by ~~Section 6.3(a)(v) upon~~ Borrower or any ~~refinancing thereof~~ of its Subsidiaries arising from agreements providing for indemnification or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of Borrower or any such Subsidiary pursuant to such agreements and Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in ~~accordance with Section 6.3(a)(v).~~the ordinary course of business and Indebtedness constituting guaranties in the ordinary course of business of the obligations 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. ~~(a) No Credit Party~~ Neither the Company nor any of its Subsidiaries shall directly or indirectly create, incur, assume or ~~permit~~ otherwise become or remain directly or indirectly liable with respect to ~~exist~~ any Indebtedness, ~~except (without duplication)~~ except: (i) Indebtedness ~~secured~~ evidenced by ~~purchase money security interests and Capital Leases permitted in clause (c) or (d) of Section 6.7,~~ the Notes; (ii) the ~~Loans~~ Bank Secured Obligations in an aggregate principal amount not to exceed the Permitted Senior Additional Indebtedness and Permitted Refinancing Indebtedness in respect thereof, subject to the ~~other Obligations,~~ terms of the Subordination Agreement set forth in clause (a) of the definition of Subordination Agreements; (iii) ~~deferred taxes~~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 (a) from any Subsidiary to the Company or any wholly-owned Subsidiary or (b) from the Company to any wholly-owned Subsidiary; provided, that such Indebtedness shall subordinated to the Notes on subordination terms set forth in Exhibit 10.3; (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 to the extent permitted under ~~applicable law,~~ the Subordination Agreement set forth in clause (iva) ~~unfunded pension fund and other employee benefit plan obligations and liabilities to~~ of the extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing thedefinition thereof; (Aviii) ~~each Borrower shall have executed and delivered to each other Borrower, on~~ secured or unsecured purchase money Indebtedness (including Capitalized Leases) incurred by the Company or any of its Subsidiaries after the Closing ~~Date~~Date to finance the acquisition of fixed assets, ~~a demand note~~ if (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; (Da) at the time ~~any~~ of such ~~intercompany loan or advance is made by any Borrower to any other Borrower and after giving effect thereto~~incurrence, ~~each such Borrower shall be Solvent; (E)~~ no Default or Event of Default has occurred and is continuing or would ~~occur~~ result from such incurrence, (b) such Indebtedness has a scheduled maturity and ~~be continuing after giving effect to any~~ is not due on demand, (c) such ~~proposed intercompany loan; and~~ Indebtedness does not exceed the lower of the fair market value or the cost of the applicable fixed assets on the date acquired, (Fd) such Indebtedness does not exceed $1,500,000 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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.~~ time, and (be) ~~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 asset~~ Lien securing such Indebtedness ~~has been sold or otherwise disposed of in accordance with Sections 6.8(b~~is permitted under section 10.3(c) or (~~c) and~~ such Indebtedness being referred to herein as "Permitted Purchase Money Indebtedness"); (~~iii~~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 ~~Section 6.3(a)(v~~any Subsidiary; (xiii) ~~upon~~ Indebtedness arising in connection with the Company's or any ~~refinancing thereof~~ of its Subsidiaries' credit card programs maintained with any of the Bank Lenders; and (xiv) additional unsecured Indebtedness in ~~accordance with Section 6.3(a)(v)~~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. ~~(a) No Credit Party~~ Neither the Borrower nor any of its Subsidiaries shall directly or indirectly create, incur, assume or ~~permit~~ otherwise become or remain directly or indirectly liable with respect to ~~exist~~ any Indebtedness, ~~except (without duplication) (i)~~ except: the Secured Obligations; Permitted Existing Indebtedness and Permitted Refinancing Indebtedness; Indebtedness in respect of obligations secured by ~~purchase money security interests~~ Customary Permitted Liens; Indebtedness constituting Contingent Obligations permitted by Section 7.3(E); Indebtedness arising from intercompany loans and ~~Capital Leases permitted in clause~~ advances (a) from any Subsidiary of the Borrower to the Borrower or any other Loan Party, (b) from the Borrower to any wholly-owned Subsidiary of the Borrower or (c) from the Borrower to Mandara U.S. or ~~(d) of Section 6.7, (ii) the Loans and the other Obligations, (iii) deferred taxes,~~ Mandara Asia if such Indebtedness is evidenced by an intercompany note which has been pledged to the ~~extent permitted under applicable law~~Administrative Agent for the benefit of the Holders of Secured Obligations; provided, ~~(iv) unfunded pension fund and other employee benefit plan obligations and liabilities to~~ that if the ~~extent they are permitted to remain unfunded under applicable law, (v) existing~~ Borrower or any Subsidiary Guarantor is the obligor on any such Indebtedness described in ~~Disclosure Schedule~~ this clause (~~6.3) and refinancings thereof or 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~~v), ~~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 expressly subordinate to the payment in ~~form and substance~~ full in cash of the Secured Obligations on terms 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 Administrative Agent; secured or unsecured purchase money Indebtedness (Cincluding, without limitation, Capitalized Leases) incurred by the ~~obligations~~ Borrower or any of ~~each Borrower under any such Intercompany Notes shall be subordinated~~ its Subsidiaries after the Closing Date to finance the ~~Obligations~~ acquisition of ~~such Borrower hereunder in a manner reasonably satisfactory to Agent;~~ fixed assets, if (D1) at the time ~~any~~ of such ~~intercompany loan or advance is made by any Borrower to any other Borrower and after giving effect thereto~~incurrence, ~~each such Borrower shall be Solvent; (E)~~ no Default or ~~Event~~ 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 ~~Default would occur and be continuing after giving effect to any~~ the fair market value or the cost of the applicable fixed assets on the date acquired, (4) such ~~proposed intercompany loan; and (F)~~ Indebtedness does not exceed $3,000,000 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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.~~ 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"); 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) ~~No Credit Party shall, directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable~~ 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 Indebtedness, other than (i) the Obligations, (ii) Indebtedness secured by a Permitted Encumbrance if the asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v)time outstanding not exceeding $3,000,000.

Appears in 2 contracts

Sources: Credit Agreement (Steiner Leisure LTD), Credit Agreement (Steiner Leisure LTD)

Indebtedness. ~~(a) No Credit Party shall create~~Create, incur, assume or ~~permit~~ suffer to exist any Indebtedness, ~~except~~ except: (~~without duplication~~a) Permitted Subordinated Indebtedness; (ib) Indebtedness ~~secured by purchase money security interests and Capital Leases permitted in clause~~ of the Loan Parties under the Loan Documents; (c) or Indebtedness outstanding on the Closing Date and listed on Schedule 7.03 and any Permitted Refinancing thereof; (d) Guarantees by a Restricted Company in respect of Indebtedness of another Restricted Company otherwise permitted hereunder; provided that (x) no Guarantee by any Restricted Subsidiary of any Permitted Subordinated Indebtedness (or any 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 ~~6.7,~~ 6.12 and (iiy) if the ~~Loans and~~ Indebtedness being Guaranteed is subordinated to 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 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 ~~Borrower hereunder~~ Indebtedness; (e) Indebtedness of a Restricted Company that constitutes an Investment permitted by Section 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 ~~manner reasonably satisfactory~~ 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 the Cash Management Practices; (n) obligations of the Consolidated Companies with respect to ~~Agent~~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; (Dq) ~~at the time any such intercompany loan~~ obligations in respect of bid, performance, stay, customs, appeal and surety bonds and performance and completion guarantees provided by a Restricted Company or ~~advance is made by any Borrower to any other Borrower and after giving effect~~ obligations in respect of letters of credit related thereto, in 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)~~ case in the ~~case~~ ordinary course of ~~any intercompany Indebtedness,~~ business or consistent with past practice; (Xr) Guarantees by the ~~Borrower advancing such funds shall have Borrowing Availability~~ Company of Indebtedness permitted under ~~its separate Borrowing Base of not less than $1,00 after giving effect to such intercompany loan, or~~ this Section 7.03; (~~Y) the intercompany Indebtedness shall be a Great Northern Advance, (ix~~s) Indebtedness ~~owing to Affiliates~~ in respect of Swap Contracts entered into in the ordinary course of business 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 Termination Date and as to which no principal is payable until after the Termination Date,~~ for speculative purposes; (xt) Indebtedness under Hedging Agreements to the 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) 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~~letter of credit or bankers' acceptance supporting trade payables, ~~other than~~ 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 and secured by 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 ~~Obligations~~cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition, (ii) ~~Indebtedness secured by a Permitted Encumbrance if the asset securing~~ such Indebtedness ~~has been sold~~ is created and any Lien attaches to such property concurrently with or ~~otherwise disposed~~ within forty-five (45) days of ~~in accordance with Sections 6.8(b) or (c)~~ the acquisition thereof, and (iii) such Lien does not at any time encumber any property other than the property financed by such Indebtedness; (w) Indebtedness (i) of the type described in clause (e) of the definition thereof subject to Liens permitted under Section 7.01 or (ii) secured by ~~Section 6.3(a)(v~~Liens permitted under Sections 7.01(e)(ii), 7.01(e)(iii), 7.01(f), or 7.01(r); (x) ~~upon~~ other Indebtedness of Restricted Companies in an aggregate principal amount not to exceed the greater of (i) 10% of Total Consolidated Assets and (ii) $300,000,000 at any ~~refinancing thereof~~ time outstanding; (y) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in ~~accordance with Section 6.3(a)(v).~~clauses (a) through (x) above;

Appears in 2 contracts

Sources: Credit Agreement (Fidelity National Information Services, Inc.), Credit Agreement (Fidelity National Information Services, Inc.)

Indebtedness. (a) ~~No Credit Party shall create~~the Borrower will not, ~~incur~~and will not permit any of its Restricted Subsidiaries to, ~~assume~~ directly or ~~permit to exist~~ indirectly, Incur any Indebtedness (including Acquired Indebtedness~~, except (without duplication) (i) Indebtedness secured by purchase money security interests and Capital Leases permitted in clause (c~~) or issue any shares of Disqualified Stock and the Borrower will not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, that the Borrower and any Restricted Subsidiary may Incur Indebtedness (dincluding Acquired Indebtedness) or issue shares of ~~Section 6.7~~Disqualified Stock and any Restricted Subsidiary may issue shares of Preferred Stock, in each case if the Fixed Charge Coverage Ratio of the Borrower and its 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 (iiincluding 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; provided, further, that the aggregate amount of Indebtedness (including Acquired Indebtedness) that may be Incurred and Disqualified Stock or Preferred Stock that may be issued pursuant to the foregoing by Restricted Subsidiaries that are not Guarantors of the Loans shall not exceed the greater of (x) $500,000,000 and (y) 26.0% of Four Quarter Consolidated EBITDA at the ~~other Obligations~~time of Incurrence, at any one time outstanding, on a Pro Forma Basis (~~iii) deferred taxes~~such Indebtedness Incurred and Disqualified Stock and Preferred Stock issued, 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing the“Ratio Debt”). (Ab) ~~each Borrower~~ In addition, the following shall ~~have executed and delivered to each other Borrower, on the Closing Date, a demand note~~ be permitted (collectively, the “~~Intercompany Notes~~Permitted Debt”) 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~~1) 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 Incurrence 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~~ or its ~~separate Borrowing Base~~ Restricted Subsidiaries of ~~not less than $1,00 after giving effect to such intercompany loan, or~~ (Yi) the intercompany Indebtedness 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness arising under ~~Hedging Agreements to~~ the 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) 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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon Loan Documents including any refinancing thereof in accordance with Section ~~6.3(a)(v~~2.19, (y) Indebtedness of the Loan Parties evidenced by Refinancing Notes and any Permitted Refinancing thereof (or successive Permitted Refinancings thereof) and (z) Indebtedness of the Loan Parties evidenced by Incremental Equivalent Debt and any Permitted Refinancing thereof (or successive Permitted Refinancings thereof)., and (ii) the ABL Credit Agreement and Guarantees thereof and the issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof) up to an aggregate amount not to exceed at any one time outstanding, the greater of (x) $1,400,000,000 and (y) the Borrowing Base as of the date of such Incurrence; (2) the Incurrence by the Borrower and the Guarantors of Indebtedness represented by (A) the Closing Date Senior Secured Notes and the Guarantees thereof, as applicable (and any exchange notes and Guarantees thereof) and (B) the Senior Notes (other than the Closing Date Senior Secured Notes), and in each case, the Guarantees thereof, as applicable (and any exchange notes and Guarantees thereof);

Appears in 2 contracts

Sources: Credit Agreement (CommScope Holding Company, Inc.), Term Loan Credit Agreement (CommScope Holding Company, Inc.)

Indebtedness. ~~(a) No Credit Party shall~~ Such Obligor will not, and will not permit any of its Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, ~~except~~ whether directly or indirectly, except: (~~without duplication~~a) the Obligations; (b) Indebtedness owing under the Non-Convertible Credit Facility 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 $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) Indebtedness existing on the date hereof and set forth in Schedule 9.01; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to Administrative Agent; (e) accounts 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, unless contested in good faith by appropriate proceedings and 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 of any other Obligor in an aggregate principal amount not exceeding $1,000,000 (or the Equivalent Amount in other currencies) at any time; (i) ~~Indebtedness secured by purchase money security interests~~ normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and ~~Capital Leases permitted in clause (c) or (d) of Section 6.7~~proceeds thereof and books and records related thereto, and (ii) the ~~Loans and~~ aggregate outstanding principal amount of such Indebtedness does not exceed $2,000,000 (or the Equivalent Amount in other ~~Obligations~~currencies) at any time; (j) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (~~iii~~including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) ~~deferred taxes~~under guaranties or letters of credit, to surety bonds or performance bonds securing the ~~extent~~ performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under ~~applicable law~~Section 9.03(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, ~~(iv) unfunded pension fund~~ overdraft protections and other ~~employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law,~~ similar cash management products for deposit accounts; (vm) ~~existing~~ unsecured Indebtedness of any Obligor not otherwise described in ~~Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do~~ this Section 9.01, in an aggregate amount 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~~ exceed at any time ~~by such~~ $5,000,000; provided that Borrower ~~to such other Borrowers which Intercompany Notes~~ shall ~~be in form and substance reasonably satisfactory to~~ give the Administrative Agent ~~and shall be pledged and delivered to Agent pursuant~~ written notice prior 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 incurrence 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~~Indebtedness under this Section 9.01(m) ~~at the time any such intercompany loan or advance is made by any Borrower~~ owing to any ~~other~~ director or executive officer of Borrower ~~and after giving effect thereto, each such Borrower shall be Solvent~~or any of its Affiliates; and (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 shall be a Great Northern Advance, (ixn) Indebtedness ~~owing to Affiliates and holders of Stock of such Credit Party that constitutes Subordinated Debt, is unsecured, interest on which is not payable~~ approved in ~~cash until after~~ advance in writing by the Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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 PartiesRequired Lenders. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

Appears in 2 contracts

Sources: Senior Secured Convertible Credit Agreement (Kadmon Holdings, LLC), Senior Secured Convertible Credit Agreement (Kadmon Holdings, LLC)

Indebtedness. ~~(a) No Credit Party shall~~ Borrower will not create, incur, assume or ~~permit~~ otherwise become liable for or suffer to exist any Indebtedness, ~~except (without duplication)~~ whether secured or unsecured, other than: (i) Indebtedness ~~secured by purchase money security interests and Capital Leases permitted in clause (c) or (d)~~ of ~~Section 6.7,~~ Borrower to Lender hereunder; (ii) accounts payable to trade creditors for goods and services and current operating liabilities (not the ~~Loans~~ result of the borrowing of money) incurred in the ordinary course of Borrower’s business in accordance with customary terms and paid within the ~~other Obligations~~specified time, unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAP; (iii) ~~deferred taxes~~Indebtedness directly related to the acquisition by Borrower of a product or product line; provided that such Indebtedness is owed to the seller of such product or product line or to a Person financing the acquisition of the same, but only to the extent ~~permitted under applicable law~~the portion of the purchase price for the assets thus acquired is financed by Indebtedness; and if such Indebtedness is secured, then such Indebtedness shall be secured solely by the assets for which the acquisition financing was provided; (iv) ~~unfunded pension fund and other employee benefit plan obligations and liabilities to~~ Indebtedness consisting of a refinancing of the ~~extent they are~~ Indebtedness permitted ~~to remain unfunded under applicable law,~~ in subsection (iii) above; provided that the principal amount of such Indebtedness that is being refinanced does not increase; (v) ~~existing~~ Indebtedness ~~described~~ for capital leases as determined in ~~Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto~~ accordance with GAAP not to exceed that ~~do not~~ amount allocated for capital leases in the annual budget of Borrower, which shall have been approved by the ~~effect~~ Board of ~~increasing the~~Directors of Borrower; (Avi) ~~each Borrower shall have executed and delivered to each~~ Indebtedness arising from (i) the honoring by a bank or other ~~Borrower~~financial institution of a check, on draft or similar instrument against insufficient funds in the ~~Closing Date~~ordinary course of business; provided, ~~a demand note~~ however, that such Indebtedness is extinguished within ten (~~collectively, the “Intercompany Notes”~~10) 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 ObligationsBusiness Days of its occurrence; (Bii) 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 bankers acceptances, performance, surety, judgment, appeal or ~~advance is made by any Borrower to any other Borrower and after giving effect thereto~~similar bonds, ~~each such Borrower shall be Solvent; (E) no Default~~ instruments or ~~Event of Default would occur and be continuing after giving effect to any such proposed intercompany loan~~obligations; and (Fiii) any customary cash management arrangements; (vii) Indebtedness in respect of endorsements made in connection with the deposit of items for credit or collection in the ~~case~~ ordinary course of ~~any intercompany Indebtedness~~business; (viii) Indebtedness represented by property, liability and workers’ compensation insurance (X) which may be in the ~~Borrower advancing such funds shall have Borrowing Availability under its separate Borrowing Base~~ form of ~~not less than $1,00 after giving effect to such intercompany loan, or (Y) the intercompany Indebtedness shall be a Great Northern Advance,~~ letters of credit); and (ix) Indebtedness ~~owing to Affiliates and holders~~ set forth on Schedule 8(l), or Indebtedness consisting of ~~Stock~~ a refinancing of the Indebtedness set forth on Schedule 8(l); provided that the principal amount of such ~~Credit Party~~ Indebtedness that ~~constitutes Subordinated Debt,~~ is ~~unsecured, interest on which is~~ being refinanced does not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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 Partiesincrease. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

Appears in 2 contracts

Sources: Loan and Security Agreement (Ligand Pharmaceuticals Inc), Loan and Security Agreement (Viking Therapeutics, Inc.)

Indebtedness. ~~(a) No Credit Party shall create~~Create, issue, incur, ~~assume~~ assume, become liable in respect of or ~~permit~~ suffer to exist any Indebtedness, ~~except~~ except: (~~without duplication) (i~~a) Indebtedness ~~secured by purchase money security interests and Capital Leases permitted in clause~~ under the Loan Documents; (cb) ~~or (d) of Section 6.7, (ii)~~ Indebtedness outstanding on the ~~Loans and the other Obligations, (iii) deferred taxes~~Closing Date and, to the extent ~~permitted under applicable law~~the principal amount of any such Indebtedness is in excess of $5,000,000, listed on Schedule 7.2 and any Permitted Refinancing Indebtedness in respect thereof; (ivc) ~~unfunded pension fund~~ Permitted Incremental Equivalent Debt and ~~other employee benefit plan obligations~~ Permitted External Refinancing Debt and ~~liabilities~~ any Permitted Refinancing Indebtedness in respect thereof; provided that it shall be a condition precedent to the ~~extent they are permitted to remain unfunded under applicable law,~~ effectiveness of any Permitted Incremental Equivalent Debt that (vi) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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~~ the Aggregate Incremental Amount does not exceed the Incremental Cap (provided that no such ~~Borrower shall~~ unsecured indebtedness may be ~~Solvent;~~ incurred under the Ratio Incremental Amount), (Eii) no Default or Event of Default ~~would occur~~ shall have occurred and be continuing ~~after giving effect~~ immediately prior 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 or immediately after giving effect to such ~~intercompany loan~~Permitted Incremental Equivalent Debt, or (Yiii) 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 Restricted Subsidiary existing or arising under any Swap Agreement, provided that such obligations are entered into by such Person in the ordinary course of business and not for purposes of speculation or 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 and Factoring Indebtedness plus (B) Indebtedness (including Indebtedness under Capital Lease Obligations, Synthetic Lease Attributed Indebtedness and purchase money obligations but excluding Indebtedness arising under Capital Lease Obligations entered into in connection with a Sale and Leaseback Transaction permitted under Section 7.5(g)) incurred to provide all or a portion of the purchase price (or cost of construction or acquisition), in each case, for capital assets and refinancings, refundings, renewals or extensions thereof, provided that the aggregate principal amount of all such Indebtedness incurred under clauses (A) and (B) of this Section 7.2(f)(i) shall not at any time exceed the greater of (x) $700,000,000 and (y) 15.50% of Consolidated Total Assets of the Parent Borrower and its Restricted Subsidiaries as of such date; and (ii) Indebtedness arising under Capital Lease Obligations entered into in connection with a Sale and Leaseback Transaction permitted under Section 7.5(g) and any Permitted Refinancing Indebtedness in respect thereof; (g) Indebtedness under the Albuquerque IRB Financing in an aggregate principal amount not to exceed $100,000 and any Permitted Refinancing Indebtedness in respect thereof. (h) other unsecured Indebtedness; provided that (i) no Default or Event of Default shall exist immediately before or immediately after giving effect thereto on a pro forma basis, (ii) the Consolidated Total Leverage Ratio as of the last day of the fiscal quarter of the Parent Borrower 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) the final maturity date of any such Indebtedness shall be ~~a Great Northern Advance~~no earlier than six months following the Maturity Date, except in the case of customary high-yield bridge loans which, subject to customary conditions (ixincluding 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 Maturity Date and (iv) ~~Indebtedness owing to Affiliates and holders of Stock~~ the terms of such ~~Credit Party~~ Indebtedness shall not provide for any scheduled repayment, mandatory redemption, sinking fund obligations or other payment (other than periodic interest payments) prior to the date that ~~constitutes Subordinated Debt,~~ is ~~unsecured, interest on which is not payable in cash until after~~ six months following the ~~Termination Date and as to which no principal is payable until after the Termination~~ Maturity Date, other than customary offers to purchase upon a change of control, asset sale or casualty or condemnation event and customary acceleration rights upon an event of default; provided, further, 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 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 ~~under Hedging Agreements to the 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~~ 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 for all Credit Parties. (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, and (ii) Indebtedness ~~secured by~~ 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 ~~Permitted Encumbrance if~~ Restricted Subsidiary on or after the ~~asset securing~~ Closing Date; provided that (A) such Indebtedness ~~has~~ 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 ~~sold~~ 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 ~~otherwise disposed~~ any portion thereof) meets the criteria of more than one of the categories of permitted Indebtedness described in ~~accordance~~ 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 ~~Sections 6.8(b~~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 (cas relevant) of the above clauses (or any portion thereof) and such item of Indebtedness (~~iii~~or any portion thereof) shall be treated as having been incurred or existing pursuant to only such clause or clauses (or any portion thereof); provided that all Indebtedness ~~permitted by~~ incurred hereunder will, at all times, be treated as incurred under Section ~~6.3(a)(v~~7.2(a) ~~upon any refinancing thereof in accordance with~~ and the Indebtedness outstanding under the Senior Notes will, at all times, be treated as incurred under Section ~~6.3(a)(v~~7.2(n).

Appears in 2 contracts

Sources: Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.)

Indebtedness. ~~(a) No Credit Party~~ Neither the Borrower nor any of its Subsidiaries shall directly or indirectly create, incur, assume or ~~permit~~ otherwise become or remain directly or indirectly liable with respect to ~~exist~~ any Indebtedness, ~~except (without duplication)~~ except: (i) ~~Indebtedness secured by purchase money security interests and Capital Leases permitted in clause (c) or (d) of Section 6.7,~~ the Secured Obligations; (ii) ~~the Loans~~ Permitted Existing Indebtedness and ~~the other Obligations,~~ Permitted Refinancing Indebtedness in respect thereof; (iii) ~~deferred taxes, to the extent permitted under applicable law,~~ Indebtedness in respect of obligations secured by Customary Permitted Liens; (iv) ~~unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are~~ Indebtedness constituting Contingent Obligations permitted ~~to remain unfunded under applicable law,~~ by Section 7.3(E); (v) ~~existing~~ subject to the terms of Section 7.3(Q), Indebtedness ~~described~~ 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 ~~Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have~~ full in cash of the ~~effect of increasing the~~Secured Obligations on terms satisfactory to the Administrative Agent; (Avi) ~~each~~ 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 ~~shall have executed and delivered to each other Borrower, on~~ or any of its Subsidiaries after the Closing ~~Date~~Date to finance the acquisition of fixed assets, ~~a demand note~~ if (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; (Da) at the time ~~any~~ of such ~~intercompany loan or advance is made by any Borrower to any other Borrower and after giving effect thereto~~incurrence, ~~each such Borrower shall be Solvent; (E)~~ no Default or ~~Event of~~ Unmatured Default has occurred and is continuing or would ~~occur and be continuing after giving effect to any~~ result from such ~~proposed intercompany loan; and (F) in the case of any intercompany Indebtedness~~incurrence, (Xb) ~~the Borrower advancing~~ such ~~funds shall have Borrowing Availability under its separate Borrowing Base of~~ Indebtedness has a scheduled maturity and is not ~~less than $1,00 after giving effect to such intercompany loan, or (Y) the intercompany Indebtedness shall be a Great Northern Advance~~due on demand, (ixc) such Indebtedness ~~owing to Affiliates and holders~~ does not exceed the lower of ~~Stock~~ the fair market value or the cost of ~~such Credit Party that constitutes Subordinated Debt, is unsecured, interest~~ the applicable fixed assets on ~~which is not payable in cash until after~~ the ~~Termination Date and as to which no principal is payable until after the Termination Date~~date acquired, (xd) such Indebtedness ~~under Hedging Agreements to the extent permitted under Section 6.17 and (xi) unsecured Indebtedness~~ does not ~~otherwise referred to in this Section 6.3 not exceeding~~ exceed $1,000,000 in the aggregate principal amount outstanding at any ~~time for all Credit Parties.~~ time, and (be) ~~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 asset~~ Lien securing such Indebtedness ~~has been sold or otherwise disposed of in accordance with Sections 6.8(b~~is permitted under Section 7.3(C) or (~~c) and~~ such Indebtedness being referred to herein as "PERMITTED PURCHASE MONEY INDEBTEDNESS"); (~~iii~~viii) Indebtedness with respect to surety, appeal and performance bonds obtained by the Borrower or any 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 unsecured and is subordinated to the Obligations on terms reasonably acceptable to the Administrative Agent (including, without limitation those with respect to amount, maturity (which shall not be prior to six (6) months after the Commitment Termination Date), amortization, interest rate, premiums, fees, covenants, subordination, events of default and remedies); (x) Indebtedness evidenced by the Subordinated Notes and Permitted Refinancing Indebtedness in respect thereof; (xi) guaranties by the Borrower of Indebtedness permitted to be incurred by ~~Section 6.3(a)(v~~any Subsidiary; (xii) ~~upon~~ Indebtedness arising in connection with the Borrower's or any ~~refinancing thereof~~ of its Subsidiaries' credit card programs maintained with any of the Lenders; and (xiii) additional unsecured Indebtedness in ~~accordance with Section 6.3(a)(v)~~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. ~~(a) No Credit Party shall~~ The Borrower will not create, incur, assume or 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 (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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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) than in the case of ~~any intercompany Indebtedness, (X)~~ either the Borrower ~~advancing~~ or any Material Subsidiary (it being understood that this Section 9.2 shall not apply to any Subsidiary of the Borrower for so long as such ~~funds shall have Borrowing Availability under its separate Borrowing Base~~ Subsidiary is not a Material Subsidiary): (i) accrued expenses, current trade or other accounts payable and other current liabilities arising in the ordinary course of business and not ~~less than $1,00 after giving effect to such intercompany loan~~incurred through the borrowing of money, ~~or (Y)~~ provided that the ~~intercompany Indebtedness~~ same 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements paid when due except to the extent ~~permitted under Section 6.17~~ being contested in good faith 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.~~by appropriate proceedings; (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~~ loans and advances by ~~a Permitted Encumbrance if~~ the ~~asset securing~~ 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 ~~Indebtedness has been sold~~ loan or ~~otherwise disposed~~ advance to the Borrower is subordinated in right and time of ~~in accordance with Sections 6.8(b) or (c) and~~ payment to the Obligations; (iii) Indebtedness ~~permitted~~ of the Borrower and its Subsidiaries of the type described in, and secured by Liens of the types described in, clause (vi) of Section ~~6.3(a)(v~~9.3, in an aggregate principal amount at all times in compliance with the limitation set forth in such clause; (iv) ~~upon~~ 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 ~~refinancing thereof~~ 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 6.11(a) or (b); (viii) Indebtedness set forth on Schedule 9.2; and (ix) unsecured Indebtedness (other than Indebtedness specified in ~~accordance with Section 6.3(a)(v)~~clauses (i) through (viii) above and other than Indebtedness of the Parent or Borrower) in an aggregate principal amount not exceeding $3,000,000 at any time outstanding.

Appears in 2 contracts

Sources: Credit Agreement (Chartwell Re Corp), Credit Agreement (Chartwell Re Holdings Corp)

Indebtedness. Incur any Indebtedness (including Acquired Indebtedness); provided, however, that any Obligor may Incur Indebtedness if the Indebtedness is any of the following types: (a~~) No Credit Party shall create, incur, assume or permit to exist any Indebtedness, except (without duplication~~) (i) Guarantee Obligations of any Obligor of Indebtedness ~~secured~~ of any Obligor so long as the Incurrence of such Indebtedness is permitted under the terms hereof or (ii) without limiting the covenants set forth in Section 7.01, Indebtedness arising by ~~purchase money security interests~~ 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 the granting of such Liens are permitted under the terms of this Agreement; (b) Indebtedness of any Obligor owing to and held by any other Obligor; provided, however, that (i) any subsequent issuance or transfer of Capital ~~Leases permitted~~ Stock or any other event which results in ~~clause~~ 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 (i); (d) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes) for the purpose of ~~Section 6.7~~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 ~~Loans~~ 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 ~~Obligations~~similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business, (iii) ~~deferred taxes, to~~ the ~~extent permitted under applicable law,~~ financing of insurance premiums in the ordinary course of business and (iv) ~~unfunded pension fund and other employee benefit plan obligations and liabilities to~~ any customary Cash Management Services, cash pooling or netting or setting off arrangements in the extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect ordinary course of ~~increasing the~~business; (Ag) Indebtedness arising from agreements providing for guarantees, indemnification, obligations in respect of earn-outs or other adjustments of purchase price or, in each ~~Borrower shall have executed and delivered to~~ 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 ~~Borrower, on the Closing Date, a demand note (collectively, the “Intercompany Notes”) to evidence~~ than Guarantee Obligations in respect of Indebtedness Incurred by any Person acquiring or disposing of such ~~intercompany Indebtedness owing at any time by~~ business or assets or 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 Subsidiary for the ~~Obligations~~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 (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) measured at the time ~~any such intercompany loan or advance is made by any Borrower to any other Borrower~~ received and ~~after giving effect thereto, each such Borrower shall be Solvent; (E) no Default or Event of Default would occur and be continuing after~~ without giving effect to any subsequent changes in value), actually received by the Obligor Group in connection with such ~~proposed intercompany loan~~disposition; (i) 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 (Fiv) 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 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 (a) through (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 be included; (4) the principal amount of any Disqualified Stock of an Obligor, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof; (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 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 outstanding as of any date shall be (x) the accreted value thereof in the case of any ~~intercompany Indebtedness,~~ Indebtedness issued with original issue discount and (Xy) 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~~principal amount, or ~~(Y)~~ liquidation preference thereof, in the ~~intercompany~~ case of any other Indebtedness. If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be Incurred by a ~~Great Northern Advance, (ix) Indebtedness owing to Affiliates and holders~~ Restricted Subsidiary of ~~Stock~~ the Borrower as of such ~~Credit Party that constitutes Subordinated Debt~~date (and, ~~is unsecured, interest on which~~ if such Indebtedness is not ~~payable~~ permitted to be Incurred as of such date under this Section, the Borrower shall be in ~~cash until after~~ breach of the Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the extent permitted under Section 6.17 and (xi) unsecured Indebtedness not otherwise referred to covenant contained in this Section ~~6.3~~ 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 ~~exceeding $1,000,000~~ be deemed to be exceeded solely as a result of fluctuations in ~~aggregate~~ the exchange rate of currencies. The principal amount ~~outstanding at~~ of any ~~time for all Credit Parties. (b) No Credit Party shall~~Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness is 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, ~~voluntarily purchase~~Incur any Indebtedness (including Acquired Indebtedness) that is subordinated or junior in right of payment to any Indebtedness of the Borrower or such Guarantor, ~~redeem~~as the case may be, 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 asset securing unless such Indebtedness ~~has been sold~~ is expressly subordinated in right of payment to the Loans or ~~otherwise disposed~~ such Guarantor’s Guarantee Obligations to the extent and in the same manner as such Indebtedness is subordinated to other Indebtedness of ~~in accordance with Sections 6.8(b)~~ the Borrower or ~~(c) and (iii)~~ such Guarantor, as the case may be, provided that for purposes of this Agreement, unsecured Indebtedness ~~permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v)~~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. ~~(a) No Credit Party~~ Borrower shall not create, incur, ~~assume~~ assume, guarantee or be or remain liable with respect to any Indebtedness, or permit any Subsidiary to ~~exist~~ do so, other than Permitted Indebtedness, or prepay any Indebtedness or take any actions which impose on Borrower an obligation to prepay any Indebtedness, except for (~~without duplication~~a) the conversion of Indebtedness into equity securities and the payment of cash in lieu of fractional shares in connection with such conversion, (b) purchase money Indebtedness or Indebtedness in respect of capital leases permitted hereunder pursuant to its then applicable payment schedule, (c) prepayment by any Subsidiary of (i) inter-company Indebtedness ~~secured~~ owed by ~~purchase money security interests and Capital Leases permitted in clause~~ such Subsidiary to any Borrower, or (cii) or if such Subsidiary is not a Borrower, intercompany Indebtedness owed by such Subsidiary to another Subsidiary that is not a Borrower, (d) ~~of Section 6.7, (ii) the Loans and the other Obligations, (iii) deferred taxes,~~ payments made on Subordinated Indebtedness to the extent permitted under ~~applicable law~~the relevant Subordination Agreement, (e) the issuance of and performance of obligations under Permitted Convertible Debt, (f) the conversion, exchange, exercise, repurchase, redemption of Permitted Convertible Debt, or the exercise or early unwind or termination of Permitted Bond Hedge Transactions and Permitted Warrant Transactions, in each case so long as any cash prepayments made by Borrower in connection therewith are Permitted Convertible Debt Financing Payments, (g) Indebtedness owed under corporate credit cards constituting Permitted Indebtedness and prepaid in the ordinary course of business, (h) Permitted Indebtedness with the proceeds of Permitted Indebtedness, (i) prepayment of Indebtedness permitted under clauses (i), (iv~~) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law~~), (~~v) existing Indebtedness described in Disclosure Schedule (6.3~~vii) and ~~refinancings thereof or amendments or modifications thereto that do not have~~ (xviii) of the ~~effect~~ definition 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 Permitted 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 (Yj) the intercompany Indebtedness 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 as otherwise permitted hereunder or approved in cash until after the Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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 Partieswriting by Agent. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

Appears in 2 contracts

Sources: Loan and Security Agreement (Dyne Therapeutics, Inc.), Loan and Security Agreement (Dyne Therapeutics, Inc.)

Indebtedness. ~~(a) No Credit Party shall~~ The Borrower will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, ~~except~~ except: (~~without duplication~~a) the Obligations; (b) Permitted Existing Indebtedness and Permitted Refinancing Indebtedness in respect thereof; (c) Indebtedness arising from intercompany loans and advances owing by the Borrower or any 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 Section 6.05; (d) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any 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 ~~secured by purchase money security interests and Capital Leases permitted in clause (c)~~ is incurred prior to or ~~(d)~~ within 90 days after such acquisition or the completion of ~~Section 6.7~~such construction or improvement, (ii) the ~~Loans and~~ aggregate principal amount of 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 ~~other Obligations, (iii~~time such lease was entered into) 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do shall 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 exceed $1,00 after giving effect to such intercompany loan, or (Y) the intercompany Indebtedness 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) 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 in reliance on the Secured Debt Indenture Exceptions; (e) Permitted Unsecured Notes and 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 incurred to finance insurance premiums in the ordinary course of business in an aggregate principal amount not 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 ~~6.3(a)(v~~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 such Indebtedness) ~~upon any refinancing thereof in accordance with Section 6.3(a)(v)~~shall be deemed to be an incurrence of Indebtedness.

Appears in 2 contracts

Sources: Credit Agreement, Credit Agreement (Southwestern Energy Co)

Indebtedness. Incur, create, assume, become or be liable, directly, indirectly or contingently, in any manner with respect to, or permit to exist, any Indebtedness or liability, except: (a) ~~No Credit Party~~ Indebtedness of Borrowers to Lenders hereunder and under the Notes, together with Indebtedness owed to Underlying Issuers with respect to Underlying Letters of Credit; (b) Indebtedness 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 described in Schedule 7.01 hereto; provided, however, that the terms of such Indebtedness shall ~~create, incur, assume~~ not be modified or ~~permit to exist any Indebtedness, except~~ amended in an adverse respect nor shall payment thereof be modified without the prior written consent of the Required Lenders; (~~without duplication~~f) (i) Indebtedness ~~secured by purchase money security interests and~~ under 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 ObligationsLeases; (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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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~~ consisting of purchase money indebtedness incurred in the ~~asset securing such Indebtedness has been sold or otherwise disposed~~ purchase of real estate, equipment and Licenses to be used in ~~accordance with Sections 6.8(b) or (c)~~ the Borrowers’ businesses; and (iii) Indebtedness arising under surety, indemnity, performance or other similar bonds posted for a Borrower relating to the construction and/or build-out of any Station and issued in the ordinary course of business, and any other performance or similar bonds posted for a Borrower and issued in the ordinary course of business; provided, however, that (A) all Indebtedness incurred by Borrowers permitted by ~~Section 6.3(a)(v~~this subsection (f) ~~upon~~ shall not exceed $12,000,000 in the aggregate outstanding at any ~~refinancing thereof~~ time, (B) not more than $2,000,000 of Indebtedness permitted by this subsection (f) shall be owed to a single lender or its Affiliates, and (C) all Indebtedness incurred under clauses (i) and (ii) of this subsection (f) shall not exceed the acquisition price of the assets acquired pursuant thereto; and (g) Judgments against the Borrowers, not to exceed $250,000 in ~~accordance with Section 6.3(a)(v)~~the aggregate at any time, and discharged, satisfied or bonded in full within sixty (60) days.

Appears in 2 contracts

Sources: Credit Agreement (Coconut Palm Acquisition Corp.), Credit Agreement (Coconut Palm Acquisition Corp.)

Indebtedness. (a) ~~No Credit Party~~ Within the time periods required by the terms of each Convertible Notes Indenture, the Company shall, and shall ~~create~~cause the Company Subsidiaries to, ~~incur~~take all actions required by, ~~assume~~ or ~~permit~~ reasonably requested by Parent pursuant to, the applicable Convertible Notes Indenture and applicable Law to ~~exist~~ be performed by the Company or any ~~Indebtedness~~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, ~~except~~ 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 required by, or reasonably requested by Parent pursuant to, the Convertible Notes Indentures; provided that the Company (~~without duplication~~or 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 the terms of the applicable Convertible Notes Indenture. Without limiting the generality of the foregoing, prior to the Effective Time, the Company agrees to cooperate with Parent, at Parent’s written request, by (i) ~~Indebtedness secured by purchase money security interests~~ executing and ~~Capital Leases permitted in clause~~ delivering (cor 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 (~~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~~ required by the trustee pursuant to the ~~extent they are permitted to remain unfunded under applicable law~~Convertible Notes Indentures), ~~(v) existing Indebtedness described~~ in ~~Disclosure Schedule (6.3) and refinancings thereof or 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 case in form and substance reasonably ~~satisfactory~~ acceptable to ~~Agent and shall be pledged and delivered to Agent~~ Parent, pursuant to the applicable ~~Pledge Agreement~~ Convertible Notes Indenture and (ii) using its reasonable best efforts to cause each of the trustees under the Convertible Notes Indentures to execute at or ~~Security Agreement as additional collateral security for~~ prior to 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~~ Effective Time any such ~~Intercompany~~ 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 ~~shall be subordinated~~ Indenture to holders under the ~~Obligations of such Borrower hereunder in a manner reasonably satisfactory to Agent; (D) at~~ 2025 Notes Indenture on the ~~time any such intercompany loan or advance is made by any Borrower to any other Borrower and after giving effect thereto~~December 1, 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 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, 2021 interest on which is not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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 Partiespayment date. (b) ~~No Credit Party shall~~Prior to the Effective Time, ~~directly~~ the Company shall (i) take all actions reasonably requested by Parent in connection with making elections under, amending, negotiating adjustments, obtaining waivers or ~~indirectly~~unwinding or otherwise settling the Capped Call Confirmations, ~~voluntarily purchase, redeem, defease or prepay~~ (ii) promptly advise Parent of any ~~principal of, premium, if any, interest~~ notices or other ~~amount payable~~ communications with the counterparties to the Convertible Note Hedge Obligations in respect of any ~~Indebtedness~~settlement or termination thereof or adjustment thereto (including any adjustments arising out of an Announcement Event (as defined in the Capped Call Confirmations)), other than (i) the Obligations, (ii) Indebtedness secured by a Permitted Encumbrance if the asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) ~~Indebtedness permitted~~ 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 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 (a “Specified Exercise”)) (it being agreed that the Company shall notify Parent in writing as promptly as practicable prior to any such exercise or 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 terms of the Convertible Note Hedge Obligations or a notice contemplated by Section ~~6.3(a)(v~~9(i)(i) ~~upon~~ of the applicable Capped Call Confirmations in connection with a Specified Exercise (it being understood that the Company will provide Parent with prior notice of any ~~refinancing thereof in accordance~~ such delivery with ~~Section 6.3(a)(v~~an opportunity to comment on the relevant notice).

Appears in 2 contracts

Sources: Merger Agreement (Zoom Video Communications, Inc.), Merger Agreement

Indebtedness. ~~(a) No Credit Party shall~~ It will not, and will not permit any of its Subsidiaries to, create, incur, assume or ~~permit~~ suffer to exist any Indebtedness, ~~except~~ provided that KCMH and any Subsidiary may incur Indebtedness (~~without duplication)~~ and all premiums (~~i) Indebtedness secured by purchase money security interests~~ if any), interest (including post-petition interest), fees, expenses, charges and ~~Capital Leases permitted in clause (c)~~ additional 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 contingent interest with regard 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; Indebtedness) if (Bx) 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 immediately before and after ~~giving effect thereto~~such incurrence, ~~each such Borrower shall be Solvent; (E)~~ no Default or Event of Default ~~would occur~~ shall have occurred and be continuing and (y) the Debt to Equity Ratio is less than or equal to [**] to 1.00 after giving pro forma effect thereto. The limitations set forth in the immediately preceding sentence shall not apply to any ~~such proposed intercompany loan;~~ of the following items: (i) Indebtedness arising under the Loan Documents; (ii) Intercompany Indebtedness owed among the Borrowers and/or their Subsidiaries (including any Indebtedness used to finance any Financing Transaction); (iii) Permitted Subordinated Debt; (iv) Indebtedness in respect of Hedging Agreements; (v) Indebtedness in respect of overdraft facilities, netting services, automatic clearinghouse arrangements and ~~(F)~~ other cash management and similar arrangements in the ~~case~~ ordinary course of business; (vi) additional Indebtedness of KCMH and its Subsidiaries in an aggregate principal amount not to exceed $[**] at any ~~intercompany~~ time outstanding; (vii) Indebtedness arising under the Five-Year Credit Agreement (and the other Loan Documents (as defined therein)), and any refinancing, renewal or replacement thereof; (viii) Indebtedness arising under fronting and/or settlement facilities (“Fronting Facilities”); provided that, at least 10 Business Days prior to incurring any such Indebtedness (or such shorter period as MHCB shall reasonably agree, it being agreed MHCB shall use commercially reasonable efforts to provide a response to KCMH as soon as practicable after receipt of such notice), KCMH and/or the relevant Subsidiary shall have provided MHCB a bona fide opportunity (through a written notice to MHCB) to provide such Indebtedness, ~~(X)~~ including an offer regarding the ~~Borrower advancing~~ timing of establishing such ~~funds~~ indebtedness, and MHCB shall have ~~Borrowing Availability under its separate Borrowing Base of not less than $1,00 after giving effect~~ either (1) declined (through a written notice from the Administrative Agent to KCMH and/or such Subsidiary) to accept such offer to provide such Indebtedness or (2) failed to respond in writing to such ~~intercompany loan~~offer, ~~or (Y) the intercompany Indebtedness shall be a Great Northern Advance~~in each case, within such 10 Business Day period; and (ix) ~~Indebtedness owing to Affiliates and holders of Stock of such Credit Party that constitutes Subordinated Debt, is unsecured~~all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on ~~which is not payable~~ obligations described in cash until after the Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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 clauses (i) ~~the Obligations,~~ through (iiviii) Indebtedness secured by a Permitted Encumbrance if the asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v)above.

Appears in 2 contracts

Sources: 364 Day Revolving Credit Agreement (KKR & Co. Inc.), 364 Day Revolving Credit Agreement (KKR & Co. Inc.)

Indebtedness. The Company will not, and 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 Specified Qualified Lessees to incur Indebtedness for borrowed money, in each case except the following Indebtedness, which may be incurred subject to the requirements of the last paragraph of this section: (a) ~~No Credit Party shall create, incur, assume or permit to exist any Indebtedness, except~~ Indebtedness evidenced by the Financing Documents; (~~without duplication~~b) Indebtedness of the Company (i) that is not related to, and does not support, Non-Recourse Debt of a Project Finance Subsidiary and (ii) if incurred, would not result in a breach of Section 9.9; provided that if the Indebtedness is proposed to be secured by ~~purchase money security interests~~ any of the Collateral, then at least five Business Days (or such shorter period reasonably agreed by the 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 ~~Capital Leases permitted~~ 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 or all of the Collateral) and (y) deliver to the Collateral Agent and the other Secured Parties an executed joinder agreement substantially in ~~clause~~ 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; (ci) Non-Recourse Debt incurred by a Project Finance Subsidiary of the Company (including Non-Recourse Debt incurred by such Project Finance Subsidiary prior to being acquired by the Company or (da Subsidiary) ~~of Section 6.7~~to fund a New Project, (ii) any Indebtedness in the ~~Loans~~ form of a pledge of Capital Stock in a Project Finance Subsidiary as security for Non-Recourse Debt of such Project Finance Subsidiary and ~~the other Obligations,~~ (iii) ~~deferred taxes~~Indebtedness in the form of Guaranties by the 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 (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 each case on a 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 ~~permitted~~ allowed under ~~applicable law~~the Leases to which such Qualified Lessee is a party as a lessee or tenant thereunder; provided, that for purposes of this clause (ivd), all Consolidated Qualified Lessees will be treated as one Qualified Lessee; (e) ~~unfunded pension fund~~ 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 and in each case to have a maturity date of less than one year; (f) any Qualified Lessee Affiliate Loan and other ~~employee benefit plan obligations and liabilities~~ Indebtedness of Qualified Lessees otherwise acceptable to the extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing theRequired Holders; and (Ag) Indebtedness of Subsidiaries of Specified Qualified Lessees incurred in an aggregate principal amount for 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 Specified Qualified Lessee of up to the ~~applicable Pledge Agreement or Security Agreement as additional collateral security for~~ product of (x) such Specified Qualified Lessee’s Consolidated Net Plant (derived from its most recently prepared consolidated balance sheet, prepared in accordance with GAAP but adjusted to reverse the ~~Obligations; (B) each Borrower shall record all intercompany transactions on its books and records~~ effects of failed sale-leaseback accounting in a manner reasonably ~~satisfactory to Agent;~~ determined by such Specified Qualified Lessee in good faith) multiplied by (Cy) the ~~obligations~~ lesser of ~~each Borrower under any such Intercompany Notes shall be subordinated to~~ (A) the ~~Obligations~~ sum of such ~~Borrower hereunder in~~ Specified Qualified Lessee’s then-current PUCT-regulated debt-to-equity ratio (expressed as a ~~manner reasonably satisfactory~~ percentage) and 5% or (B) 65%; provided that such Indebtedness must be Non-Recourse Debt to ~~Agent; (D) at~~ such Specified Qualified Lessee. Indebtedness of the ~~time~~ Company or any ~~such intercompany loan or advance is made by any Borrower to any other Borrower and after giving effect thereto, each such Borrower shall~~ of its Subsidiaries may be ~~Solvent; (E)~~ incurred under this Section 10.6 only if 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 loanis, or ~~(Y) the intercompany Indebtedness shall be~~ as a ~~Great Northern Advance, (ix) Indebtedness owing to Affiliates and holders of Stock~~ result of such ~~Credit Party that constitutes Subordinated Debt~~incurrence would be, is unsecured, interest on which is not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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 Partiesexisting. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

Appears in 2 contracts

Sources: Note Purchase Agreement (InfraREIT, Inc.), Note Purchase Agreement (InfraREIT, Inc.)

Indebtedness. ~~(a) No Credit Party shall~~ As to the Subsidiaries only, create, incur, assume or ~~permit~~ suffer to exist any Indebtedness, ~~except~~ except: (~~without duplication) (i~~a) 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 unfunded under applicable law, (v) Subsidiaries existing ~~Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect~~ as 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 Date 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) referenced 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the extent permitted under Section 6.17 and (xi) unsecured Indebtedness not otherwise financial statements referred to in ~~this~~ Section ~~6.3 not exceeding $1,000,000~~ 5.05 and renewals, refinancings or extensions thereof in ~~aggregate~~ a principal amount not in excess of that outstanding ~~at any time for all Credit Parties.~~as of the date of such renewal, refinancing or extension; (b) ~~No Credit Party shall, directly~~ Indebtedness of the Subsidiaries incurred after the Closing Date consisting of capital leases or ~~indirectly, voluntarily purchase, redeem, defease~~ Indebtedness incurred to provide all or ~~prepay any principal of, premium, if any, interest~~ a portion of the purchase price or ~~other amount payable in respect~~ cost of ~~any Indebtedness, other than~~ construction of an asset provided that (i) such Indebtedness when incurred shall not exceed the ~~Obligations,~~ purchase price or cost of construction of such asset; (ii) ~~Indebtedness secured by a Permitted Encumbrance if the asset securing~~ no such Indebtedness ~~has been sold or otherwise disposed~~ shall be refinanced for a principal amount in excess of ~~in accordance with Sections 6.8(b) or (c)~~ the principal balance outstanding thereon at the time of such refinancing; and (iii) the total amount of all such Indebtedness ~~permitted~~ shall not exceed $50,000,000 at any time outstanding; (c) unsecured intercompany Indebtedness among the Borrower and its Subsidiaries; (d) Indebtedness and obligations owing under any 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 transactions to the defaulting party; (e) Indebtedness and obligations of the Subsidiaries owing under documentary letters of credit for the purchase of goods or other merchandise (but not under standby, direct pay or other letters of credit) generally; (f) Indebtedness of the Subsidiaries incurred in connection with acquisitions (including Indebtedness of Subsidiaries incurred or assumed in connection with joint ventures) provided that (i) such Indebtedness when incurred shall not exceed the purchase price for such acquisition (or the total capital (equity and debt) of a joint venture) and (ii) if the aggregate amount of any such Indebtedness (whether anticipated to be funded at one time or over a series of fundings) exceeds $100,000,000, then (A) the Borrower shall give the Administrative Agent prior written notice of such Indebtedness and (B) prior to the incurrence of any 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 better by S&P and Baa3 or better by ▇▇▇▇▇’▇); and (g) other non-acquisition-related Indebtedness of the 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 pursuant to Section ~~6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v~~6.02(b)).

Appears in 2 contracts

Sources: Credit Agreement (Sonoco Products Co), Credit Agreement (Sonoco Products Co)

Indebtedness. ~~(a) No Credit Party~~ Borrower shall not and shall not cause or permit its Subsidiaries directly or indirectly to create, incur, ~~assume~~ assume, or ~~permit~~ otherwise become or remain directly or indirectly liable with respect to ~~exist~~ any Indebtedness (other than pursuant to a Contingent Obligation permitted under Section 5.4) except for “Permitted Indebtedness~~, except~~ ” as follows: (~~without duplication~~a) the Obligations; (ib) Indebtedness not to exceed Five Hundred Thousand Dollars ($500,000) in the aggregate at any time outstanding secured by purchase money ~~security interests and~~ Liens incurred with respect to Capital ~~Leases permitted in clause~~ Leases; (c) Indebtedness under the Senior Line of Credit or permitted under the Senior Lender Subordination Agreement; (d) Indebtedness of ~~Section 6.7,~~ Borrower secured by Permitted Encumbrances; (iie) Indebtedness arising from the ~~Loans~~ endorsement of instruments in the ordinary course of business; (f) Indebtedness existing on the date hereof and disclosed to Investment Manager in writing or as set forth on Schedule 5.1; (g) Indebtedness to trade creditors and with respect to surety bonds and similar obligations (including letters of credit issued for the ~~other Obligations,~~ benefit of Borrower’s customers to ensure payment of consumer incentives) incurred in the ordinary course of business; (~~iii~~h) ~~deferred taxes,~~ Indebtedness of Borrower to UK Subsidiary and Indebtedness of UK Subsidiary to Borrower to the extent permitted under ~~applicable law, (iv) unfunded pension fund~~ the definition of “Permitted Investments and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing theRestricted Payments”; and (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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v)Subordinated Debt.

Appears in 2 contracts

Sources: Credit Agreement, Credit Agreement (Cardlytics, Inc.)

Indebtedness. ~~(a) No Credit Party~~ The Borrower shall not create, incur, ~~assume or permit~~ assume, suffer to exist or otherwise be or become liable with respect to any ~~Indebtedness,~~ 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 following (collectively, ~~the~~ “~~Intercompany Notes~~Permitted Indebtedness”): (a) ~~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~~ incurred 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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.Document; (b) ~~No Credit Party shall~~unsecured Indebtedness of the Borrower (other than Intercompany Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $5,000,000; (c) Purchase Money Indebtedness (including Capital Lease Obligations); provided that the aggregate principal amount and the capitalized portion of such obligations do not at any one time exceed $7,500,000 in the aggregate at any one time outstanding; (d) unsecured Indebtedness of the Borrower owing to any Affiliate of the Borrower in an aggregate outstanding principal amount not to exceed $15,000,000 so long as such Indebtedness is subordinated in right of payment to the Loans in accordance with the terms of subordination reasonably acceptable to the Administrative Agent (“Intercompany Indebtedness”); (e) Permitted Refinancing Indebtedness to refinance all or any portion of any Indebtedness permitted under this Section; provided that the amount of any such Permitted Refinancing Indebtedness shall be deemed outstanding as the same type of Indebtedness being refinanced for purposes of determining the capacity of the Borrower to create, ~~directly~~ incur, assume, suffer to exist or ~~indirectly, voluntarily purchase, redeem, defease~~ otherwise be or ~~prepay~~ become liable with respect to any ~~principal of, premium, if any, interest~~ Indebtedness (to the extent such capacity is limited hereunder); (f) Indebtedness listed on Schedule 7.4(f); (g) Performance Guarantees supporting the Project; provided that the terms of any such Performance Guarantee shall be generally consistent with past practice of the Borrower and its Affiliates and in no event shall any such Performance Guarantee be secured by Collateral; (h) Indebtedness under any Permitted Commodity Hedge and Power Sales Agreement or other ~~amount payable~~ Swap Agreement entered into in accordance with Section 7.12; (i) to the extent constituting Indebtedness, obligations in respect of performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees, indemnification obligations, obligations to pay insurance premiums, take-or-pay obligations contained in supply agreements and similar obligations incurred in the ordinary course of business and not in connection with Indebtedness for Borrowed Money; (j) Indebtedness in respect of any ~~Indebtedness~~bankers’ acceptance, ~~other than~~ letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business and not in respect of Swap Agreements; (~~i) the Obligations, (ii~~k) Indebtedness ~~secured~~ in respect of netting services, overdraft protections and otherwise in connection with deposit accounts; and (l) Indebtedness of the Borrower on then current market terms, so long as the proceeds thereof are used to fund Capital Expenditures relating to modifications to the Project to the extent required by ~~a Permitted Encumbrance if the asset securing~~ Requirements of Law, in an aggregate principal amount not to exceed $19,500,000 at any one time outstanding; provided that such Indebtedness has ~~been sold~~ a final maturity date that is not earlier than, and provides for no scheduled payments of principal or ~~otherwise disposed~~ mandatory redemption obligations prior to, the date that is one year after the Scheduled Termination Date. To the extent that the creation, incurrence or assumption of any Indebtedness could be attributable to more than one subsection of this Section 7.4, the Borrower may allocate such Indebtedness to any one or more of such subsections and in ~~accordance with Sections 6.8(b)~~ no event shall the same portion of Indebtedness be deemed to utilize or ~~(c) and (iii)~~ be attributable to more than one subsection. For the avoidance of doubt, any Indebtedness permitted to be incurred by the Borrower, as the case may be, under a specific subsection of this Section ~~6.3(a)(v) upon~~ 7.4 and any ~~refinancing thereof~~ Guarantee in ~~accordance~~ respect of such Indebtedness which is also permitted to be incurred by the Borrower, as the case may be, under the same subsection of this Section 7.4 shall not count as two separate amounts of Indebtedness for purposes of calculating compliance with ~~Section 6.3(a)(v)~~the limitations set forth in such subsection.

Appears in 2 contracts

Sources: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)

Indebtedness. ~~(a) No Credit Party~~ Neither the Borrower nor any of its Subsidiaries shall directly or indirectly create, incur, assume or ~~permit~~ otherwise become or remain directly or indirectly liable with respect 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing theexcept: (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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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) Permitted Existing Indebtedness and Permitted Refinancing Indebtedness; (iii) Indebtedness in respect of obligations secured by a Customary Permitted ~~Encumbrance if~~ 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 ~~asset securing such Indebtedness has been sold~~ Borrower or ~~otherwise disposed of in accordance with Sections 6.8(b~~any wholly-owned Subsidiary or (b) from the Borrower to any wholly-owned Domestic Incorporated Subsidiary or (c) 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 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 (~~iii~~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 ~~permitted~~ with respect to surety, appeal and performance bonds obtained by ~~Section 6.3(a)(v~~the Borrower or any of its Subsidiaries in the ordinary course of business; (ix) ~~upon~~ Indebtedness incurred by the Borrower to the seller in any ~~refinancing thereof~~ Permitted Acquisition as part of the consideration therefor, provided that such Indebtedness is unsecured and, if in ~~accordance with Section 6.3(a)(v)~~excess of $15,000,000 in the aggregate, is subordinated to the Obligations, on terms reasonably acceptable to the Agent; and (x) additional unsecured Indebtedness in an aggregate amount at any time outstanding not exceeding $25,000,000.

Appears in 2 contracts

Sources: Credit Agreement (Schawk Inc), Credit Agreement (Schawk Inc)

Indebtedness. ~~(a) No Credit Party shall~~ Incur, create~~, incur~~, assume or permit to ~~exist~~ exist, directly or indirectly, any Indebtedness, ~~except~~ except (~~without duplication~~a) Indebtedness incurred under this Agreement and the other Loan Documents; (b) (i) Indebtedness ~~secured by purchase money security interests~~ outstanding on the Closing Date and ~~Capital Leases permitted in clause~~ listed on Schedule 6.01(b) and any Permitted Refinancing (cother than Existing Notes) ~~or (d) of Section 6.7~~thereof, (ii) prior to the ~~Loans~~ Refinancing, Indebtedness under the Existing Notes and ~~the other Obligations,~~ (iii) ~~deferred taxes~~(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) 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 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 otherwise permitted under this Section 6.01; provided that, to the extent any such Contingent Obligation constitutes an Investment, such Investment is permitted under applicable law, (iv) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing theSection 6.04; (Ai) ~~each Borrower shall have executed~~ Attributable Indebtedness resulting from Sale and ~~delivered to each other Borrower, on the Closing Date, a demand note (collectively, the “Intercompany Notes”) to evidence~~ Leaseback Transactions incurred by any ~~such intercompany Indebtedness owing~~ Loan Party in an aggregate amount at any time ~~by such Borrower~~ outstanding not to ~~such other Borrowers which Intercompany Notes shall be~~ exceed the greater of $5,000,000 and 1.80% of Total Assets (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) 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 the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such ~~intercompany loan~~ 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 ~~advance is made by any Borrower to any other Borrower~~ outstanding for purposes of this Section 6.01(n) but shall be deemed incurred for the purposes of this covenant from and after ~~giving effect thereto, each~~ the first date on which such ~~Borrower shall be Solvent;~~ Company could have incurred such Indebtedness under Section 6.01(o) without reliance on this Section 6.01(n)); (Eo) other Indebtedness of any Company so long as (w) no Default or Event of Default ~~would occur~~ 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 ~~giving effect to any such proposed intercompany loan; and~~ an event of default), earlier than the date that is ninety-one (F91) days after the Revolving Maturity Date, (y) in the case of Non-Loan Parties, such Indebtedness at any ~~intercompany~~ 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, (Xw) in the ~~Borrower advancing~~ case of clause (A) only, such ~~funds shall have Borrowing Availability under its separate Borrowing Base of~~ Indebtedness is not ~~less than $1,00 after giving effect to such intercompany loan, or (Y) the intercompany Indebtedness shall be a Great Northern Advance, (ix) Indebtedness owing to Affiliates and holders of Stock~~ incurred in contemplation of such Credit Party that constitutes Subordinated Debt, is unsecured, interest on which is not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination DatePermitted Acquisition, (x) ~~Indebtedness under Hedging Agreements~~ no Event of Default shall exist or shall have occurred and be continuing or would result therefrom after giving Pro Forma Effect to the ~~extent permitted under Section 6.17~~ 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 (xiz) ~~unsecured~~ in the case of clause (B) only, such Indebtedness shall not ~~otherwise referred~~ 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 ~~in this Section 6.3 not exceeding $1,000,000 in~~ 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 Non-Loan Parties shall not exceed the greater of $7,500,000 and 2.70% of Total Assets outstanding at any ~~time for all Credit Parties.~~time; (q) Indebtedness 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, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests or other equity-based awards of the Borrower or any direct or indirect parent of the Borrower permitted by Section 6.07; (s) 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; (t) Indebtedness consisting of obligations of any Company under deferred compensation or other similar arrangements incurred by such Person in connection with the Transactions, and Permitted Acquisitions or any other Investment expressly permitted under this Agreement; and (u) Indebtedness consisting of (a) the financing of insurance premiums or (b) ~~No Credit Party shall~~take-or-pay obligations contained in supply arrangements, ~~directly or indirectly~~in each case, ~~voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable~~ incurred in ~~respect~~ the ordinary course of any Indebtedness, other than (i) the Obligations, (ii) Indebtedness secured by a Permitted Encumbrance if the asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v)business.

Appears in 2 contracts

Sources: Credit Agreement (Norcraft Companies, Inc.), Credit Agreement (Norcraft Companies Lp)

Indebtedness. ~~(a) No Credit Party shall~~ Subject to the last sentence of this Section 6.01, the Borrower will not, nor will it permit any of the Subsidiary Guarantors to, create, incur, assume or permit to exist any Indebtedness, ~~except~~ except: (~~without duplication~~a) Indebtedness created hereunder or under any other Loan Document; (b) Secured Longer-Term Indebtedness and Unsecured Longer-Term Indebtedness so long as (i) ~~Indebtedness secured by purchase money security interests and Capital Leases permitted in clause (c) or (d)~~ no Default exists at the time of ~~Section 6.7~~the incurrence thereof, (ii) the ~~Loans~~ aggregate amount of such Secured Longer-Term Indebtedness and Unsecured Longer-Term 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 (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) Other Permitted Indebtedness; (d) Guarantees of Indebtedness otherwise permitted hereunder; (e) Indebtedness of any Obligor owing to any other ~~Obligations~~Obligor or, if such Indebtedness is subject to subordination terms and conditions that are satisfactory to the Administrative Agent, any other Subsidiary of the Borrower; (f) Indebtedness of Financing Subsidiaries; (g) repurchase obligations arising 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) Secured Shorter-Term Indebtedness so long as (i) no Default exists at the time of the incurrence thereof, (ii) the aggregate amount (determined at the time of the incurrence of such Indebtedness) of such Indebtedness does not exceed the greater of (A) $20,000,000 and (B) 5% of Shareholders’ Equity, (iii) ~~deferred taxes~~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 (iv) prior to and immediately after giving effect to the ~~extent permitted under applicable law~~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 incurred pursuant to 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 incurrence thereof, (ii) the aggregate amount (determined at the time of the incurrence of such Indebtedness) of such Indebtedness does not 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) ~~unfunded pension fund~~ 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 ~~other employee benefit plan obligations~~ (d), and ~~liabilities to the extent they are permitted to remain unfunded under applicable law,~~ (v) ~~existing Indebtedness described in Disclosure Schedule (6.3)~~ prior to and refinancings thereof or 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 immediately after giving effect to the incurrence of any such ~~proposed intercompany loan;~~ Indebtedness, the Covered Debt Amount does not or would not exceed the Borrowing Base then in effect; (n) Special Unsecured Indebtedness so long as (i) no Default exists at the time of the incurrence thereof, (ii) the aggregate amount (determined at the time of the incurrence of such Indebtedness) of such Indebtedness does not exceed $1,000,000,000, (iii) 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 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), and (v) ~~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~~ prior to and immediately after giving effect to the incurrence of any such ~~intercompany loan~~Indebtedness, the Covered Debt Amount does not or would not exceed the Borrowing Base then in effect; and (Yo) other Indebtedness not to exceed the ~~intercompany Indebtedness shall be a Great Northern Advance,~~ greater of (ixi) 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the extent permitted under Section 6.17 $25,000,000 and (xiii) ~~unsecured Indebtedness not otherwise referred to in this Section 6.3 not exceeding $1,000,000 in aggregate principal amount outstanding~~ 5% of Shareholders’ Equity at any time ~~for all Credit Parties~~outstanding. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

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. ~~(a) No Credit~~ The Borrower shall not, and shall not permit any other Loan Party ~~shall~~ or any Intermediate Subsidiary to, directly or indirectly, create, incur, assume or ~~permit~~ Guarantee, or otherwise become or remain directly or indirectly liable with respect to ~~exist~~ any Indebtedness, ~~except~~ except: (~~without duplication~~a) the Obligations and Specified Derivatives Obligations; (b) intercompany Indebtedness incurred in the ordinary course of business owing (i) among the Loan Parties, (ii) among the Borrower and the Intermediate Subsidiaries so long as such Indebtedness is Subordinated Debt and (iii) among the Borrower and its Subsidiaries incurred in accordance with the cash management system of the Borrower and its Subsidiaries substantially as in effect on the Agreement Date; (c) Guarantees by any Loan Party of Indebtedness of another Loan Party permitted under this Section (other than Indebtedness referred to in the immediately preceding subsection (b)(iii) and the immediately following subsections (l), (q) and (r)); provided, that if the Indebtedness that is being Guaranteed is unsecured and/or Subordinated Debt, the Guarantee shall also be unsecured and/or Subordinated Debt; (d) Indebtedness of the Loan Parties with respect to Capital Leases and purchase money Indebtedness incurred in the ordinary course of business; (e) Indebtedness resulting from the financing of insurance premiums in the ordinary course of business; (f) cash management obligations (subject to clause (b) above as applicable) and other Indebtedness in respect of endorsements for collection or deposit, netting services, overdraft protections and similar arrangements in each case in connection with deposit accounts and in the ordinary course of business; provided that such Indebtedness is extinguished within 5 Business Days after its incurrence; (g) 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 Indebtedness for money borrowed; (h) 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 the payment of borrowed money or Capital Leases); (i) Indebtedness ~~secured~~ arising from agreements of a Loan Party or an Intermediate Subsidiary 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 (including Equity Interests) of a Loan Party or Intermediate Subsidiary not prohibited by ~~purchase money security interests and Capital Leases permitted in clause (c~~Section 9.1.(e) 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing the9.6.; (Aj) ~~each Borrower shall have executed~~ Indebtedness incurred by a Loan Party or an Intermediate Subsidiary representing deferred compensation to directors, officers, employees, members of management 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 consultants 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) Person in the ~~case~~ ordinary course of ~~any intercompany Indebtedness,~~ business; (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 shall be a Great Northern Advance, (ixk) 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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~~bankers’ acceptances supporting trade payables, ~~other than~~ warehouse receipts or similar facilities entered into in the ordinary course of business; (l) Indebtedness of the Borrower in respect of (i) the ~~Obligations,~~ Subordinated Facility and (ii) prior to the occurrence of the Post-Spin Equity Offering (but at no time thereafter), the Subordinated Guaranties; (m) to the extent constituting Indebtedness, Investments in repurchase agreements constituting Cash Equivalents; (n) to the extent constituting Indebtedness, obligations in respect of Derivatives Contracts permitted under Section 9.13.; (o) Indebtedness ~~secured~~ constituting a Municipal Financing incurred in the ordinary course of business in connection with a new development or redevelopment of real property; (p) Indebtedness incurred by a ~~Permitted Encumbrance~~ Property Owner to finance the acquisition of a parcel of land, together with any improvements located thereon, that is adjacent to the Mortgaged Property of such Property Owner and was not owned by such Property Owner on the Agreement Date; (q) Indebtedness that is not Secured Indebtedness, including without limitation Indebtedness in respect of Ordinary Course Guaranties and Guaranties of Secured Indebtedness, in an aggregate principal amount at any time outstanding not to exceed $100,000,000; (r) Indebtedness of the Borrower in respect of letters of credit for which the Borrower’s reimbursement obligations have been cash collateralized in full; (s) to the extent constituting Indebtedness, all premiums (if ~~the asset securing such~~ any), interest, fees, expenses, charges and additional or contingent interest on Indebtedness ~~has been sold or otherwise disposed of~~ described in ~~accordance with Sections 6.8(b~~clauses (a) or through (cm) and (~~iii~~o) ~~Indebtedness permitted by Section 6.3(a)(v~~and (r) ~~upon any refinancing thereof~~ above; and (t) obligations in ~~accordance with Section 6.3(a)(v)~~respect of Non-Recourse Guaranties to the extent not constituting Indebtedness.

Appears in 2 contracts

Sources: Credit Agreement (Rouse Properties, Inc.), Credit Agreement (Rouse Properties, Inc.)

Indebtedness. ~~(a) No Credit Party shall~~ As to the Subsidiaries only, create, incur, assume or ~~permit~~ suffer to exist any Indebtedness, ~~except~~ except: (~~without duplication~~a) Indebtedness of the Subsidiaries 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 ~~secured by~~ when incurred shall not exceed the purchase ~~money security interests and Capital Leases permitted in clause (c)~~ price or ~~(d)~~ cost of ~~Section 6.7~~construction of such asset, (ii) no such Indebtedness shall be refinanced for a principal amount in excess of the ~~Loans~~ principal balance outstanding thereon at the time of such refinancing and ~~the other Obligations,~~ (iii) ~~deferred taxes~~the total amount of all such Indebtedness shall not exceed $100,000,000 at any time outstanding; (c) unsecured intercompany Indebtedness among the Borrower and its Subsidiaries; (d) Indebtedness and obligations owing under any 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 transactions to the defaulting party; (e) Indebtedness and obligations of the Subsidiaries owing under documentary letters of credit for the purchase of goods or other merchandise (but not under standby, direct pay or other letters of credit) generally; (f) Indebtedness of the Subsidiaries incurred in connection with acquisitions (including Indebtedness of Subsidiaries incurred or assumed in connection with joint ventures); provided that (i) such Indebtedness when incurred shall not exceed the purchase price for such acquisition (or the total capital (equity and debt) of a joint venture) and (ii) if the aggregate amount of any such Indebtedness (whether anticipated to be funded at one time or over a series of fundings) exceeds $200,000,000, then (A) the Borrower shall give the Administrative Agent prior written notice of such Indebtedness and (B) prior to the incurrence of any 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 Moody’s (defined for purposes hereof as BBB- or better by S&P and Baa3 or better by Moody’s); (g) other non-acquisition-related Indebtedness of the Subsidiaries which does not exceed 5% of Total Assets in the aggregate at any time outstanding; and (h) to the extent ~~permitted under applicable law~~constituting Indebtedness, (iv) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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~~ Subsidiaries related 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) No Credit Party shallarrangement, directly or indirectly, ~~voluntarily purchase~~with any Person whereby such Subsidiary shall sell or transfer any property used or useful in its business, ~~redeem~~whether now owned or hereafter acquired, ~~defease~~ and thereafter rent or ~~prepay any principal of, premium, if any, interest~~ lease such property or other ~~amount payable in respect of any Indebtedness, other than (i)~~ property that it intends to use for substantially the ~~Obligations, (ii) Indebtedness secured by a Permitted Encumbrance if~~ same purpose or purposes as the ~~asset securing such Indebtedness has been~~ property being sold or ~~otherwise disposed~~ transferred, so long as the aggregate amount of ~~in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon~~ such obligations does not exceed $100,000,000 at any ~~refinancing thereof in accordance with Section 6.3(a)(v)~~time outstanding.

Appears in 2 contracts

Sources: 364 Day Term Credit Agreement (Sonoco Products Co), Term Credit Agreement (Sonoco Products Co)

Indebtedness. ~~(a) No Credit Party~~ Borrower shall not, and shall not permit its Subsidiaries to, directly or indirectly, create, incur, ~~assume~~ assume, guarantee or ~~permit~~ otherwise become or remain liable for or suffer to exist any Indebtedness except: (a) Indebtedness to 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 obligations thereunder or the collateral (if any) securing such obligations, and pursuant to terms and conditions that are not less favorable to Lender than the Indebtedness being extended, renewed or replaced (collectively, “Permitted Indebtedness”); (c) Indebtedness of Borrower or any Subsidiary of Borrower incurred after the Closing Date consisting of capital lease obligations or Indebtedness incurred to provide all or a portion of the purchase price of an asset; provided, ~~except (without duplication)~~ that (i) such Indebtedness ~~secured by~~ when incurred shall not exceed the purchase ~~money security interests and Capital Leases permitted in clause (c) or (d)~~ price of ~~Section 6.7~~such asset, (ii) no such Indebtedness shall be refinanced for a principal amount in excess of the ~~Loans~~ principal balance outstanding thereon at the time of such refinancing, or on terms and conditions less favorable to Lender than the ~~other Obligations,~~ Indebtedness being refinanced; and (iii) ~~deferred taxes~~the aggregate amount of all such Indebtedness outstanding at any time shall not exceed $250,000; (d) Indebtedness consisting of loans and advances (i) between NimbleGen and NimbleGen Iceland, or (ii) of NimbleGen or NimbleGen Iceland owed to any other Subsidiary of NimbleGen; provided, that, in each case, such Indebtedness shall be evidenced by a 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 unsecured and subordinate in all respects to the payment in full of the Obligations pursuant to the terms of such promissory note or an intercompany subordination agreement in form and substance reasonably acceptable to Lender (the “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 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 greatest extent ~~permitted~~ 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), (iv) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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~~ ). Borrower will not make prepayments on any ~~such intercompany~~ existing or future 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 Person (other ~~Borrower and after giving effect thereto~~than Lender, 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the extent permitted ~~under Section 6.17~~ by this Agreement or any subsequent agreement between Borrower and Lender). Borrower will not make any payments (xiwhether in cash, in kind or otherwise) 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) 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)~~ Permitted Indebtedness at a time such payments are otherwise prohibited under the ~~Obligations, (ii) Indebtedness secured by a Permitted Encumbrance if the asset securing such Indebtedness has been sold~~ terms of any intercreditor agreement or ~~otherwise disposed of in accordance with Sections 6.8(b)~~ subordination agreement or ~~(c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v)~~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. ~~(a)~~ No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or ~~permit~~ guaranty, or otherwise become or remain directly or indirectly liable with respect to ~~exist~~ any Indebtedness, ~~except~~ except: (~~without duplication~~a) the Obligations; (b) intercompany Indebtedness among Parent and its Subsidiaries incurred (i) in the ordinary course of business (including transactions in the ordinary course of business in accordance with the Consolidated Cash Management System and intercompany Indebtedness ~~secured by purchase money security interests and Capital Leases~~ in lieu of an Investment otherwise permitted ~~in clause (c~~under Section 6.6) or (dii) 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 ~~6.7,~~ 6.1(b); provided that intercompany Indebtedness pursuant to clause (ii) ~~the Loans and the other Obligations, (iii) deferred taxes,~~ shall be subordinated 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 Obligations in a manner reasonably satisfactory to ~~Agent; (C) the obligations of each Borrower under any such Intercompany Notes shall be subordinated~~ Administrative Agent 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~~ extent not otherwise restricted by any ~~Borrower to any other Borrower~~ Contractual Obligation; (c) Indebtedness (including letters of credit not provided under this Agreement) which, when aggregated with Indebtedness of Parent, Borrowers and ~~after giving effect thereto~~their Subsidiaries and Joint Ventures (but, ~~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~~consolidated non-Wholly Owned Subsidiaries and Joint Ventures of Parent Guarantors or Borrowers, (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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements 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 to refinance, replace or extend Permitted Project Level Financing or (B) incurred to finance the construction, development, redevelopment, repair or improvement of any GGP Property; (d) Indebtedness in respect of a Lien that is permitted under Section ~~6.17~~ 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 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 (xiii) ~~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.~~Permitted Refinancings thereof; (bi) ~~No Credit Party shall~~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, ~~directly~~ the reinstatement of the TRUP Notes, the Reinstated ▇▇▇▇▇ Notes and the issuance of the Bridge Notes) or ~~indirectly~~specifically contemplated by the Investment Agreements, ~~voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or~~ and Permitted Refinancings thereof; (j) cash management obligations and other ~~amount payable~~ Indebtedness in respect of ~~any Indebtedness~~endorsements for collection or deposit, ~~other than~~ netting services, overdraft protections and 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) ~~the Obligations,~~ take-or-pay obligations contained in utility supply arrangements and (ii) ~~Indebtedness secured by a Permitted Encumbrance if~~ customary indemnification obligations, in each case, incurred in the ~~asset securing such Indebtedness has been sold~~ ordinary course of business and not in connection with debt for money borrowed; (l) letters of credit, bank guaranties or ~~otherwise disposed~~ similar instruments in support of obligations in ~~accordance with Sections 6.8(b)~~ 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 (~~c) and~~ exclusive of obligations for the payment of borrowed money or Capital Leases); (~~iii~~m) Indebtedness ~~permitted~~ 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 (including Capital Stock) of Parent or any of its Subsidiaries not prohibited by Section ~~6.3(a)(v~~6.6 or Section 6.8; (n) ~~upon~~ Indebtedness incurred by Parent or any ~~refinancing thereof~~ of its Subsidiaries representing deferred compensation to directors, officers, employees, members of management and consultants of such Person in ~~accordance~~ the ordinary course of business; (o) Indebtedness in respect of bankers’ acceptances supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business; (p) Indebtedness incurred 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 ordinary course of business in connection with ~~Section 6.3(a)(v~~a new development or redevelopment of real property; (r) to the extent constituting Indebtedness, Investments in repurchase agreements constituting Cash Equivalents; and (s) to the extent constituting Indebtedness, all premiums (if any), interest, fees, expenses, charges and additional or contingent interest on Indebtedness described in clauses (a) through (r) above.

Appears in 2 contracts

Sources: Credit and Guaranty Agreement (General Growth Properties, Inc.), Credit and Guaranty Agreement (New GGP, Inc.)

Indebtedness. The Borrower and each other Obligor will not, and will not permit any of its Restricted Subsidiaries to, create, incur or assume, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except: (a) ~~No Credit Party shall create~~Obligations of the Obligors under the Loan Documents; (b) Indebtedness existing on the date hereof and set forth in Section 6.01 of the Borrower Disclosure Letter and any refinancing, ~~incur~~refundings, ~~assume~~ renewals or ~~permit~~ extensions thereof; (c) Capital Lease Obligations, purchase money Indebtedness and loans incurred to ~~exist~~ acquire or improve equipment or other physical plant or real property of the Borrower or any ~~Indebtedness, except (without duplication)~~ Restricted Subsidiary; provided that (i) such Indebtedness ~~secured~~ 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 Borrower or its Restricted Subsidiaries; provided, further the aggregate principal amount of Indebtedness permitted by ~~purchase money security interests and Capital Leases permitted in~~ this clause (c) or shall not exceed $50,000,000 at any time outstanding; (d) Indebtedness of ~~Section 6.7~~(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) if such Indebtedness is owed to an Obligor, it shall be subject to a Lien under the Collateral Documents to the extent required thereby, (ii) all such Indebtedness shall be unsecured and, if owed by an Obligor to a Restricted Subsidiary that is not an Obligor, subordinated in right of payment to payment in full of the ~~Loans and the other~~ Obligations, as set forth in the Intercompany Note, and (iii) such Indebtedness is permitted as an Investment under Section 6.06; (e) Indebtedness incurred by the Borrower or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including, Indebtedness consisting of the deferred ~~taxes~~purchase price of property or services acquired in an Acquisition permitted hereunder, earnouts and holdbacks), or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of the Borrower or any such Restricted Subsidiary pursuant to such agreements, in connection with Acquisitions and investments permitted hereunder or permitted dispositions of any business or assets (including stock of a Subsidiary); (f) Indebtedness in respect of (i) any Hedging Transaction entered into for the ~~extent permitted under applicable law~~purpose of hedging risks associated with the operations of the Obligors and their respective Subsidiaries and not for speculative purposes and any (ii) Permitted Bond Hedge Transactions or Permitted Warrant Transactions; (g) Indebtedness of the Obligors and their respective Restricted Subsidiaries which may be deemed to exist pursuant to any Guarantees, performance, statutory or similar obligations (ivincluding in connection with workers’ compensation) ~~unfunded pension fund and other employee benefit plan~~ or obligations ~~and liabilities~~ 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 ~~the extent they are permitted to remain unfunded under applicable law~~any appeal obligation, ~~(v) existing Indebtedness described~~ appeal bond or letter of credit in ~~Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto~~ respect of judgments that do not ~~have the effect~~ constitute an Event of ~~increasing the~~Default under clause (j) of Section 9.01; (Ah) Guarantees by the Borrower of Indebtedness of a Restricted Subsidiary or Guarantees by a Restricted Subsidiary of Indebtedness of the Borrower or any Restricted Subsidiary with respect, in each ~~Borrower shall have executed and delivered~~ case, to ~~each other Borrower~~Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01; provided, on that (i) if the ~~Closing Date, a demand note (collectively~~Indebtedness that is being guaranteed is unsecured and/or subordinated to the Obligations, the ~~“Intercompany Notes”) to evidence any such intercompany Indebtedness owing at any time by such Borrower to such other Borrowers which Intercompany Notes~~ Guarantee shall also 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 unsecured and/or 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 (Fii) 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; (i) Indebtedness of any ~~intercompany Indebtedness~~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 (Xi) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation) and (ii) either (A) the ~~Borrower advancing~~ aggregate principal amount of all such ~~funds~~ outstanding Indebtedness permitted by this clause (i) shall ~~have Borrowing Availability under its separate Borrowing Base~~ not exceed at any time outstanding the greater of ~~not less than~~ (x) $~~1,00 after giving effect to such intercompany loan,~~ 50,000,000 and (y) 3.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period and calculated on a Pro Forma Basis or (YB) such additional amount of outstanding Indebtedness permitted by clause (i) that is cash collateralized by such Person that becomes a Subsidiary on or prior to the ~~intercompany Indebtedness shall be~~ date such Person becomes a ~~Great Northern Advance,~~ Subsidiary; (ixj) performance guarantees of the Borrower and its Restricted Subsidiaries in the ordinary course of business primarily guaranteeing performance of contractual obligations of the Borrower or its Restricted Subsidiaries to a third party and not for the purpose of guaranteeing payment of Indebtedness; (i) Indebtedness owing to ~~Affiliates and holders~~ 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 Stock of such Credit Party that constitutes Subordinated Debt, is unsecured, interest on which is not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination Date, business; (xl) Indebtedness under ~~Hedging Agreements~~ 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 treasury, cash management and netting services, automatic clearinghouse arrangements, overdraft protections and otherwise in connection with securities accounts and deposit accounts; (o) Indebtedness in respect of letters of credit, bank guarantees or similar instruments issued to support performance obligations and commercial letters of credit (other than obligations in respect of other Indebtedness) in the ~~extent permitted under Section 6.17~~ ordinary course of business and consistent with past practice; (xip) ~~unsecured~~ Indebtedness ~~not otherwise referred to~~ in ~~this Section 6.3 not exceeding $1,000,000 in~~ an aggregate principal amount outstanding at any time ~~for all Credit Parties.~~not exceeding (1) the greater of (x) $200,000,000 and (y) 15% of Consolidated Total Assets as of the last day of the most recently ended Test Period and calculated on a Pro Forma Basis, plus (2) in the case of Indebtedness incurred solely as one or more series of unsecured notes, notes secured on a junior basis with the Obligations, or subordinated notes (in each case issued in a public offering or a Rule 144A or other private placement or a bridge financing in lieu of the foregoing), loans that are secured on a junior basis with the Obligations or loans that are unsecured, or notes or loans constituting secured or unsecured mezzanine Indebtedness, in an amount equal to (x) the aggregate net proceeds received by the Borrower from the issuance of Equity Interests (other than Disqualified Equity Interests) after the Effective Date, including in connection with a Public Listing, to the extent such proceeds have not been otherwise applied to consummate any transaction, minus (y) the aggregate amount of Restricted Payments (including in the form of dividends, distributions, redemptions or repurchases) paid in cash by the Borrower after the Effective Date; provided that any Indebtedness incurred pursuant to Section 6.01(p)(1)(y) or Section 6.01(p)(2) shall satisfy the Required Debt Terms; (bq) ~~No Credit Party shall, directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable~~ Indebtedness in respect of letters of credit or bankers’ acceptances supporting facility leases in an aggregate principal or face amount not exceeding $50,000,000; (r) Refinancing Indebtedness in respect of Sections 6.01(b), 6.01(c), 6.01(h), 6.01(j), 6.01(p) and 6.01(t); (s) Disqualified Equity Interests in an aggregate principal amount not exceeding $5,000,000; (t) Convertible Indebtedness or Subordinated Indebtedness in an aggregate principal amount outstanding at any ~~Indebtedness~~time not exceeding $250,000,000; (u) Indebtedness incurred by Compass Concierge, Compass Concierge Holdco or any other Excluded Subsidiary pursuant to any Compass Concierge Agreement (which such Indebtedness may be recourse to the Borrower on an unsecured basis, but shall be non-recourse to the Borrower’s Restricted Subsidiaries other than Compass Concierge, Compass Concierge Holdco or any other Excluded Subsidiary) in an aggregate principal amount at any time outstanding not to exceed the greater of (x) $200,000,000 and (y) 15% of Consolidated Total Assets as of the last day of the most recently ended Test Period and calculated on a Pro Forma Basis; (v) Indebtedness of Restricted Subsidiaries of the Borrower that are not Obligors in an aggregate principal amount outstanding at any time not exceeding $25,000,000; (w) Indebtedness incurred by any Mortgage Origination Entity in connection with a Mortgage Origination Business; provided that (i) the ~~Obligations,~~ aggregate principal amount of all such outstanding Indebtedness permitted by this clause (w) shall not exceed at any time outstanding the greater of (x) $100,000,000 and (y) 7.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period and (ii) ~~Indebtedness secured by a Permitted Encumbrance if the asset securing~~ such ~~Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii)~~ Indebtedness permitted by ~~Section 6.3(a)(v~~this clause (w) ~~upon~~ shall be incurred either (x) without recourse to the Borrower and its Restricted Subsidiaries other than any ~~refinancing thereof~~ Mortgage Origination Entity or (y) subject only to customary limited recourse obligations of the Borrower and its Restricted Subsidiaries (such as customary “bad boy” guarantees or other obligations) which are reasonably acceptable to the Administrative Agent; (x) Indebtedness in ~~accordance with Section 6.3(a)(v~~an aggregate principal amount outstanding not to exceed $125,000,000; and (y) Indebtedness of the Borrower and its Restricted Subsidiaries, so long as immediately after giving effect to the incurrence and the application of the proceeds thereof, the Total Net Leverage Ratio determined on a Pro Forma Basis, as of the last day of the most recently ended Test Period (and without netting the cash proceeds of such Indebtedness in determining the Total Net Leverage Ratio), would not exceed 4.50:1.00; provided that any such Indebtedness shall satisfy the Required Debt Terms.

Appears in 1 contract

Sources: Revolving Credit and Guaranty Agreement (Compass, Inc.)

Indebtedness. Borrower shall not, and shall not permit Parent or any Restricted Subsidiary to, incur, create, assume, become or be liable in any manner with respect to, suffer or permit to exist, any Indebtedness or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly) the performance, dividends or other obligations of any Person, except: (a) ~~No Credit Party shall create, incur, assume or permit~~ the Obligations; (b) purchase money Indebtedness (including Capital Leases) arising after the date hereof to ~~exist any Indebtedness, except (without duplication) (i) Indebtedness~~ the extent secured by purchase money security interests in Equipment (including Capital Leases) and ~~Capital Leases permitted in clause~~ Inventory and purchase money mortgages on Real Property so long as such security interests and mortgages do not apply to any property of Borrower or any Restricted Subsidiary other than the Equipment or Real Property so acquired, and the Indebtedness secured thereby does not exceed the cost of the Equipment or Real Property so acquired, as the case may be; (c) guarantees by Parent or any Restricted Subsidiary of Borrower of the Obligations in favor of Agent or any Lender; (d) Indebtedness of ~~Section 6.7~~Borrower or any Restricted Subsidiary in connection with any Hedging Obligations; provided, that, such Hedging Obligations are with banks or other financial institutions that have combined capital and surplus and undivided profits of not less than $250,000,000 and are not for speculative purposes and such Indebtedness shall be unsecured; (iie) Indebtedness of Parent, Borrower or any Restricted Subsidiary the ~~Loans~~ net proceeds of which are used, at a time when no Event of Default exists and ~~the other Obligations, (iii) deferred taxes~~is continuing, to refinance existing Indebtedness under the ~~extent~~ Indentures; (f) Permitted Intercompany Indebtedness; (g) Indebtedness of Parent, Borrower or any Restricted Subsidiary incurred in connection with Floor Plan Financing Lines in the ordinary course of business; (h) unsecured Indebtedness of Borrower or any Restricted Subsidiary arising after the date hereof to any third person (other than Indebtedness otherwise permitted under ~~applicable law~~this Section 9.9), provided, that, each of the following conditions is satisfied as determined by Agent: (ivi) ~~unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law, (v) existing~~ such Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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~~ on terms and ~~substance reasonably satisfactory~~ conditions acceptable to Agent and shall be ~~pledged~~ subject and ~~delivered~~ subordinate in right of payment to the right of Agent to receive the prior indefeasible payment and satisfaction in full payment of all of the Obligations 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~~ terms of an intercreditor agreement between Agent and ~~records~~ such third party, in ~~a manner reasonably~~ form and substance satisfactory to Agent; , (Cii) Agent shall have received not less than ten (10) days prior written notice of the ~~obligations~~ intention of ~~each~~ Borrower ~~under~~ or any Restricted Subsidiary to incur such ~~Intercompany Notes~~ Indebtedness, which notice shall ~~be subordinated~~ set forth in reasonable detail satisfactory to Agent the ~~Obligations~~ amount of such ~~Borrower hereunder in a manner~~ Indebtedness, the person or persons to whom such Indebtedness will be owed, the interest rate, the schedule of repayments and maturity date with respect hereto and such other information as Agent may reasonably ~~satisfactory~~ request with respect thereto, (iii) Agent shall have received true, correct and complete copies of all agreements, documents and instruments evidencing or otherwise related to ~~Agent;~~ such Indebtedness, (Div) at on and before the ~~time any~~ date of incurring such ~~intercompany loan or advance is made by any Borrower to any other Borrower~~ Indebtedness 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~~shall exist or have occurred, (Xv) ~~the~~ Borrower ~~advancing such funds~~ shall ~~have Borrowing Availability under its separate Borrowing Base of~~ not, and shall not less than $1,00 after giving effect to such intercompany loan, or (Y) the intercompany Indebtedness 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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 allow any ~~time for all Credit Parties. (b) No Credit Party shall~~Restricted Subsidiary to, directly or indirectly, ~~voluntarily purchase~~(A) amend, modify, alter or change the terms of such Indebtedness or any agreement, document or instrument related thereto, except, that, Borrower and each Restricted Subsidiary 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 payments in respect thereof, or to forgive or cancel any portion of such Indebtedness (other than pursuant to payments thereof), or to reduce the interest rate or any fees in connection therewith, or (B) redeem, ~~defease~~ retire, defease, purchase or ~~prepay~~ otherwise acquire such Indebtedness (except pursuant to regularly scheduled payments permitted herein), or set aside or otherwise deposit or invest any ~~principal of~~sums for such purpose, ~~premium~~and (iv) Borrower shall furnish to Agent all notices or demands in connection with such Indebtedness either received by Borrower or any Restricted Subsidiary or on its behalf promptly after the receipt thereof, ~~if any~~or sent by Borrower or on its behalf concurrently with the sending thereof, ~~interest or other amount payable in respect of any Indebtedness, other than~~ as the case may be; (i) the ~~Obligations~~Indebtedness set forth on Schedule 9.9 to the Information Certificate; provided, that, (iii) ~~Indebtedness secured by a Permitted Encumbrance if the asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c)~~ Borrower and ~~(iii) Indebtedness permitted by Section 6.3(a)(v) upon~~ any ~~refinancing thereof in accordance with Section 6.3(a)(v).~~Restricted Subsidiary may only make regularly scheduled

Appears in 1 contract

Sources: Loan and Security Agreement (Champion Enterprises Inc)

Indebtedness. ~~(a) No Credit Party shall~~ The Company will not, and will not permit any of the Subsidiaries to, directly or indirectly create, incur, assume or ~~permit~~ otherwise become or remain directly or indirectly liable with respect to ~~exist~~ any ~~Indebtedness~~Indebtedness (other than Contingent Obligations permitted by Section 8.6 below), except for: (~~without duplication~~a) the Revolving Credit Obligations; (b) up to the aggregate sum of $15,000,000 outstanding at any time in (i) ~~Indebtedness~~ secured ~~by purchase money security interests and Capital Leases permitted in clause (c) or (d) of Section 6.7~~nonrecourse Indebtedness, (ii) secured or unsecured capital lease or purchase money Indebtedness incurred to finance the ~~Loans~~ acquisition of capital assets or real estate in connection with the business of the Company or any Restricted Subsidiary, provided that such Indebtedness (A) has a scheduled maturity and is not due on demand and (B) is secured only by the ~~other Obligations~~property being purchased and does not exceed the purchase price thereof, and (iii) ~~deferred taxes,~~ non-facility letters of credit for which the Administrative Agent has established a reserve against the Borrowing Base in the aggregate stated amount of all such letters of credit; (c) unsecured indebtedness subordinated to the ~~extent permitted under applicable law~~Revolving Credit Commitments, (iv) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 subordinated in a manner ~~reasonably~~ satisfactory to the Administrative 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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.; (bd) ~~No Credit Party shall, directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest~~ Hedging Obligations or other ~~amount payable~~ Indebtedness to a Lender evidenced by interest rate agreements in respect of interest rate, swap, collar, cap or similar agreements pursuant to which the Company ▇▇▇▇▇▇ its actual interest rate exposure under the Revolving Loans; and (e) intercompany Indebtedness incurred by any ~~Indebtedness, other than~~ Restricted Subsidiary to (i) the ~~Obligations,~~ Company or to (ii) ~~Indebtedness secured by a Permitted Encumbrance if the asset securing~~ any Restricted Subsidiary wholly owning such Restricted Subsidiary; provided, however, that such Indebtedness ~~has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness~~ constitutes an Investment permitted by Section ~~6.3(a)(v) upon any refinancing thereof~~ 8.11 of this Agreement and does not cause the Company and its Subsidiaries to exceed the Maximum New Market Investment Amount. 10. Section 8.7, “Operating Lease Rentals,” of the Credit Agreement is hereby amended to recite in ~~accordance with Section 6.3(a)(v).~~its entirety as follows:

Appears in 1 contract

Sources: Credit Agreement (Dominion Homes Inc)

Indebtedness. The Company will not, and 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 Specified Qualified Lessees to incur Indebtedness for borrowed money, in each case except the following Indebtedness, which may be incurred subject to the requirements of the last paragraph of this section: (a) ~~No Credit Party shall create, incur, assume or permit to exist any Indebtedness, except~~ Indebtedness evidenced by the Financing Documents; (~~without duplication~~b) Indebtedness of the Company (i) that is not related to, and does not support, Non-Recourse Debt of a Project Finance Subsidiary and (ii) if incurred, would not result in a breach of Section 9.9; provided that if the Indebtedness is proposed to be secured by ~~purchase money security interests~~ any of the Collateral, then at least five Business Days (or such shorter period reasonably agreed by the 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 ~~Capital Leases permitted~~ 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 or all of the Collateral) and (y) deliver to the Collateral Agent and the other Secured Parties an executed joinder agreement substantially in ~~clause~~ 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; ANNEX A-28 (ci) Non-Recourse Debt incurred by a Project Finance Subsidiary of the Company (including Non-Recourse Debt incurred by such Project Finance Subsidiary prior to being acquired by the Company or (da Subsidiary) ~~of Section 6.7~~to fund a New Project, (ii) any Indebtedness in 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 unfunded under applicable law, (v) existing Indebtedness described form of a pledge of Capital Stock in Disclosure Schedule (6.3) and refinancings thereof or 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 Project Finance Subsidiary 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 Non-Recourse Debt 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) Project Finance Subsidiary and (iii) Indebtedness ~~permitted~~ in the form of Guaranties by ~~Section 6.3(a)(v~~the 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) ~~upon~~ Indebtedness of any ~~refinancing thereof~~ such Qualified Lessee (i) in ~~accordance with Section 6.3(a)(v~~an aggregate principal amount for such Qualified Lessee of up to the greater of (A) $5,000,000 and (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 each case on a 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, that for purposes of this clause (d)., all Consolidated Qualified Lessees will be treated as one Qualified Lessee;

Appears in 1 contract

Sources: Note Purchase Agreement (InfraREIT, Inc.)

Indebtedness. ~~(a) No Credit Party shall create~~Create, incur, assume or ~~permit~~ suffer to exist any Indebtedness, ~~except~~ except: (~~without duplication~~a) secured or unsecured notes and/or loans (and/or commitments in respect thereof) issued or incurred by the Borrower (or a co-issuer in addition thereto) in lieu of New Term Loans (and/or New Term Commitments in respect thereof) (such notes or loans, “Incremental Equivalent Debt”); provided that (i) ~~Indebtedness secured by purchase money security interests and Capital Leases permitted in clause~~ the aggregate outstanding principal amount (c) or (dcommitted amount, if applicable) of ~~Section 6.7~~all Incremental Equivalent Debt shall not exceed the Incremental Cap, (ii) any such notes and/or loans that are secured shall be secured only by the ~~Loans~~ Collateral and on a pari passu or junior basis with the ~~other~~ Secured Obligations, (iii) ~~deferred taxes~~any such Indebtedness that ranks pari passu in right of security or is subordinated in right of payment or security shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent, (iv) any such Indebtedness shall be subject to the same restrictions applicable to New Term Loans set forth in Section 2.14(e)(i) and (v) if such Incremental Equivalent Debt is in the form of loans (and/or commitments in respect thereof) that rank pari passu in right of security and in right of payment with the Secured Obligations, such Indebtedness shall be subject to the restrictions applicable to New Term Loans set forth in Section 2.14(e)(v)(B); (b) Indebtedness of the Loan Parties under the Loan Documents and any Permitted Refinancing in respect thereof; provided that (i) such Permitted Refinancing may be secured or unsecured, and, if secured, (x) is secured only by the Collateral and on a pari passu or subordinated basis with the Obligations (provided that such Permitted Refinancing shall not consist of bank loans outside this Agreement that are secured by the Collateral on a pari passu basis with the Obligations under this Agreement) and (y) is subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent and (ii) the terms (excluding pricing (including call premiums), fees and rate floors) of such Permitted Refinancing are not, when taken as a whole, more favorable to the lenders providing such Permitted Refinancing than those applicable to the Facility being refinanced thereby (other than any covenants or other provisions applicable only to periods after the Latest Maturity Date (as of the date of incurrence of such Permitted Refinancing)); (c) Indebtedness of the Borrower and its Subsidiaries outstanding on the Effective Date and listed in Schedule 7.03(c) and any Permitted Refinancing thereof; (d) Guarantees by the Borrower or any Restricted Subsidiary in respect of Indebtedness of the Borrower or such Restricted Subsidiary otherwise permitted hereunder and to the extent permitted ~~under applicable law~~by Section 7.02; provided that (A) no Guarantee by any Restricted Subsidiary of any Indebtedness constituting a Junior Financing shall be permitted unless such Restricted Subsidiary shall have also provided a Guarantee of the Obligations substantially on the terms set forth in the Guaranty and Security Agreement and (B) if the Indebtedness being Guaranteed is subordinated to the Obligations, such Guarantee shall be subordinated to the Guaranty on terms at least as favorable to the Lenders as those contained in the subordination provisions of such Indebtedness; (ive) ~~unfunded pension fund and other employee benefit plan obligations and liabilities~~ Indebtedness of the Borrower or any Restricted Subsidiary owing to the Borrower or any Restricted Subsidiary to the extent ~~they are~~ such Investment is permitted by Section 7.02; provided that all such Indebtedness of any Loan Party to ~~remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto~~ any Subsidiary that do is 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~~ Loan Party must 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 expressly subordinated to the Obligations of such ~~Borrower hereunder~~ Loan Party; (f) Capitalized Lease Obligations and purchase money obligations (including obligations in respect of mortgage, industrial revenue bond, industrial development bond, and similar financings) to finance the purchase, repair or improvement of fixed or capital assets within the limitations set forth in Section 7.01(i); provided that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed the greater of (A) $12,500,000 and (B) 2.75% of Total Assets as of the end of the Test Period last ended; (g) Indebtedness of Restricted Subsidiaries that are not Loan Parties in an aggregate principal amount at any time outstanding for all such Persons taken together not exceeding the greater of (A) $7,500,000 and (B) 1.75% of Total Assets as of the end of the Test Period last ended; (h) Indebtedness in respect of Swap Contracts not entered into for speculative purposes; (i) Indebtedness which constitutes “Indebtedness” solely as a ~~manner reasonably satisfactory~~ result of clause (e) of the definition of “Indebtedness” subject to ~~Agent~~Liens permitted under Section 7.01; (j) (i) Indebtedness assumed in connection with any Permitted Acquisition; ~~(D) at the time any~~ provided that such ~~intercompany loan or advance is made by any Borrower to any other Borrower~~ Indebtedness was not incurred in contemplation of such Permitted Acquisition; and ~~after giving effect thereto, each such Borrower shall be Solvent; (E) no Default or Event of Default would occur~~ provided further that both immediately prior and ~~be continuing~~ after giving effect to any ~~such proposed intercompany loan;~~ Indebtedness assumed pursuant to this clause (j)(i), (x) no Event of Default shall exist or result therefrom and (~~F) in the case of any intercompany Indebtedness, (X~~y) the Borrower ~~advancing~~ and its Restricted Subsidiaries shall be in Pro Forma Compliance with the covenants set forth in Section 7.10 and (ii) any Permitted Refinancing thereof; (k) Indebtedness representing deferred compensation to current or former officers, directors, members of management, consultants and employees of Holdings, the Borrower or any Restricted Subsidiary; (l) Indebtedness constituting obligations for indemnification, the adjustment of the purchase price or similar adjustments (including, without limitation, earnout obligations) incurred under agreements for a permitted acquisition or Disposition; (m) Indebtedness consisting of obligations of the Borrower or any Restricted Subsidiary under deferred compensation or other similar arrangements incurred by such ~~funds shall have Borrowing Availability under its separate Borrowing Base~~ Person in connection with the Transactions, permitted acquisitions and any other Investment expressly permitted hereunder; (n) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements, overdraft protections and similar arrangements in each case in connection with cash management and deposit accounts; (o) Indebtedness in an aggregate principal amount at any time outstanding not ~~less~~ to exceed the greater of (A) $17,500,000 and (B) 4.0% of Total Assets as of the end of the Test Period last ended; (p) Indebtedness consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business; (q) Indebtedness incurred by the Borrower or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including in respect of workers compensation claims, unemployment insurance, other social security legislation, health, disability or other employee benefits or property, casualty, liability or other insurance or reimbursement claims or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims; provided that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within thirty (30) days following such drawing or incurrence; (r) obligations in respect of surety, stay, customs, bid and appeal bonds, performance bonds and performance and completion guarantees and other obligations of a like nature provided by the Borrower or any Restricted Subsidiary or obligations in respect of letters of credit related thereto, in each case in the ordinary course of business or consistent with past practice; (s) Indebtedness in respect of (x) any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business or (y) any letter of credit issued in favor of the L/C Issuers or the Swing Line Lender to support any Defaulting Lender’s participation in Letters of Credit or Swing Line Loans, respectively, as contemplated by Section 2.03(a)(ii)(H), 2.04(b) or 2.17(a)(ii), respectively; (t) subordinated Indebtedness of Holdings (in a principal amount not to exceed the purchase or redemption price of any such purchase or redemption permitted by Section 7.06) to current or former officers, directors, managers, consultants and employees, their Controlled Investment Affiliates or Immediate Family Members to finance the purchase or redemption of Equity Interests (other than ~~$1,00~~ Disqualified Equity Interests) of Holdings (or any direct or indirect parent thereof) permitted by Section 7.06; (u) [Reserved]; (v) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; (w) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (v) above and (y) below; (x) [Reserved]; and (i) Permitted Second Lien Indebtedness, Permitted Subordinated Indebtedness or Permitted Unsecured Indebtedness; provided that (x) the Total Leverage Ratio on a Pro Forma Basis for the Test Period most recently ended after giving effect to the incurrence of such ~~intercompany loan, or (Y) the intercompany~~ Indebtedness shall be ~~a Great Northern Advance, (ix) Indebtedness owing~~ equal 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 Termination Date and as~~ or less than 3.75 to ~~which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the extent permitted under Section 6.17~~ 1.00 and (xiy) 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) No Credit Party shall, directly no Event of Default shall have occurred and be continuing 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,~~ would result therefrom and (ii) ~~Indebtedness secured by a~~ Permitted ~~Encumbrance if~~ Refinancings of the asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).foregoing

Appears in 1 contract

Sources: Credit Agreement (Fogo De Chao, Inc.)

Indebtedness. ~~(a) No Credit Party~~ The Borrower shall not, and shall not ------------ permit any of its Subsidiaries to, directly or indirectly, create, incur, ~~assume~~ assume, guarantee, or ~~permit~~ otherwise become or remain liable with respect to ~~exist~~ any Indebtedness, ~~except~~ except: (~~without duplication~~a) the Obligations; (ib) any Indebtedness ~~secured by purchase money security interests and Capital Leases permitted in clause~~ of Subsidiaries under the Loan Documents; (c) or Subordinated Debt under the Senior Subordinated Credit Agreement and guaranties thereof by Subsidiaries which are subordinated, on terms satisfactory to the Agent, to the Subsidiary Guaranty; (d) ~~of Section 6.7~~Existing Indebtedness, but not any extension, refunding or refinancing thereof; (e) Indebtedness incurred in connection with Permitted Acquisitions (including, without limitation, (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 unfunded under applicable law, (vx) existing Indebtedness ~~described~~ of any Person that becomes a Subsidiary and (y) Indebtedness assumed by the Borrower or any Subsidiary or that is secured by any asset acquired by the Borrower or any Subsidiary, in ~~Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do~~ each case upon consummation of such Permitted Acquisition), in an aggregate amount 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~~ exceed $50,000,000 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; outstanding, provided -------- that (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; (Di) at the time of incurrence of any such ~~intercompany loan or advance is made by any Borrower to any other Borrower and after giving effect thereto~~Indebtedness, ~~each such Borrower~~ the Pro Forma Fixed Charges Coverage Ratio shall be ~~Solvent~~not less than 1.0:1.0; (Eii) no Default or Event of Default ~~would occur~~ shall have occurred and be continuing ~~after giving effect to~~ or shall result from the Permitted Acquisition (including by reason of any Indebtedness incurred in connection with such ~~proposed intercompany loan;~~ Permitted Acquisition), and (Fiii) ~~in the case~~ not more than $15,000,000 of such Indebtedness at any ~~intercompany~~ time outstanding shall be Indebtedness that is not Permitted Seller Indebtedness. (f) purchase money Indebtedness, including Capitalized Lease Obligations; provided that (Xi) such Indebtedness is incurred in connection with -------- a Capital Expenditure permitted by Section 6.05 63 hereof, (ii) is secured only by Liens permitted by Section 6.01(e), (iii) does not exceed the cost to the Borrower ~~advancing such funds shall have Borrowing Availability under~~ or its ~~separate Borrowing Base~~ Subsidiary of ~~not less than $1,00 after giving effect to such intercompany loan,~~ the assets constructed or ~~(Y)~~ acquired with the ~~intercompany Indebtedness shall be a Great Northern Advance, (ix) Indebtedness owing to Affiliates and holders of Stock~~ proceeds of such ~~Credit Party that constitutes Subordinated Debt~~Indebtedness and (iv) is incurred within twelve (12) months following the date of the completion or acquisition of the asset so constructed or acquired; (g) Intercompany Indebtedness of a Subsidiary to the Borrower or a Wholly Owned Subsidiary, is unsecured, interest on which is not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the extent permitted ~~under Section 6.17~~ by Sections 6.04(c) and (xid) hereof; (h) other unsecured Indebtedness not ~~otherwise referred to~~ in ~~this Section 6.3 not exceeding~~ excess of $~~1,000,000 in aggregate principal amount outstanding~~ 5,000,000 at any time ~~for all Credit Parties.~~outstanding; (bi) ~~No Credit Party shall~~Indebtedness incurred to refinance Indebtedness described in clauses (e) and (f), ~~directly or indirectly~~provided, ~~voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable in respect of any Indebtedness, other than~~ that (i) the ~~Obligations~~unpaid balance is not increased, -------- (ii) such refinancing Indebtedness ~~secured by a Permitted Encumbrance~~ is Subordinated Debt if (x) the ~~asset securing such~~ Indebtedness ~~has been sold or otherwise disposed of in accordance with Sections 6.8(b)~~ being refinanced is Subordinated Debt or (cy) the Indebtedness being refinanced is Permitted Seller Indebtedness, and (iii) if the Indebtedness ~~permitted~~ being refinanced is Subordinated Debt, (a) no mandatory payments of principal thereof are required prior to the date that is one year after the Maturity Date, (b) the final maturity thereof is not before the later of (I) one year after the Maturity Date or (II) the final maturity date of the Subordinated Debt being refinanced, (c) the terms thereof are not in any respect more restrictive than the terms of the Subordinated Debt being refinanced and the subordination provisions applicable thereto are at least as favorable to the Lenders as such provisions applicable to the Subordinated Debt being refinanced and (d) cash interest payments payable with respect thereto are payable at an interest rate not materially higher than the interest rate applicable to the Indebtedness being refinanced; (j) Indebtedness of the Borrower or a Mortgage Banking Subsidiary comprised of its obligation to repurchase mortgage loans pursuant to mortgage loan purchase and sale agreements entered into in connection with Mortgage Banking Activities; (k) Melody Permitted Indebtedness; and (l) Indebtedness of the Borrower comprised of a guaranty by ~~Section 6.3(a)(v~~Borrower of (i) ~~upon any refinancing thereof~~ the Melody Seller Senior Notes and the Melody Seller Contingent Notes and (ii) the obligations of WREAP under the Amended and Restated Westmark Subordinated Credit Agreement, provided that in ~~accordance with Section 6.3(a)(v)~~respect of clause (ii) such guaranty is subordinated to prior payment in full of the Obligations on terms satisfactory to the Agent and the Lenders, and such guaranty shall constitute "Subordinated Debt" for all purposes hereof.

Appears in 1 contract

Sources: Senior Secured Credit Agreement (Cb Commercial Holdings Inc)

Indebtedness. ~~(a) No Credit Party shall~~ Borrower will not and will not permit any of its Subsidiaries directly or indirectly to create, incur, ~~assume~~ assume, guaranty, or ~~permit~~ otherwise become or remain directly or indirectly liable with respect to ~~exist~~ any ~~Indebtedness, except~~ Indebtedness except: (~~without duplication~~a) The Obligations; (b) Intercompany Indebtedness among Borrower and its Subsidiaries; PROVIDED that the obligations of each obligor of such Indebtedness shall: (i) ~~Indebtedness secured~~ 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 ~~purchase money security interests and Capital Leases permitted in clause (c)~~ acceleration or ~~(d) of Section 6.7,~~ otherwise); (ii) ~~the Loans and the other Obligations~~be evidenced by promissory notes, (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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing the (A) each Borrower which shall have ~~executed and delivered~~ been pledged to ~~each other Borrower~~Agent, on for the ~~Closing Date~~benefit of Lenders, 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; and (Biii) ~~each~~ have such other terms and provisions as Agent may reasonably require; (c) Indebtedness arising as a result of Contingent Obligations permitted under subsection 7.4; (d) Indebtedness of Borrower ~~shall record~~ evidenced by the Seller Subordinated Note; (e) Indebtedness existing on the Closing Date and set forth on Schedule 7.1 and all ~~intercompany transactions on its books and records in a manner reasonably satisfactory to Agent;~~ replacements, renewals, extensions or amendments thereof so long as (Ci) the ~~obligations of each Borrower under any such Intercompany Notes shall be subordinated to the Obligations~~ principal amount of such ~~Borrower hereunder in a manner reasonably satisfactory~~ Indebtedness after such replacement, renewal, extension or amendment shall not exceed the principal amount of such Indebtedness which was outstanding immediately prior to ~~Agent;~~ such replacement, renewal, extension or amendment, (Dii) ~~at the time any~~ such ~~intercompany loan or advance is made~~ Indebtedness shall not be secured by any ~~Borrower~~ assets other than assets securing such Indebtedness prior to ~~any other Borrower and after giving effect thereto~~such replacement, ~~each such Borrower shall be Solvent; (E) no Default~~ renewal, extension or ~~Event of Default would occur and be continuing after giving effect to any such proposed intercompany loan;~~ amendment, and (Fiii) in the case of any ~~intercompany~~ replacement of such Indebtedness, the interest rate, amortization rate and other terms of the replacement Indebtedness are not materially different from the Indebtedness being replaced; (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 shall be a Great Northern Advance, (ixf) Indebtedness ~~owing~~ not to ~~Affiliates and holders of Stock of such Credit Party that constitutes Subordinated Debt, is unsecured, interest on which is not payable~~ exceed $200,000 in ~~cash until after~~ the Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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~~outstanding secured by purchase money Liens; and (g) Indebtedness incurred with respect to Capital Leases not in excess of 500,000 in the aggregate during each Fiscal Year. (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, (iih) Indebtedness ~~secured~~ incurred with respect to the acquisition by ~~a Permitted Encumbrance if~~ Borrower or one of its Subsidiaries of certain real property located in Denver County, Colorado 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 ~~asset securing~~ terms and conditions of such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v)Indebtedness.

Appears in 1 contract

Sources: Credit Agreement (Spinnaker Industries Inc)

Indebtedness. ~~(a) No Credit Party shall~~ Holdings will not, and will not permit any of its Subsidiaries to, contract, create, incur, assume or ~~permit~~ suffer to exist any Indebtedness, ~~except~~ except: (a) Indebtedness incurred pursuant to this Agreement and the other Credit Documents; (b) Indebtedness existing on the date hereof and described on Schedule III (as reduced by any repayments thereof before, on or after the Effective Date), without ~~duplication~~giving effect to any subsequent extension, renewal or refinancing thereof (“Retained Existing Indebtedness”); (c) Swap Agreements entered into (i) to hedge or mitigate risks to which the US Borrower or any of its Subsidiaries has actual exposure (other than those in respect of 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 of its Subsidiaries); (i) Indebtedness ~~secured~~ of a Subsidiary acquired pursuant to a Permitted Acquisition (or Indebtedness assumed by ~~purchase money security interests~~ 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 connection with, or in anticipation or contemplation of, such Permitted Acquisition and ~~Capital Leases permitted in clause (c) or (d) of Section 6.7,~~ (ii) Capitalized Lease Obligations and Indebtedness of the US Borrower and any of its Subsidiaries representing purchase money Indebtedness secured by Liens permitted pursuant to Section 7.03(1); provided that the sum of (1) the aggregate principal amount of 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 after the Effective Date and outstanding at any time (including Indebtedness evidenced by Capitalized Lease Obligations arising from Permitted Sale-Leaseback Transactions) plus (3) the aggregate principal amount of all such purchase money Indebtedness incurred pursuant to this Section 7.04(d) on and after the Effective Date and outstanding at any time, shall not exceed $40,000,000; (e) Indebtedness constituting Intercompany 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing theby Section 7.05(f); (Af) ~~each Borrower shall have executed and delivered to each other Borrower~~Permitted Subordinated Refinancing Indebtedness, 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 so long 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~~ is in existence at the time of any incurrence thereof and ~~be continuing~~ 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; (g) unsecured Indebtedness of the US Borrower and any other US Credit Party that is a Subsidiary Guarantor incurred under the Senior Subordinated Notes and the other Senior Subordinated Note Documents in an aggregate principal amount not in excess of the aggregate principal amount of the Senior Subordinated Notes outstanding immediately after the consummation of the Debt Tender Offer (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 ~~proposed intercompany loan;~~ Subsidiary is a US Credit Party and such Guaranty is subordinated to the Guaranty pursuant to the US Collateral and Guaranty Agreement on terms no less favorable to the Lenders than the subordination provisions of the Senior Subordinated Notes; (h) unsecured Indebtedness of Holdings under (i) Holdings Notes having an aggregate accreted value of $303,100,000, plus the aggregate principal amount of any additional Holdings Notes issued, or the additional accretion of principal on the Holdings Notes, in each case after the date hereof in respect of regularly scheduled interest payments thereon in accordance with the terms thereof and hereof and less the amount of any repayments of principal thereof after the Effective Date and (Fii) ~~in the case of~~ any ~~intercompany~~ Permitted Holdings Refinancing Indebtedness, ~~(X)~~ so long as no Default or Event of Default is in existence at the ~~Borrower advancing~~ time of incurrence of such ~~funds shall have Borrowing Availability under its separate Borrowing Base of not less than $1,00~~ Permitted Holdings Refinancing Indebtedness and immediately after giving effect to such intercompany loan, or (Y) the intercompany Indebtedness 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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.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) Indebtedness of the ~~Obligations~~US Borrower or any of its Subsidiaries that may be deemed to exist in connection with agreements providing for indemnification, ~~(ii) Indebtedness secured by a Permitted Encumbrance if the asset securing such Indebtedness has been sold~~ payment of purchase price, purchase price adjustments, earn-outs and similar obligations in connection with acquisitions or ~~otherwise disposed~~ sales of assets and/or businesses effected in accordance with ~~Sections 6.8(b)~~ the requirements of this Agreement (so long as any such obligations are those of the Person making the respective acquisition or ~~(c)~~ sale and ~~(iii) Indebtedness permitted~~ are not guaranteed by ~~Section 6.3(a)(v) upon~~ any ~~refinancing thereof in accordance with Section 6.3(a)(v~~other Person).;

Appears in 1 contract

Sources: Credit Agreement (Compass Minerals International Inc)

Indebtedness. ~~(a) No Credit Party~~ Neither the Borrower nor any of its Subsidiaries shall directly or indirectly create, incur, assume or ~~permit~~ otherwise become or remain directly or indirectly liable with respect to ~~exist~~ any Indebtedness, ~~except (without duplication) (i)~~ except: the Secured Obligations; Permitted Existing Indebtedness and Permitted Refinancing Indebtedness; Indebtedness in respect of obligations secured by ~~purchase money security interests~~ Customary Permitted Liens; Indebtedness constituting Contingent Obligations permitted by Section 7.3(E); Indebtedness arising from intercompany loans and ~~Capital Leases permitted in clause~~ advances (ca) from any Subsidiary of the Borrower to the Borrower or any other Loan Party, or (db) from the Borrower to any wholly-owned Subsidiary of ~~Section 6.7~~the Borrower; provided, ~~(ii)~~ that if the ~~Loans and~~ Borrower or any Subsidiary Guarantor is 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 unfunded under applicable law, (v) existing obligor on any such Indebtedness described in ~~Disclosure Schedule~~ this clause (~~6.3) and refinancings thereof or 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~~v), ~~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 expressly subordinate to the payment in ~~form and substance~~ full in cash of the Secured Obligations on terms 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 Administrative Agent; secured or unsecured purchase money Indebtedness (Cincluding, without limitation, Capitalized Leases) incurred by the ~~obligations~~ Borrower or any of ~~each Borrower under any such Intercompany Notes shall be subordinated~~ its Subsidiaries after the Closing Date to finance the ~~Obligations~~ acquisition of ~~such Borrower hereunder in a manner reasonably satisfactory to Agent;~~ fixed assets, if (D1) at the time ~~any~~ of such ~~intercompany loan or advance is made by any Borrower to any other Borrower and after giving effect thereto~~incurrence, ~~each such Borrower shall be Solvent; (E)~~ no Default or ~~Event~~ 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 ~~Default would occur and be continuing after giving effect to any~~ the fair market value or the cost of the applicable fixed assets on the date acquired, (4) such ~~proposed intercompany loan; and (F)~~ Indebtedness does not exceed $5,000,000 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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.~~ 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"); 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) ~~No Credit Party shall, directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable~~ 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 Indebtedness, other than (i) the Obligations, (ii) Indebtedness secured by a Permitted Encumbrance if the asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v)time outstanding not exceeding $5,000,000.

Appears in 1 contract

Sources: Credit Agreement (Steiner Leisure LTD)

Indebtedness. The Administrative Agent shall be satisfied that the Borrower and IBP have made adequate arrangements to ensure that (aand the Borrower hereby covenants that prior to the close of business on the date of the first Borrowing hereunder) No all credit exposures outstanding under the IBP Credit ~~Party~~ Agreement shall ~~create~~have been substantially simultaneously repaid, ~~incur~~prepaid, ~~assume~~ defeased or ~~permit~~ refinanced and all commitments thereunder shall have been terminated (or irrevocable notice of termination shall have been given by IBP), and after giving effect thereto and to ~~exist any Indebtedness~~the other transactions contemplated to occur in connection with the completion of the Tender Offer, ~~except~~ the Borrower and its Subsidiaries (~~without duplication~~including IBP and its Subsidiaries) shall have outstanding no Indebtedness other than (i) commitments and Indebtedness ~~secured~~ under or permitted by ~~purchase money security interests~~ this Agreement and ~~Capital Leases permitted in clause (c) or (d) of Section 6.7~~the Existing Credit Agreement, (ii) Indebtedness under the ~~Loans and the other Obligations~~Borrower's commercial paper program, (iii) ~~deferred taxes~~Indebtedness under the Receivables Facility or the Receivables Bridge Facility, ~~to the extent permitted under applicable law,~~ and (iv) ~~unfunded pension fund and other employee benefit plan obligations and liabilities to~~ the ~~extent they are permitted to remain unfunded under applicable law~~Indebtedness of IBP listed on Schedule 5.01(j) hereto the terms of which, ~~(v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof~~ as amended or 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 waived in a manner ~~reasonably~~ satisfactory ~~to Agent; (C) the obligations of each Borrower under any such Intercompany Notes shall be subordinated~~ in all respects to the ~~Obligations of such Borrower hereunder in a manner reasonably satisfactory to Agent; (D) at~~ Lenders, are not violated by the ~~time any such intercompany loan or advance is made by any Borrower to any other Borrower~~ Transactions 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) No Credit Party shalldo not, directly or indirectly, ~~voluntarily purchase~~prohibit IBP from guaranteeing Indebtedness of the Borrower or paying dividends to the Borrower; provided, ~~redeem~~however, ~~defease~~ that in connection with the Merger, certain actions will be taken and consents or ~~prepay any principal of, premium, if any, interest or other amount payable~~ waivers obtained prior to the closing of the Merger in respect of certain Indebtedness of IBP and its Subsidiaries, which Indebtedness shall not be excess of $30,000,000 and shall not in any ~~Indebtedness, other than (i)~~ case adversely affect the ~~Obligations, (ii) Indebtedness secured by a Permitted Encumbrance if~~ ability of the ~~asset securing such Indebtedness has been sold~~ Borrower or ~~otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v)~~IBP to complete the Merger.

Appears in 1 contract

Sources: Credit Agreement (Ibp Inc)

Indebtedness. ~~(a) No Credit Party~~ The Borrower shall ~~create,~~ not at any time after the Closing Date incur, assume or ~~permit~~ suffer to exist any Indebtedness, except (~~without duplication) (i~~a) Indebtedness ~~secured by purchase money security interests~~ under the Permitted Borrowings and ~~Capital Leases permitted in clause~~ any extensions, renewals, refinancing and replacements of such Indebtedness, (b) Indebtedness owed to any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, (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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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~~performance bonds, ~~other than~~ bid bonds, appeal bonds, surety bonds and similar obligations provided in the ordinary course of business, (id) the Obligations, (iie) Indebtedness secured by Permitted Liens, (f) Indebtedness in connection with the Borrower’s acquisition of a business or property; provided, that, with respect to any such single acquisition the total consideration of which is in excess of $2,000,000, or acquisitions in excess of $5,000,000 over the term of this Agreement, the terms of such acquisition or acquisitions shall be on terms satisfactory to the Lender; provided, for clarity, that Indebtedness incurred from any Permitted Lender pursuant to this clause (f) shall not reduce the Indebtedness limitation set forth in clause (a) above. In connection with the execution and delivery of the documentation evidencing the Permitted Borrowings, the Lender shall agree to subordinate its liens with respect to the Term Loans if requested by a Permitted ~~Encumbrance if~~ Lender (subject to the ~~asset securing~~ terms of a commercially reasonable intercreditor agreement) and to execute and deliver such ~~Indebtedness has been sold or otherwise disposed~~ other documents as may be reasonably requested by the Borrower (at the sole expense of ~~in accordance with Sections 6.8(b) or (c~~the Borrower) and (~~iii~~g) ~~Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof~~ payables incurred in ~~accordance~~ the ordinary course of business and consistent with ~~Section 6.3(a)(v)~~Borrower’s past practices.

Appears in 1 contract

Sources: Term Loan Agreement (Point.360)

Indebtedness. ~~(a) No Credit Party~~ Neither the Company nor any of its Subsidiaries shall directly or indirectly create, incur, assume or ~~permit~~ otherwise become or remain directly or indirectly liable with respect 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing theexcept: (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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and~~ Existing Indebtedness; (iii) Indebtedness in respect of obligations secured by Customary Permitted Liens; (iv) Indebtedness constituting Contingent Obligations permitted by Section ~~6.3(a)(v~~7.3(E); (v) ~~upon~~ Indebtedness arising from intercompany loans and advances; provided, that, 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 ~~refinancing~~ time outstanding; provided further, that such intercompany loans and advances shall be subject to the subordination provisions of Section 10.14 of this Agreement and Section 6 of the 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 a Permitted Acquisition, so long as such Indebtedness was not incurred in contemplation of such acquisition; (ix) Indebtedness that is subordinated to the Obligations pursuant to an agreement reasonably acceptable to the Administrative Agent; (x) Indebtedness consisting of promissory notes issued to redeem Equity Interests of the Company permitted hereby; (xi) Indebtedness with respect to surety, appeal and performance bonds obtained by the Company or any of its Subsidiaries in the ordinary course of business; (xii) Indebtedness evidenced by the Senior Notes, the 2008 Senior Notes, and the 2009 Senior Notes (including any Indebtedness of the Subsidiary Guarantors arising under a guaranty of the Senior Notes, the 2008 Senior Notes, or the 2009 Senior Notes), Indebtedness evidenced by the Revolving Credit Facility (including any increases pursuant to Section 2.22 thereof and including any Indebtedness of the Subsidiary Guarantors arising under a guaranty of the obligations thereunder), and Indebtedness evidenced by the 2008 Term Loan Facility (including, in ~~accordance with~~ each case, any Indebtedness of the Subsidiary Guarantors arising under a guaranty of the obligations thereunder); (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, (2) such Indebtedness does not exceed the lower of the fair market value or the cost of the applicable assets on the date acquired, (3) such Indebtedness does not exceed $20,000,000 in the aggregate outstanding at any time, and (4) any Lien securing such Indebtedness is permitted under Section ~~6.3(a)(v~~7.3(C).; (xiv) Receivables Facility Attributed Indebtedness in an aggregate amount not to exceed $75,000,000 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 and maintenance of such additional Indebtedness does not cause a violation of the Leverage Ratio as most recently calculated hereunder; and provided further that no Default or Unmatured Default shall have occurred and be continuing at the date of such incurrence or would result therefrom; and

Appears in 1 contract

Sources: Term Loan Credit Agreement (Woodward Governor Co)

Indebtedness. ~~(a) No Credit Party~~ Borrower shall not create, incur, assume or ~~permit~~ suffer to exist any Indebtedness, except the following (~~without duplication)~~ collectively, "PERMITTED INDEBTEDNESS"): (i) Indebtedness ~~secured by purchase money security interests and Capital Leases permitted in clause (c) or (d) of Section 6.7~~under the Loan Documents, (ii) ~~the Loans and the other Obligations~~any Indebtedness set forth on Schedule 7.2, (iii) ~~deferred taxes,~~ Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens as along as the ~~extent permitted under applicable law~~effect of incurring the Capitalized Lease Obligations and/or Indebtedness does not violate (or with the passage of time) the financial covenants set forth in Annex I, (iv) ~~unfunded pension fund and other employee benefit plan obligations and liabilities~~ Indebtedness in connection with advances made by a stockholder in order to cure any default of the ~~extent they are permitted~~ financial covenants set forth on Annex I; provided, however, that such Indebtedness owed to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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~~ 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 ~~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~~Lender; (Bv) 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 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) case incurred in the ~~case~~ ordinary course of ~~any intercompany Indebtedness~~business and paid within such time period, ~~(X)~~ unless the ~~Borrower advancing~~ same are being contested in good faith and by appropriate and lawful proceedings and 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) No Credit Party shall, directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premiumreserves, if any, ~~interest~~ 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 ~~other amount payable~~ in ~~respect~~ the aggregate outstanding at any one time; provided, however, that such Indebtedness 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. Borrower shall not make prepayments on any ~~Indebtedness,~~ existing or future Indebtedness to any Person other than ~~(i)~~ to Lender or to the Obligations, (ii) Indebtedness secured by a Permitted Encumbrance if the asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness extent specifically permitted by ~~Section 6.3(a)(v) upon~~ this Agreement or any ~~refinancing thereof in accordance with Section 6.3(a)(v~~subsequent agreement between Borrower and Lender).

Appears in 1 contract

Sources: Revolving Credit, Term Loan and Security Agreement (Opticare Health Systems Inc)

Indebtedness. ~~(a) No Credit Party shall create~~Create, incur, assume or ~~permit~~ suffer to exist any ~~Indebtedness,~~ Indebtedness (exclusive of trade debt) except in respect of: (~~without duplication) (i~~a) Indebtedness to Lenders and Agent, including Indebtedness of any Borrower pursuant to a Lender-Provided Interest Rate Hedge; (b) Indebtedness incurred for Capital Expenditures permitted under Section 7.6 hereof; (c) 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 ~~Capital Leases permitted~~ purchase money mortgages on Real Property not to exceed $150,000 in ~~clause (c)~~ 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 Real Property so acquired, and the Indebtedness secured thereby does not exceed the cost of the Equipment or Real Property so acquired, as the case may be; (d) Indebtedness 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 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 right of 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 Agent, in form and substance satisfactory to Agent; (ii) Agent shall have received true, correct and complete copies of all agreements, documents 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 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; (iv) the aggregate principal amount of such unsecured Indebtedness incurred during the Term shall not exceed $150,000; (v) as of the date of incurring such unsecured Indebtedness and after giving effect thereto, ~~each such Borrower~~ there shall ~~be Solvent~~not exist any Event of Default; (Evi) 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 Borrowers 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) No Credit Party shallnot, directly or indirectly, ~~voluntarily purchase~~(A) amend, modify, alter or change the terms of such unsecured Indebtedness or any agreement, document, or instrument related thereto (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 payments in respect thereto, or forgive or cancel any portion of such unsecured Indebtedness (other than pursuant to the payments thereof), or to reduce the interest rate or any fees in connection therewith, or (B) redeem, ~~defease~~ retire, defease, purchase or ~~prepay~~ otherwise acquire such unsecured Indebtedness (except pursuant to regularly scheduled payments permitted herein), or set aside or otherwise deposit or invest any ~~principal of~~sums for such purpose; and (vii) Borrowers shall furnish to Agent all notices or demands in connection with such unsecured Indebtedness either received by any Borrower or on its behalf promptly after receipt thereof, ~~premium~~or sent by any Borrower or on its behalf concurrently with the sending thereof, ~~if any, interest or other amount payable in respect of any Indebtedness, other than~~ as the case may be; or (f) the Indebtedness set forth on Schedule 7.8; provided that (i) Borrowers shall not, directly or indirectly, (A) amend, modify, alter or change the ~~Obligations~~terms of such Indebtedness or any agreement, document, or instrument related thereto (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 payments in respect thereto, or forgive or cancel any portion of such Indebtedness (other than pursuant to the payments thereof), or to reduce the interest rate or any fees in connection therewith, or (B) redeem, retire, defease, purchase or otherwise acquire such Indebtedness (except pursuant to regularly scheduled payments permitted herein), or set aside or otherwise deposit or invest any sums for such purpose; and (ii) ~~Indebtedness secured by a Permitted Encumbrance if the asset securing~~ Borrowers shall furnish to Agent all notices or demands in connection with such Indebtedness ~~has been sold~~ either received by any Borrower or ~~otherwise disposed of in accordance~~ on its behalf promptly after receipt thereof, or sent by any Borrower or on its behalf concurrently with ~~Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v)~~the sending thereof, as the case may be.

Appears in 1 contract

Sources: Revolving Credit and Security Agreement (Image Entertainment Inc)

Indebtedness. ~~(a) No Credit Party~~ The Borrower shall not, nor shall it permit any Subsidiary or the LS&Co. Trust to, directly or indirectly create, incur, assume or ~~permit~~ suffer 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing theexcept: (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 (Fa) in the case of the Borrower, (i) Indebtedness owed to any ~~intercompany~~ Subsidiary, which Indebtedness, if owed to any Guarantor, (XA) 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 Documents 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 ~~advancing~~ issued in a Capital Markets Transaction provided such ~~funds~~ 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 owed to the Borrower or to any Guarantor by another Guarantor, 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; (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) in the case of the Borrower and Subsidiaries specified in this Section 7.03(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 the aggregate principal amount of 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 Ordinary Course Swap Contracts and 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 ~~Borrowing Availability~~ 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 ~~its separate Borrowing Base of not less than $1,00 after giving effect to such intercompany loan, or (Y) the intercompany Indebtedness shall be a Great Northern Advance,~~ Section 7.03(c)(vi); (ix) Indebtedness ~~owing~~ of the Borrower to ~~Affiliates~~ 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 ~~holders~~ any related servicing fees; (A) Indebtedness of ~~Stock~~ the Borrower and its Subsidiaries arising from the honoring of a check, draft, wire transfer or similar instrument against insufficient funds; provided that such ~~Credit Party~~ Indebtedness is unsecured other than by a Lien permitted pursuant to Section 7.01(r) or is supported by a letter of credit, and (B) Indebtedness of the Borrower and its Subsidiaries in respect of the Borrower's Cash Management Services, PROVIDED that ~~constitutes Subordinated Debt~~the aggregate Indebtedness at any one time in connection with all 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); PROVIDED, ~~is unsecured~~HOWEVER, ~~interest on which is not payable in cash until~~ that the sum, without duplication, of (A) the aggregate principal amount of all such Indebtedness incurred after the ~~Termination Date and as to which no principal is payable until after~~ date hereof PLUS (B) the ~~Termination Date,~~ aggregate Investments permitted by Section 7.02(l) PLUS (xC) the aggregate dispositions permitted by Section 7.05(i) shall not exceed the Available Amount; (xii) 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 to any of its other Subsidiaries (other than LSFCC) incurred in connection with a Disposition permitted under ~~Hedging Agreements~~ Section 7.05(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 ~~Section 6.17~~ Ordinary Course Swap Contracts or in connection with the Borrower's Cash Management Services) of the Borrower and its Subsidiaries (xiother than LSFCC) ~~unsecured Indebtedness not otherwise referred to in this Section 6.3~~ not exceeding $~~1,000,000~~ 150,000,000 in the aggregate ~~principal amount outstanding~~ at any ~~time for all Credit Parties~~time. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

Appears in 1 contract

Sources: Credit Agreement (Levi Strauss & Co)

Indebtedness. ~~(a) No Credit Party shall~~ Such Obligor will not, and will not permit any of its Subsidiaries to, create, incur, assume or 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) No Credit Party shall, whether 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~~ except: (i) the Obligations, ; (ii) Indebtedness ~~secured by a~~ owing under the Non-Convertible Credit Facility Loan Documents and Permitted ~~Encumbrance if~~ Refinancings thereof; provided that the ~~asset securing~~ aggregate outstanding principal amount of all such Indebtedness ~~has been sold or otherwise disposed~~ shall not exceed at any time the sum of ~~in accordance with Sections 6.8(b) or (c)~~ $35,000,000 and the amount of interest thereon compounded and added to the principal thereof; (iii) Indebtedness ~~permitted by Section 6.3(a)(v~~owing under the Convertible Credit Facility 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 $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement); (iv) ~~upon~~ Indebtedness existing on the date hereof and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders; (v) accounts 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 ~~refinancing thereof~~ of its Subsidiaries’ business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAP; (vi) 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; (vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders; (viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time; (ix) 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 $2,300,000 (or the Equivalent Amount in other currencies) at any time; (x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment 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 each case, in connection with transactions permitted under Section ~~6.3(a)(v~~9(c)(v); (xi) 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; (xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts; (xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and (xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securities.

Appears in 1 contract

Sources: Security Agreement (Kadmon Holdings, LLC)

Indebtedness. ~~(a) No Credit Party~~ The Borrower nor any of its Subsidiaries shall directly or indirectly create, incur, assume or ~~permit~~ otherwise become or remain directly or indirectly liable with respect 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing theexcept: (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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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) the Subordinated Debt; (iii) 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) secured or unsecured purchase money Indebtedness (including Capitalized Leases) incurred by the Borrower or any 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 ~~Permitted Encumbrance if~~ scheduled maturity and is not due on demand, (3) such Indebtedness does not exceed the ~~asset~~ lower of the fair market value or the cost of the applicable fixed assets on the date acquired, (4) such Indebtedness does not exceed $5,000,000.00 in the aggregate outstanding at any time, and (5) any Lien securing such Indebtedness ~~has been sold or otherwise disposed of in accordance with Sections 6.8(b~~is permitted under Section 7.3(C) or (~~c) and~~ such Indebtedness being referred to herein as "Permitted Purchase Money Indebtedness"); (~~iii~~vii) Indebtedness in respect of Hedging Obligations permitted by under Section ~~6.3(a)(v~~7.3(O); (viii) ~~upon any refinancing thereof~~ other future unsecured Indebtedness in ~~accordance with Section 6.3(a)(v)~~an aggregate principal amount not to exceed $50,000,000.00; and (ix) Any Permitted Refinancing Indebtedness.

Appears in 1 contract

Sources: Credit Agreement (Kansas City Power & Light Co)

Indebtedness. ~~(a) No Credit Party shall create~~The Borrower will not, and will not permit any Restricted Subsidiary to, incur, create, assume or permit to exist any Indebtedness, ~~except~~ except: (~~without duplication~~a) Indebtedness for borrowed money existing on the date hereof and set forth in Schedule 6.01(a); provided, however, that such Indebtedness shall be repaid concurrently with the incurrence of the Borrowing of the Initial Credit Event hereunder ("Indebtedness to be Paid"); (b) Indebtedness represented by the Notes and by the other Credit Documents; (c) Indebtedness (i) of the Borrower to any wholly owned Restricted Subsidiary or to any Guarantor and (ii) of any Restricted Subsidiary to the Borrower or any wholly owned Restricted Subsidiary; (d) Indebtedness ~~secured~~ represented by ~~purchase money security interests and Capital Leases permitted in~~ the Guarantees of Indebtedness Incurred pursuant to clause (c); (e) Indebtedness relating to (i) Capital Lease Obligations, Sale/Leaseback Transactions and Permitted Purchase Money Liens; provided, that with respect to Capital Lease Obligations, Indebtedness relating to Purchase Money Liens and Sale/Leaseback Transactions, either (A) the Incurrence of such Indebtedness relating to Capital Expenditures, Sale/Leaseback Transactions and Permitted Purchase Money Liens would be permitted pursuant to Section 6.09 in the fiscal year in which it is Incurred, or (dB) the aggregate principal amount of ~~Section 6.7,~~ such Indebtedness does not exceed $5,000,000 at any one time and (ii) Restricted Sale/Leaseback Transactions, if 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 Net Cash Proceeds thereof are ~~permitted to remain unfunded under applicable law, (v) existing Indebtedness described~~ applied in ~~Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing the~~accordance with Section 2.13(b) (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 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 Termination Date and as to which no principal is payable until after the Termination Date, (xf) Indebtedness under Hedging ~~Agreements~~ Obligations; provided, however, that such Hedging Obligations are entered into for bona fide hedging purposes of the Borrower or its Restricted Subsidiaries (as determined in good faith by the Board of Directors or senior management of the Borrower) and correspond in terms of notional amount, duration, currencies and interest rates, as applicable, to Indebtedness of the ~~extent permitted under Section 6.17 and~~ Borrower or its Restricted Subsidiaries Incurred without violation of this Agreement or to business transactions of the Borrower or its Restricted Subsidiaries on customary terms entered into in the ordinary course of business; and (xig) ~~unsecured~~ Indebtedness ~~not otherwise referred to~~ in ~~this Section 6.3 not exceeding $1,000,000 in~~ an aggregate principal amount which, together with all other Indebtedness of the Borrower and the Restricted Subsidiaries outstanding ~~at any time for all Credit Parties.~~ on the date of such Incurrence (~~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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by ~~Section 6.3(a)(v~~clauses (a) ~~upon~~ through (f)) does not exceed $5,000,000 at any ~~refinancing thereof in accordance with Section 6.3(a)(v)~~one time outstanding.

Appears in 1 contract

Sources: Credit Agreement (Century Maintenance Supply Inc)

Indebtedness. ~~(a)~~ No ~~Credit Party shall~~ Borrower will incur, create~~, incur~~, assume or ~~permit~~ suffer to exist any Indebtedness, ~~except~~ except: (~~without duplication~~a) The Notes, the Swing Line Note, and Indebtedness and Obligations under this Agreement and the other Loan Documents; (b) Indebtedness of any Borrower existing at the Closing Date which is reflected in Schedule X hereto and all renewals and extensions thereof; (c) Indebtedness created under leases which, in accordance with generally accepted accounting principles, have been recorded and/or should have been recorded on the books of the applicable Borrower as Capital Leases which, when combined with Indebtedness described in Section 10.1(d), is less than Three Million Dollars ($3,000,000); (d) Indebtedness which is permitted in connection with the purchase of property, provided that the aggregate amount of such Indebtedness shall not exceed $3,000,000; (e) Subordinated Indebtedness as specified in Schedule XI; (f) accounts payable (for the deferred purchase price of Property or services) from time to time incurred in the ordinary course of business and which are not in excess of ninety (90) days past the invoice or billing date; (g) Non-Recourse Real Estate Debt and any Guaranties by the Company of such Indebtedness; (h) Indebtedness pursuant to Third Party Floor Plan Financing; (i) Indebtedness ~~secured~~ of any Subsidiary of the Company in existence (but not incurred or created in connection with such acquisition) on the date on which such Subsidiary is acquired by ~~purchase money security interests~~ the Company and ~~Capital Leases permitted in clause (c)~~ for which Indebtedness neither the Company nor any of its other Subsidiaries has any obligation and with respect to which Indebtedness none of the properties of the Company or ~~(d)~~ any of ~~Section 6.7, (ii) the Loans and the~~ its 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing theSubsidiaries is bound; (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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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, (iij) Indebtedness secured by ~~a Permitted Encumbrance if~~ Liens upon any property hereafter acquired by the ~~asset securing~~ Company or any of its Subsidiary to secure Indebtedness in existence on the date of such acquisition (but not incurred or created in connection with such acquisition), which Indebtedness is assumed by such Person simultaneously with such acquisition, which Liens extend only to such Property so acquired and with respect to which Indebtedness none of the Company or any of its Subsidiaries (other than the acquiring Person) has ~~been sold or otherwise disposed of in accordance with Sections 6.8(b) or~~ any obligation; (~~c) and (iii~~k) Indebtedness ~~permitted~~ owed by the Company or any of its Subsidiaries to the Company or to any other Subsidiary; (l) any Retail Loan Guaranties; provided that the aggregate principal amount of such Retail Loan Guaranties shall not exceed $12,000,000; and (m) Indebtedness arising under any Service Agreement as such term is defined in Section ~~6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v)~~9.14.

Appears in 1 contract

Sources: Revolving Credit Agreement (Group 1 Automotive Inc)

Indebtedness. ~~(a) No Credit Party shall~~ As to the Subsidiaries only, create, incur, assume or ~~permit~~ suffer to exist any Indebtedness, ~~except~~ except: (~~without duplication) (i~~a) 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 unfunded under applicable law, (v) Subsidiaries existing ~~Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect~~ as 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 Date 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) referenced 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the extent permitted under Section 6.17 and (xi) unsecured Indebtedness not otherwise financial statements referred to in ~~this~~ Section ~~6.3 not exceeding $1,000,000~~ 5.05 and renewals, refinancings or extensions thereof in ~~aggregate~~ a principal amount not in excess of that outstanding ~~at any time for all Credit Parties.~~as of the date of such renewal, refinancing or extension; (b) ~~No Credit Party shall~~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 thereon at the time of such refinancing; and (iii) the total amount of all such Indebtedness shall not exceed $100,000,000 at any time outstanding; (c) unsecured intercompany Indebtedness among the Borrower and its Subsidiaries; (d) Indebtedness and obligations owing under any 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 transactions to the defaulting party; (e) Indebtedness and obligations of the Subsidiaries owing under documentary letters of credit for the purchase of goods or other merchandise (but not under standby, direct pay or other letters of credit) generally; (f) Indebtedness of the Subsidiaries incurred in connection with acquisitions (including Indebtedness of Subsidiaries incurred or assumed in connection with joint ventures) provided that (i) such Indebtedness when incurred shall not exceed the purchase price for such acquisition (or the total capital (equity and debt) of a joint venture) and (ii) if the aggregate amount of any such Indebtedness (whether anticipated to be funded at one time or over a series of fundings) exceeds $200,000,000, then (A) the Borrower shall give the Administrative Agent prior written notice of such Indebtedness and (B) prior to the incurrence of any 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 better by S&P and Baa3 or better by ▇▇▇▇▇’▇); (g) other non-acquisition-related Indebtedness of the 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 be required as of each fiscal quarter end of the Borrower pursuant to Section 6.02(b)); and (h) to the extent constituting Indebtedness, obligations of the Subsidiaries related to any arrangement, directly or indirectly, ~~voluntarily purchase~~with any Person whereby such Subsidiary shall sell or transfer any property used or useful in its business, ~~redeem~~whether now owned or hereafter acquired, ~~defease~~ and thereafter rent or ~~prepay any principal of, premium, if any, interest~~ lease such property or other ~~amount payable in respect of any Indebtedness, other than (i)~~ property that it intends to use for substantially the ~~Obligations, (ii) Indebtedness secured by a Permitted Encumbrance if~~ same purpose or purposes as the ~~asset securing such Indebtedness has been~~ property being sold or ~~otherwise disposed~~ transferred, so long as the aggregate amount of ~~in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon~~ such obligations does not exceed $100,000,000 at any ~~refinancing thereof in accordance with Section 6.3(a)(v).~~time outstanding. CHAR2\2846261v9

Appears in 1 contract

Sources: Credit Agreement (Sonoco Products Co)

Indebtedness. No Mortgagor shall incur, create or assume any ------------ indebtedness or incur any liabilities whether or not secured by any Mortgaged Property without the consent of the Mortgagee (aother than the Notes and the other obligations, indebtedness and liabilities secured by this Mortgage); provided, however, that if no (x) ~~No Credit Party~~ monetary Default or (y) Event of Default shall ~~create~~have occurred and be continuing, each Mortgagor may, without the consent of the Mortgagee, incur, create or assume ~~or permit to exist any Indebtedness, except (without duplication)~~ the following indebtedness: (i) ~~Indebtedness secured~~ unsecured Trade Payables incurred in the ordinary course of such Mortgagor's business, customarily paid by ~~purchase money security interests~~ such Mortgagor within sixty (60) days outstanding, or such longer period as such Mortgagor is, in good faith and ~~Capital Leases~~ in accordance with customary and prudent practices, contesting the payment of same, and capitalized personal property leasing expenses, or in connection with the ownership, management, operation, leasing, cleaning, maintenance, repair, replacement, financing, improvement, alteration or restoration thereof incurred in the ordinary course of operating such Mortgagor's business (provided, however, that notwithstanding the foregoing, in no event shall any Mortgagor be permitted ~~in clause (c) or (d) of Section 6.7,~~ under this provision to enter into a note for borrowed money); (ii) amounts, not secured by any Mortgaged Property, payable or reimbursable to any Tenant of any portion of the ~~Loans and~~ applicable Mortgaged Property on account of work performed at the ~~other Obligations~~Mortgaged Property by such Tenant or for costs incurred by such Tenant in connection with its occupancy of space in the Premises of such Mortgaged Property, in each case incurred in the ordinary course of such Mortgagor's business (provided, however, that notwithstanding the foregoing, in no event shall any Mortgagor be permitted under this provision to enter into a note for borrowed money); (iii) ~~deferred taxes~~indebtedness not secured by any of the Mortgaged Properties, relating solely to financing of capital improvements, tenant improvements, Equipment or leasing costs relating to any Mortgaged Property or Mortgaged Properties, and costs associated with such indebtedness, in an amount of up to 5% of the ~~extent permitted under applicable law~~aggregate Allocated Amounts of all Mortgaged Properties (initially, $28,000,000) (~~iv) unfunded pension fund and other employee benefit plan obligations and liabilities to~~ it being understood that the ~~extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness~~ maximum amount of indebtedness described in ~~Disclosure Schedule~~ this clause (~~6.3~~iii) ~~and refinancings thereof or 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 may 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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~~ when any Notes are outstanding under the Indenture shall be 5% of the aggregate of the original Allocated Amounts of all ~~Credit Parties. (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~~ Mortgaged Properties); the ~~asset securing such Indebtedness has been sold or otherwise disposed~~ Mortgagor will initially be deemed to have incurred $2,500,000 of unsecured debt in accordance with ~~Sections 6.8(b~~the foregoing clause (which $2,500,000 will be reduced proportionately as the then-Potential Mortgagor Obligations are undertaken and/or the Mortgagor's responsibility in respect thereof is satisfied or waived or the amounts payable in connection therewith are secured by one or a combination of the items described in Section 14(d)(i)-(iii)); and (iv) ~~or (c~~indebtedness in the form of Additional Notes as permitted under Section 9.1(6) ~~and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v)~~of the Indenture.

Appears in 1 contract

Sources: Mortgage, Deed of Trust, Security Agreement (General Growth Properties Inc)

Indebtedness. ~~(a) No Credit Party~~ Neither the Borrower nor any of its Subsidiaries shall directly or indirectly create, incur, assume or ~~permit~~ otherwise become or remain directly or indirectly liable with respect 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing theexcept: (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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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) Permitted Existing Indebtedness and Permitted Refinancing Indebtedness; (iii) Indebtedness in respect of obligations secured by a Customary Permitted ~~Encumbrance if~~ 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 ~~asset securing such Indebtedness has been sold~~ Borrower or ~~otherwise disposed of in accordance with Sections 6.8(b~~any wholly-owned Subsidiary or (b) from the Borrower to any wholly-owned Domestic Incorporated Subsidiary or (c) 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 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 (~~iii~~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 ~~permitted~~ with respect to surety, appeal and performance bonds obtained by ~~Section 6.3(a)(v~~the Borrower or any of its Subsidiaries in the ordinary course of business; (ix) ~~upon~~ Indebtedness incurred by the Borrower to the seller in any ~~refinancing thereof~~ Permitted Acquisition as part of the consideration therefor, provided that such Indebtedness is unsecured and, if in ~~accordance with Section 6.3(a)(v)~~excess of $15,000,000 in the aggregate, is subordinated to the Obligations, on terms reasonably acceptable to the Agent; (x) Indebtedness incurred by the Borrower pursuant to the Permitted Private Placement; and (xi) additional unsecured Indebtedness in an aggregate amount at any time outstanding not exceeding $25,000,000.

Appears in 1 contract

Sources: Credit Agreement (Schawk Inc)

Indebtedness. ~~(a) No Credit Party shall~~ The Borrower will not, nor will it permit any of its Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, ~~except~~ except: (~~without duplication~~a) the Secured Obligations; (b) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; (c) Indebtedness of the Borrower to any Guarantor and of any Guarantor to the Borrower or any other Guarantor, provided that (i) all such Indebtedness ~~secured by purchase money security interests~~ shall be unsecured and ~~Capital Leases permitted~~ subordinated to the Secured Obligations in ~~clause (c) or (d) of Section 6.7,~~ a manner and on terms and conditions reasonably satisfactory to the Administrative Agent and (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 unfunded under applicable law, (v) existing all such Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 is evidenced by ~~such Borrower to such other Borrowers which Intercompany Notes shall be~~ promissory notes in form and substance reasonably satisfactory to the Administrative Agent and ~~shall be pledged and delivered~~ such promissory notes are subject to a first priority security interest in favor of the Administrative 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~~ benefit of the Secured Parties on ~~its books~~ terms and ~~records in a manner~~ conditions reasonably satisfactory to the Administrative Agent; (d) Guarantees by the Borrower or any Guarantor of Indebtedness of the Loan Parties permitted under this Section 6.01; provided that Guarantees permitted under this clause (Cd) ~~the obligations of each Borrower under any such Intercompany Notes~~ shall be subordinated to the Secured Obligations on the same terms as the Indebtedness so Guaranteed is subordinated to the Secured Obligations; (e) Indebtedness of the Borrower and its Subsidiaries incurred to finance the acquisition, construction or improvement of any fixed or capital assets (whether or not constituting purchase money Indebtedness), including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such ~~Borrower hereunder in a manner reasonably satisfactory to Agent; (D) at the time any such intercompany loan~~ construction 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; improvement and (~~F) in the case of any intercompany Indebtedness, (X~~ii) the ~~Borrower advancing such funds~~ aggregate principal amount of Indebtedness permitted by this clause (e) shall ~~have Borrowing Availability under its separate Borrowing Base of~~ not ~~less than $1,00 after giving effect to such intercompany loan, or~~ exceed the Threshold Amount at any time outstanding; (~~Y) the intercompany Indebtedness shall be a Great Northern Advance, (ix~~f) Indebtedness ~~owing to Affiliates and holders~~ of ~~Stock~~ the Borrower or any of such Credit Party that constitutes Subordinated Debt, is unsecured, interest on which is not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination Date, its Subsidiaries under (xi) ~~Indebtedness under Hedging~~ Swap Agreements to the extent permitted under Section ~~6.17~~ 6.06, and (xiii) Advance Payment Contracts to the extent permitted under Section 6.11; (g) Indebtedness owed to any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business; (h) Indebtedness of the Borrower or any of its Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the ordinary course of business; (i) Other unsecured Indebtedness ~~not otherwise referred to in this Section 6.3 not exceeding $1,000,000 in~~ of the Loan Parties; provided that the aggregate principal amount ~~outstanding~~ of Indebtedness permitted by this clause (i) shall not exceed the Threshold Amount at any time ~~for all Credit Parties.~~outstanding; and (bj) ~~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~~ Unsecured Guarantees by the Borrower of any ~~Indebtedness~~Indebtedness for borrowed money of Natural Resource Partners; provided that, ~~other than (i) the Obligations~~Coal Operating Company has provided, ~~(ii) Indebtedness secured by~~ or substantially contemporaneously with Borrower providing such Guarantee will provide, a ~~Permitted Encumbrance if the asset securing~~ Guarantee of such Indebtedness ~~has been sold or otherwise disposed~~ on terms and conditions substantially identical to Borrower’s Guarantee of ~~in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v)~~such Indebtedness.

Appears in 1 contract

Sources: Credit Agreement (Natural Resource Partners Lp)

Indebtedness. The Borrower will not, and will not cause or permit any Subsidiary to incur any Indebtedness and will use commercially reasonable efforts not to permit any Qualified Lessee (other than Qualified Lessees (1) with an Investment Grade Credit Rating or (2) whose obligations under the applicable Leases have been Guaranteed by an entity with an Investment Grade Credit Rating) or Subsidiaries of Specified Qualified Lessees to incur Indebtedness for borrowed money, in each case except the following Indebtedness, which may be incurred subject to the requirements of the last paragraph of this section: (a) No Indebtedness evidenced by the Credit ~~Party shall create~~Documents, ~~incur, assume or permit to exist any Indebtedness, except~~ the 2010 Financing Documents and the 2009 Financing Documents; (~~without duplication~~b) Indebtedness of the Borrower (i) that is not related to, and does not support, Non- Recourse Debt of a Project Finance Subsidiary and (ii) if incurred, would not result in a breach of Section 7.11; provided that, if the Indebtedness is proposed to be secured by ~~purchase money security interests~~ any of the Collateral, then at least five Business Days (or such shorter period reasonably agreed by the Administrative Agent) prior to the incurrence of such Indebtedness, the Borrower shall (x) notify the Administrative Agent of its intent to incur such Indebtedness, which notice shall set forth in reasonable detail (A) the amount and ~~Capital Leases permitted~~ 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 or all of the Collateral) and (y) deliver to the Collateral Agent and the Administrative Agent an executed joinder agreement substantially in ~~clause~~ the form of Exhibit A attached to the Collateral Agency Agreement pursuant to which all the proposed holders of such Indebtedness have become party to the Collateral Agency Agreement; (ci) Non-Recourse Debt incurred by a Project Finance Subsidiary of the Borrower (including Non-Recourse Debt incurred by such Project Finance Subsidiary prior to being acquired by the Borrower or (da Subsidiary) ~~of Section 6.7~~to fund a New Project, (ii) any Indebtedness in the ~~Loans and the other Obligations~~form of a pledge of Capital Stock in a Project Finance Subsidiary as security for Non-Recourse Debt of such Project Finance Subsidiary, (iii) ~~deferred taxes~~Indebtedness in the form of Guaranties by the Borrower 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, and (iv) Indebtedness of a Subsidiary (other than a Project Finance Subsidiary of the Borrower) owed to the Borrower; (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 (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 each case on a 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 G, to the extent ~~permitted~~ allowed under ~~applicable law~~the Leases to which such Qualified Lessee is a party as a lessee or tenant thereunder; provided, that for purposes of this clause (ivd), all Consolidated Qualified Lessees will be treated as one Qualified Lessee; (e) ~~unfunded pension fund and~~ Indebtedness of the Borrower to any of its Subsidiaries (other ~~employee benefit plan obligations and liabilities~~ than a Project Finance Subsidiary), which by its terms is expressly subordinated to the ~~extent they are permitted~~ Obligations, and Indebtedness of any Subsidiary (other than a Project Finance Subsidiary) to ~~remain unfunded under applicable law,~~ the Borrower or any other Subsidiary of the Borrower (vother than a Project Finance Subsidiary) ~~existing Indebtedness described~~ not to exceed $5,000,000 at any one time outstanding and in ~~Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not~~ each case to have ~~the effect~~ a maturity date of ~~increasing the~~less than one year; (Af) Qualified Lessees may also incur Indebtedness associated with Qualified Lessee Affiliate Loans; and (g) Indebtedness of Subsidiaries of Specified Qualified Lessees incurred in an aggregate principal amount for 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 Specified Qualified Lessee of up to the ~~applicable Pledge Agreement or Security Agreement as additional collateral security for~~ product of (x) such Specified Qualified Lessee’s Consolidated Net Plant (derived from its most recently prepared consolidated balance sheet, prepared in accordance with GAAP but adjusted to reverse the ~~Obligations; (B) each Borrower shall record all intercompany transactions on its books and records~~ effects of failed sale-leaseback accounting in a manner reasonably ~~satisfactory to Agent;~~ determined by such Specified Qualified Lessee in good faith) multiplied by (Cy) the ~~obligations~~ lesser of ~~each Borrower under any such Intercompany Notes shall be subordinated to~~ (A) the ~~Obligations~~ 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 must be Non-Recourse Debt to such Specified Qualified Lessee. Indebtedness of the Borrower ~~hereunder in a manner reasonably satisfactory to Agent; (D) at the time~~ or any ~~such intercompany loan or advance is made by any Borrower to any other Borrower and after giving effect thereto, each such Borrower shall~~ of its Subsidiaries may be ~~Solvent; (E)~~ incurred under this Section 8.6 only if 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 loanis, or ~~(Y) the intercompany Indebtedness shall be~~ as a ~~Great Northern Advance, (ix) Indebtedness owing to Affiliates and holders of Stock~~ result of such ~~Credit Party that constitutes Subordinated Debt~~incurrence would be, is unsecured, interest on which is not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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 Partiesexisting. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

Appears in 1 contract

Sources: Credit Agreement (InfraREIT, Inc.)

Indebtedness. (a) ~~No Credit Party~~ The Borrower shall not, nor shall the Borrower permit any Restricted Subsidiary to, directly or indirectly: (i) create, incur, ~~assume~~ issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness), or (ii) issue any shares of Disqualified Stock or permit any Restricted Subsidiary to ~~exist~~ 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, ~~except~~ Disqualified Stock or Preferred Stock incurred or issued pursuant to following clauses (~~without duplication) (i) Indebtedness secured by purchase money security interests and Capital Leases permitted in clause (c) or (d) of Section 6.7~~A), (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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3B) and ~~refinancings thereof or amendments or modifications thereto that do not have the effect of increasing the~~(C), “Permitted Ratio Debt”): (A) with respect to Indebtedness secured by the Collateral 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 Indebtedness is incurred (without netting any cash received from the incurrence of such Indebtedness proposed to be incurred) would be no greater than 4.25 to 1.00; (B) with respect to Indebtedness secured by the Collateral 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 Indebtedness is incurred (without netting any cash received from the incurrence of such Indebtedness proposed to be incurred) would be no greater than 5.25 to 1.00; or (C) with respect to Indebtedness that is not secured by the Collateral, including all Indebtedness of Restricted Subsidiaries that are not Guarantors, or any Disqualified Stock or Preferred Stock, 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 (without netting any cash received from the incurrence of such Indebtedness proposed to be incurred) would be no greater than 5.50 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 (I) Restricted 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 Restricted Subsidiaries incurred or issued pursuant to this Section 7.02(a), together with any principal amounts incurred or issued by such Restricted Subsidiaries under Section 7.02(b)(14)(a) 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) $500.0 million and (ii) 65.0% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the most recently ended Test Period (calculated on a pro forma basis), (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 ~~executed and delivered~~ a Weighted Average Life to ~~each other Borrower,~~ Maturity not shorter than the remaining Weighted Average Life to Maturity of the Closing Date Term Loans on the ~~Closing Date~~date of incurrence of such Permitted Ratio Debt, ~~a demand note~~ (~~collectively,~~ III) if the ~~“Intercompany Notes”) to evidence~~ terms of any such ~~intercompany Indebtedness owing at any time by such Borrower to such other Borrowers which Intercompany Notes shall be~~ Permitted Ratio Debt in the form ~~and substance reasonably satisfactory to Agent and shall be pledged and delivered to Agent pursuant~~ of revolving loans or commitments contain a Previously Absent Financial Maintenance Covenant that is in effect prior to the applicable ~~Pledge Agreement or Security Agreement as additional collateral security~~ Latest Maturity Date of the Revolving Facility, such Previously Absent Financial Maintenance Covenant shall be included for the ~~Obligations;~~ benefit of the Revolving Facility and (BIV) ~~each~~ if any such Indebtedness in clause (A) of the definition of Permitted Ratio Debt consists of syndicated Dollar-denominated or Euro-denominated term loans secured by a Lien on the Collateral ranking pari passu with the First Lien Obligations under this Agreement, then the Borrower shall ~~record all intercompany transactions on its books and records in a manner reasonably satisfactory to Agent;~~ comply with the “most favored nation” pricing provisions of Section 2.14(5)(c) (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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the extent ~~permitted under~~ then applicable) as if such Indebtedness were Incremental Term Loans incurred pursuant to 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~~2.14. (b) No 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) the incurrence by the Borrower and any Guarantor of Indebtedness pursuant to the Second Lien Credit ~~Party shall~~Documents or consisting of “Permitted Incremental Equivalent Debt” (or equivalent term) (as defined in the Second Lien Credit Agreement) or any Refinancing Indebtedness in respect thereof (including any “Credit Agreement Refinancing Indebtedness” (or equivalent term) (as defined in the Second Lien Credit Agreement)) in an aggregate outstanding principal amount not to exceed $600.0 million (plus (x)(i) the amount of any “Incremental Loans” and “Permitted Incremental Equivalent Debt” (or equivalent terms) (each, ~~directly~~ as defined in the Second Lien Credit Agreement (as in effect on the date hereof)) permitted under Sections 2.14(4)(c) and 7.02 (or ~~indirectly~~equivalent provisions) of the Second Lien Credit Agreement (as in effect on the date hereof) and (ii) any Refinancing Indebtedness in respect thereof and (y) the amount of accrued interest, ~~voluntarily~~ fees and premiums (including tender premium) and penalties (if any) with respect to any such Indebtedness under this clause (b)(2) refinanced, and fees, expenses, original issue discount and upfront fees incurred in connection with any such refinancing); (3) the incurrence of Indebtedness by the Borrower 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 $15.0 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 Restricted Subsidiary and Preferred Stock issued by any Restricted Subsidiary, to finance the purchase, ~~redeem~~lease, ~~defease~~ expansion, construction, installation, replacement, repair or ~~prepay any principal of~~improvement of property (real or personal), ~~premium, if any, interest~~ equipment or other ~~amount payable~~ 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) $230.0 million and (II) 30.0% 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 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 ~~Indebtedness~~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 the Borrower and owing to a Restricted Subsidiary or the 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; 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; 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, 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 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 up to 200.0% of the net cash proceeds received by the Borrower since the Closing Date from the issue or sale of Equity Interests of the Borrower or contributions to the capital of the Borrower, 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 the Borrower 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); 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 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)(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 ~~Obligations~~greater of (I) $200.0 million and (II) 25.0% 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) ~~Indebtedness secured by a Permitted Encumbrance if~~ in the ~~asset securing~~ event of any extension, replacement, refinancing, renewal or defeasance of any such ~~Indebtedness has been sold~~ Indebtedness, Disqualified Stock or ~~otherwise disposed~~ 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, underwriting, arrangement and similar fees) incurred in ~~accordance~~ connection with ~~Sections 6.8(b)~~ the issuance of such new Indebtedness, Disqualified Stock or ~~(c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).~~Preferred Stock or the extension, replacement, refunding, refinancing, renewal or defeasance of such Indebtedness, Disqu

Appears in 1 contract

Sources: First Lien Credit Agreement (McAfee Corp.)

Indebtedness. ~~(a) No Credit Party shall~~ Holdings will not, and will not permit any of ------------- its Subsidiaries to, contract, create, incur, assume or ~~permit~~ suffer to exist any Indebtedness, ~~except~~ except: (a) Indebtedness incurred pursuant to this Agreement and the other Credit Documents; (b) Retained Existing Indebtedness outstanding on the Initial Borrowing Date and listed on Schedule IV (as reduced by any repayments thereof before, on or after the Initial Borrowing Date), without ~~duplication~~giving effect to any subsequent extension, renewal or refinancing thereof; (c) Indebtedness under (i) Interest Rate Protection Agreements entered into to protect any Borrower against fluctuations in interest rates in respect of Indebtedness otherwise permitted to be incurred by such Borrower under this Agreement or (ii) Other Hedging Agreements so long as management of such Person has determined that the entering into of any such Other Hedging Agreement is a bona fide hedging activity (and is not for speculative purposes) and is in the ordinary course of business and consistent with its past practices; (i) Indebtedness ~~secured~~ 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 (A) such Indebtedness was not incurred in connection with, or in anticipation or contemplation of, such Permitted Acquisition and (B) such Indebtedness does not constitute debt for borrowed money (except to the extent such Indebtedness cannot be repaid in accordance with its terms at the time of its assumption pursuant to such Permitted Acquisition (without the payment of a penalty or premium) and the aggregate principal amount of all such Indebtedness for borrowed money permitted pursuant to this parenthetical does not exceed $30,000,000), it being understood and agreed that Capitalized Lease Obligations and purchase money ~~security interests and Capital Leases permitted in~~ Indebtedness shall not constitute debt for borrowed money for purposes of this clause (cB) ~~or (d) of Section 6.7,~~ and (ii) Capitalized Lease Obligations and Indebtedness of the US Borrower and any of its Subsidiaries representing purchase money Indebtedness secured by Liens permitted pursuant to Section 7.03(1); provided that the sum of (1) the aggregate principal amount of all Permitted Acquired Debt at any time outstanding plus (2) the aggregate amount of Capitalized Lease Obligations incurred on and after the Initial Borrowing Date and outstanding at any time (including Indebtedness evidenced by Capitalized Lease Obligations arising from Permitted Sale-Leaseback Transactions) plus (3) the aggregate principal amount of all such purchase money Indebtedness incurred on and after the Initial Borrowing Date and outstanding at any time, shall not exceed $40,000,000; (e) Indebtedness constituting Intercompany 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing theby Section 7.05(f); (Af) ~~each Borrower shall have executed and delivered to each other Borrower~~Permitted Subordinated Refinancing Indebtedness, 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 so long 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~~ is in existence at the time of any incurrence thereof and ~~be continuing~~ immediately after giving effect thereto; provided that no Subsidiary of Holdings shall Guaranty any Permitted Subordinated Refinancing Indebtedness unless such Guaranty is subordinated to the Guaranty 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; (g) unsecured Indebtedness of the US Borrower and 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 shall be a Great Northern Advance, (ix) Indebtedness owing to Affiliates and holders of Stock of such other US Credit Party that ~~constitutes~~ is a Subsidiary Guarantor incurred under the Senior Subordinated ~~Debt,~~ Notes and the other Senior Subordinated Note Documents issued for cash in an aggregate principal amount not to exceed $250,000,000; provided that no Subsidiary of Holdings shall Guaranty any Indebtedness or other Obligations under the Senior Subordinated Notes unless such Guaranty is ~~unsecured, interest~~ subordinated to the Guaranty pursuant to the US Collateral and Guaranty Agreement on terms no less favorable to the Lenders than the subordination provisions of the Senior Subordinated Notes; (h) on and after the date on which is any shares of Initial Preferred Stock are exchanged for Discount Notes in accordance with the terms thereof and hereof, unsecured Indebtedness of Holdings under such Discount Notes in an aggregate principal amount not ~~payable~~ to exceed the aggregate liquidation preference of the shares of Initial Preferred Stock exchanged for such Discount Notes plus the aggregate principal amount of any additional Discount Notes issued in ~~cash until~~ respect of regularly scheduled interest payments thereon in accordance with the terms thereof and hereof and less the amount of any repayments of principal thereof after the ~~Termination Date and as to which no principal is payable until after the Termination~~ Initial Borrowing Date, ; (~~x) Indebtedness under Hedging Agreements to the extent permitted under Section 6.17 and (xi~~i) unsecured Indebtedness ~~not otherwise referred to~~ of Holdings incurred under the Seller Note in ~~this Section 6.3 not exceeding $1,000,000 in~~ an aggregate principal amount ~~outstanding at any time for all Credit Parties. (b) No Credit Party shall, directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or other~~ not to exceed $11,340,000 plus the aggregate amount ~~payable in respect~~ of any ~~Indebtedness, other than (i)~~ accrued and unpaid interest on the ~~Obligations, (ii) Indebtedness secured by a Permitted Encumbrance if the asset securing such Indebtedness has been sold or otherwise disposed of~~ Seller Note that is capitalized in accordance with ~~Sections 6.8(b) or~~ the terms thereof and hereof and less the amount of any repayments of principal thereof after the issuance thereof; (~~c) and (iii~~j) Indebtedness ~~permitted by Section 6.3(a)(v) upon~~ of the US Borrower or any ~~refinancing thereof~~ of its Subsidiaries that may be deemed to exist in connection with agreements providing for indemnification, purchase price adjustments, earn-outs and similar obligations in connection with acquisitions or sales of assets and/or businesses effected in accordance with ~~Section 6.3(a)(v~~the requirements of this Agreement (so long as any such obligations are those of the Person making the respective acquisition or sale and are not guaranteed by any other Person).; 132

Appears in 1 contract

Sources: Credit Agreement (GSL Corp)

Indebtedness. (a) ~~No Credit Party~~ The Borrower shall not, nor shall the Borrower permit any Subsidiary to, directly or indirectly, create, incur, ~~assume~~ issue, assume, guarantee or ~~permit~~ otherwise become directly or indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to ~~exist~~ any Indebtedness (including Acquired Indebtedness); provided that the Borrower may incur Indebtedness (including Acquired Indebtedness and the issuance of shares of Disqualified Stock), ~~except~~ and any Subsidiary may incur Indebtedness (~~without duplication~~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 (iC), “Permitted Ratio Debt”): (A) with respect to Indebtedness secured by ~~purchase money security interests and Capital Leases~~ ▇▇▇▇▇ 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 ~~in clause (c~~under this Agreement) or (dy) 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 ~~Section 6.7~~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), (ii2), (3), (4) and (5) below, collectively, the “Specified Debt Requirements”): (1) the ~~Loans~~ 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 ~~other Obligations~~Borrower) shall, ~~(iii) deferred taxes~~at the option of the Borrower, to the extent ~~permitted under~~ not consistent with the Closing Date Term Loans existing on the date that the applicable ~~law~~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 except, in the case of this clause (~~iv) unfunded pension fund~~ a), with respect to covenants and other ~~employee benefit plan obligations and liabilities~~ 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 ~~they~~ 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 ~~permitted to remain unfunded under applicable law~~provided, ~~(v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have~~ for the ~~effect~~ benefit of ~~increasing the (A) each Borrower shall have executed and delivered to each other Borrower, on~~ the Closing ~~Date~~Date Term Lenders (and, ~~a demand note (collectively~~for the avoidance of doubt, ~~the “Intercompany Notes”) to evidence any~~ such ~~intercompany Indebtedness owing at any time by such Borrower to such other Borrowers which Intercompany Notes~~ term shall be ~~in form and substance~~ deemed reasonably satisfactory to ~~Agent~~ the Administrative Agent); (2) such Indebtedness shall (i) not mature earlier than the Original Term Loan Maturity Date and ~~shall be pledged and delivered~~ (ii) have a Weighted Average Life to ~~Agent pursuant~~ Maturity not shorter than the remaining Weighted Average Life to Maturity of the ~~applicable Pledge Agreement or Security Agreement as additional collateral security for~~ Closing Date Term Loans outstanding on 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~~ date of ~~each Borrower under any such Intercompany Notes shall be subordinated to the Obligations~~ incurrence of such ~~Borrower hereunder in~~ Indebtedness; (3) no Subsidiary that does not constitute 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~~ Loan Party may incur Permitted Ratio Debt if, on a pro forma basis after giving effect thereto, ~~each such Borrower shall be Solvent;~~ 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; (E4) ~~no Default or Event~~ any mandatory prepayments of ~~Default would occur and be continuing after giving effect to~~ (a) any ~~such proposed intercompany loan; and (F)~~ Permitted Ratio Debt in the ~~case~~ form of ~~any intercompany Indebtedness~~term loans or notes, ~~(X)~~ as applicable, that is secured by Liens on the ~~Borrower advancing such funds shall have Borrowing Availability under its separate Borrowing Base of not less than $1,00 after giving effect~~ Collateral that rank junior to ~~such intercompany loan,~~ the Liens on the Collateral that secure the Obligations or (Y) the intercompany Indebtedness 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements~~ 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 (provided that, for the avoidance of doubt, mandatory prepayments may be made in connection with any refinancing of Permitted Ratio Debt permitted ~~under Section 6.17~~ hereunder) and (xib) ~~unsecured Indebtedness~~ 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 ~~otherwise referred~~ 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 ~~Section 6.3~~ Agreement as if such Permitted Ratio Debt was an Incremental Term Loan (for the avoidance of doubt, whether or not ~~exceeding $1,000,000~~ such Permitted Ratio Debt is in ~~aggregate principal amount outstanding at~~ the form of loans or notes (including whether or not such loans or notes are broadly distributed or widely syndicated)) and (b) the ROFO Provision shall apply to any ~~time~~ Permitted Ratio Debt as if such Permitted Ratio Debt was an Incremental Term Loan (for ~~all Credit Parties~~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) ~~No Credit~~ the foregoing clause (a) shall not apply to the following: (1) Indebtedness of the Borrower and of its Subsidiaries under the Loan Documents (including Incremental Loans and Extended Loans); (2) [reserved]; (3) the incurrence of Indebtedness by the Borrower and any Subsidiary in existence on the Effective Date or the Closing Date listed on Schedule 7.02 (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); (4) Indebtedness (including Capitalized Lease Obligations, Purchase Money Obligations and Existing Equipment Financings) incurred or issued by the Borrower or any other Loan Party ~~shall~~and Preferred Stock issued by any Subsidiary, ~~directly or indirectly, voluntarily~~ to finance the purchase, ~~redeem~~lease, ~~defease~~ expansion, construction, installation, replacement, repair or ~~prepay any principal of~~improvement of property (real or personal), ~~premium, if any, interest~~ equipment or other ~~amount payable~~ 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 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 ~~Indebtedness~~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 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 clause (7); (8) 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 ~~than~~ 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 (i) ~~the Obligations,~~ $30,000,000 and (ii) 3.0% of Total Assets (or after the Adjusted EBITDA Grower Trigger Date, 30.0% of Adjusted EBITDA) as of (or for) the most recently ended Test Period (calculated on a pro forma basis) of the Borrower and its Subsidiaries at any one time outstanding (with such amount reduced by any amounts then outstanding and incurred pursuant to Section 2.14(4)(c)(I)) plus, without duplication, in the 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 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 or the extension, replacement, refunding, refinancing, renewal or defeasance of such Indebtedness; provided that (i) such Indebtedness incurred by a Loan Party under this clause (12) may only be secured if secured by a ~~Permitted Encumbrance if~~ Lien on the ~~asset~~ Collateral that is junior to the Liens securing the Obligations or may be unsecured and (ii) no Subsidiary that does not constitute a Loan Party may incur Indebtedness under this clause (12) in excess of the Non-Loan Party Cap; (13) the incurrence by the Borrower or any Subsidiary of Refinancing Indebtedness that serves to Refinance any Indebtedness permitted under clause (3) above, this clause (13) and clause (14), or any successive Refinancing Indebtedness with respect to any of the foregoing; provided that such Indebtedness ~~has been sold or otherwise disposed~~ shall continue to constitute a usage of ~~in accordance with Sections 6.8(b~~the applicable clause; (14) or (~~c) and (iii~~a) Indebtedness ~~permitted~~ assumed by ~~Section 6.3(a)(v) upon~~ the Borrower or any ~~refinancing thereof~~ Subsidiary in ~~accordance with Section 6.3(a)(v).~~conne

Appears in 1 contract

Sources: Term Loan Credit Agreement (Alvotech)

Indebtedness. Create, incur, assume, suffer to exist, guarantee, or otherwise become or remain, directly or indirectly, liable with respect to any Indebtedness, except: (a) ~~No Credit Party shall create~~Indebtedness evidenced by this Agreement and the other Loan Documents, ~~incur~~together with Indebtedness owed to Underlying Issuers with respect to Underlying Letters of Credit, (b) Indebtedness set forth on Schedule 4.19 and any Refinancing Indebtedness in respect of such Indebtedness, (c) Permitted Purchase Money Indebtedness and any 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, ~~assume or permit~~ subject to ~~exist any~~ the terms and provisions of the Intercompany Subordination Agreement, (g) Subordinated Indebtedness~~, except~~ , (~~without duplication~~h) Indebtedness in respect of obligations under non-speculative Hedge Agreements entered into in the ordinary course of business in accordance with this Agreement and solely for hedging purposes, (i) unsecured Indebtedness ~~secured by purchase money security interests~~ 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 ~~Capital Leases permitted in clause (c)~~ is continuing or ~~(d) of Section 6.7~~would result therefrom, (ii) ~~the Loans and the other Obligations~~such unsecured Indebtedness is not incurred for working capital purposes, (iii) ~~deferred taxes,~~ such unsecured Indebtedness does not mature prior to the ~~extent permitted under applicable law~~date that is 12 months after the Maturity Date, and (iv) ~~unfunded pension fund and other employee benefit plan obligations and liabilities~~ such Indebtedness is subordinated in right of payment to the ~~extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3)~~ Obligations on terms and refinancings thereof or 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 conditions reasonably satisfactory to Agent; and (Cj) ~~the~~ unsecured Indebtedness of Loan Parties in respect of any contingent earn-out obligations incurred in connection with a Permitted Acquisition that are subordinated in right of ~~each Borrower under any such Intercompany Notes shall be subordinated~~ payment to the Obligations ~~of such Borrower hereunder in a manner~~ on terms and conditions 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the extent permitted under Section 6.17 and (xik) unsecured Indebtedness ~~not otherwise referred to~~ of any Loan Party other than the Indebtedness set forth in ~~this Section 6.3 not exceeding $1,000,000~~ clauses (a) through (j) above in an aggregate principal amount ~~outstanding~~ not to exceed $25,000,000 at any time ~~for all Credit Parties~~outstanding. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

Appears in 1 contract

Sources: Credit Agreement (Take Two Interactive Software Inc)

Indebtedness. ~~(a) No Credit Party~~ Tenant shall not at any time create, incur, assume or guarantee, or permit to ~~exist~~ exist, or become or remain liable directly or indirectly upon, any ~~Indebtedness~~Indebtedness except the following: (1) Indebtedness payable to Landlord; (2) unsecured Indebtedness consisting of accounts payable, ~~except~~ accruals and similar items incurred in the ordinary course of business in accordance with reasonable and customary trade practices, that are neither owed to a Guarantor or a Subsidiary of a Guarantor nor constitute Indebtedness for money borrowed or a Guarantee thereof; (3) Indebtedness for taxes, assessments, governmental charges or levies to the extent that payment thereof shall not at the time be required to be made in accordance with the provisions of Article 8 --------- hereof or of the other applicable provisions of the Transaction Documents; (4) Indebtedness in respect of judgments or awards which have been in force for less than the applicable appeal period, so long as execution is not levied or in respect of which Tenant shall at the time in good faith be prosecuting an appeal or proceedings for review, and in respect of which execution thereof shall have been stayed pending such appeal or review; provided that in each instance the -------- applicable requirements of each Transaction Document are complied with; (5) Indebtedness for taxes, assessments, governmental charges or levies, and claims for labor, materials and supplies, to the extent that payment thereof shall not at the time be required to be made in accordance with the provisions of Article 8 hereof or of the other applicable provisions of the Transaction Documents; (6) unsecured Indebtedness (including without ~~duplication~~limitation, accrued and unpaid management fees and Indebtedness for Borrowed Money) of Tenant (i) owed to a Guarantor or a Subsidiary of a Guarantor (provided that the payment of such Indebtedness ~~secured~~ shall be subject to the terms of a subordination agreement in form and substance satisfactory to Landlord among Tenant as debtor, such Guarantor or such Subsidiary as subordinate creditor and Landlord as senior creditor); and (7) Indebtedness of Tenant, (i) as guarantor of or co-borrower with Paragon or any Subsidiary thereof, in respect of an $890 million credit facility provided to Paragon by ~~purchase money security interests~~ The Chase Manhattan Bank, as agent bank (and ~~Capital Leases permitted in clause (c)~~ successor or ~~(d) of Section 6.7~~replacement indebtedness), (ii) ~~the Loans~~ as guarantor of senior subordinated notes and ~~the other Obligations~~senior subordinated discount notes of Paragon (and/or its successors and subsidiaries) yielding proceeds of approximately $500 million (and successor or replacement indebtedness), (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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) as guarantor of a residual guaranty by Paragon in respect of a master lease arrangement providing for the acquisition, development and construction of skilled nursing and assisted living facilities for a total amount of not to exceed $100,000,000 (and successor or replacement indebtedness); provided -------- that (A) the enforcement of such Indebtedness against Tenant shall at all times be subject to the terms of an intercreditor agreement in substantially the form (to the extent applicable) of the Intercreditor Agreement dated as of February 12, 1997 among Tenant, GCIHCC, GranCare, First Union National Bank of North Carolina, as agent, and Landlord, (B) the enforcement of security interests or liens securing such Indebtedness are permitted by paragraph (g) of Section ~~6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).~~24.13, and ------------- -------------

Appears in 1 contract

Sources: Restructure and Asset Exchange Agreement (Paragon Health Network Inc)

Indebtedness. ~~(a) No Credit Party shall~~ The Parent Company will not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume or ~~permit~~ suffer to exist any Indebtedness, ~~except~~ except: (~~without duplication~~a) (i) Indebtedness created under the Loan Documents (including with respect to Specified Refinancing Term Loans), (ii) Indebtedness of the Credit Parties evidenced by Refinancing Notes and any Permitted Refinancing Indebtedness in respect thereof and (iii) Indebtedness of the Credit Parties evidenced by Refinancing Junior Loans and any Permitted Refinancing Indebtedness in respect thereof; (b) Indebtedness outstanding on the Closing Date and listed on Schedule 7.04 and any Permitted Refinancing thereof; (c) Indebtedness under Swap Agreements entered into not for speculative purposes but (i) for the purpose of protecting the Parent Company and/or its Restricted Subsidiaries against fluctuations in interest rates in respect of Indebtedness otherwise permitted under this Agreement, (ii) for the purpose of fixing or hedging currency exchange rate risk with respect to any currency exchanges; or (iii) for the purpose of fixing or hedging commodity price risk with respect to any commodity purchases or sales; (d) (i) Capitalized Lease Obligations and Indebtedness of the Parent Company and its Restricted Subsidiaries representing purchase money Indebtedness secured by ~~purchase money security interests~~ Liens permitted pursuant to Section 7.03(k); provided that (x) no Event of Default shall have occurred and ~~Capital Leases permitted in clause~~ be continuing at the time such Capitalized Lease Obligations or Indebtedness is incurred and (~~c) or (d) of Section 6.7, (ii~~y) the ~~Loans~~ aggregate principal amount of all such Indebtedness outstanding at any time shall not exceed the greater of (x) $50,000,000 and ~~the other Obligations,~~ (~~iii~~y) ~~deferred taxes,~~ an amount equal to ~~the extent permitted under applicable law,~~ 10.0% of Consolidated EBITDA (iv) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect as of ~~increasing~~ the (Ai) ~~each Borrower shall have executed~~ Indebtedness of a Restricted Subsidiary acquired pursuant to an Acquisition permitted hereunder (or Indebtedness assumed at the time of such Acquisition of an asset securing such Indebtedness); provided that (x) such Indebtedness was not incurred in connection with, or in anticipation or contemplation of, such Acquisition and ~~delivered to each other Borrower, on~~ (y) the ~~Closing Date, a demand note (collectively, the “Intercompany Notes”) to evidence any~~ aggregate principal amount of all such ~~intercompany~~ Indebtedness ~~owing~~ outstanding at any time ~~by such Borrower to such other Borrowers which Intercompany Notes~~ shall ~~be in form~~ not exceed the greater of (A) $175,000,000 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~~ an amount equal to ~~Agent;~~ 35.0% of Consolidated EBITDA (Cas of the most recent fiscal quarter end for which financial statements were required to be delivered pursuant to Section 6.01(a) ~~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~~or 6.01(b) 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 shall be~~ Acquisition on a ~~Great Northern Advance~~Pro Forma Basis), (ixii) Indebtedness ~~owing~~ of a Restricted Subsidiary acquired pursuant to ~~Affiliates and holders of Stock~~ an Acquisition permitted hereunder (or Indebtedness assumed at the time of such ~~Credit Party~~ Acquisition of an asset securing such Indebtedness); provided that ~~constitutes Subordinated Debt, is unsecured, interest on which is not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination Date,~~ (x) such Indebtedness ~~under Hedging Agreements to~~ was not incurred in connection with, or in anticipation or contemplation of, such Acquisition, (y) such Indebtedness is of the ~~extent permitted under~~ type described in Section ~~6.17~~ 7.04(d) and (xiz) the aggregate principal amount of all such Indebtedness outstanding at any time shall not exceed the greater of (A) $50,000,000 and (B) an amount equal to 10.0% of Consolidated EBITDA (as of the most recent fiscal quarter end for which financial statements were required to be delivered pursuant to Section 6.01(a) or 6.01(b)) (Indebtedness described in the foregoing clauses (i) and (ii), collectively, “Permitted Acquired Debt”) and (iii) any Permitted Refinancing Indebtedness in respect thereof; (g) unsecured Indebtedness ~~not otherwise referred to in this Section 6.3 not exceeding $1,000,000 in~~ of Restricted Subsidiaries that are Non-Credit Parties or Indebtedness of Restricted Subsidiaries that are Non-Credit Parties which is secured solely by the assets of any such Restricted Subsidiaries; provided that the aggregate principal amount of all such Indebtedness outstanding at any time for all such Restricted Subsidiaries shall not exceed the greater of (x) $50,000,000 and (y) an amount equal to 10.0% of Consolidated EBITDA (as of the most recent fiscal quarter end for which financial statements were required to be delivered pursuant to Section 6.01(a) or 6.01(b)); (h) Guarantees by the Parent Company or any Restricted Subsidiary of Indebtedness or other obligations of the Parent Company or any Restricted Subsidiary permitted to be incurred under this Section 7.04; provided that the aggregate amount of Indebtedness and other payment obligations (other than in respect of any overdrafts and related liabilities arising in the ordinary course of business from treasury, depository and cash management services or in connection with any automated clearing house transfer of funds) of Non-Credit ~~Parties. (b) No~~ Parties that is Guaranteed by any Credit Party shall, ~~directly or indirectly~~in each case, ~~voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest~~ be subject to Section 7.05(f); (i) 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 daylight overdrafts) drawn against insufficient funds in the ordinary course of business so long as such Indebtedness is extinguished within three Business Days of the incurrence thereof; (i) Indebtedness of the joint ventures in an aggregate principal amount ~~payable~~ not to exceed the greater of (x) $50,000,000 or (y) an amount equal to 10.0% of Consolidated EBITDA (as of the most recent fiscal quarter end for which financial statements were required to be delivered pursuant to Section 6.01(a) or 6.01(b)) at any time outstanding and (ii) Guarantees of the Parent Company consisting of a guaranty of the Parent Company’s “ratable portion” of such Indebtedness (determined using the Parent Company’s percentage of its indirect equity ownership interest in such joint ventures); (q) Indebtedness in respect of (i) one or more series of notes issued by any of the Credit Parties that are either (x) senior or subordinated and unsecured or (y) secured by Liens on the Collateral ranking junior to or pari passu with the Liens securing the Obligations, in each case issued in a public offering, Rule 144A or other private placement in lieu of the foregoing (and any Registered Equivalent Notes issued in exchange therefor), and (ii) loans made to any of the Credit 126 CHAR1\1999704v12 Parties that are either (x) senior or subordinated and unsecured or (y) secured by Liens on Collateral ranking junior to the Liens securing the Obligations (any such Indebtedness, “Incremental Equivalent Debt”); provided that (A) the aggregate initial principal amount of all Incremental Equivalent Debt shall not exceed the amount permitted to be incurred under the Incremental Amount, provided that (x) the Parent Company shall have delivered a certificate to the Administrative Agent demonstrating that the Parent Company is in compliance with the financial covenants contained in Sections 7.08 and 7.09 as of the most recent fiscal quarter end for which financial statements were required to be delivered pursuant to Section 6.01(a) or 6.01(b), determined on a Pro Forma Basis after giving effect to the incurrence of any such Indebtedness (assuming for such calculation that such Incremental Equivalent Debt is fully drawn) and (y) in the case of Incremental Equivalent Debt that is secured, such Incremental Equivalent Debt shall be subject to a Market Intercreditor Agreement reasonably satisfactory to the Administrative Agent and the Parent Company, (B) the incurrence of such Indebtedness shall be subject to clauses (v), the first proviso to clause (vi) and, solely with respect to Incremental Equivalent Debt in the form of Term Loans, ranked pari passu in right of payment and security with the existing Term Loans, clause (xi) of Section 2.18(b), as if such Incremental Equivalent Debt constituted Incremental Term Loans; provided that clauses (v), (vi) and (xi) of Section 2.18(b) shall not apply to any bridge facility on customary terms if the long-term indebtedness that such bridge facility is to be converted into satisfies the maturity, prepayment and amortization restrictions in such clauses, (C) if any Incremental Term Loan, Refinancing Notes or Refinancing Junior Loan shall have “most-favored- nation” protection for the benefit of the lenders providing such facility, any Incremental Equivalent Debt that constitutes term loans secured on a pari passu basis with the Obligations may be subject to such “most-favored-nation” protection, (D) no Event of Default shall have occurred and be continuation at the time such Incremental Equivalent Debt is incurred, (E) such Incremental Equivalent Debt shall not be secured by a Lien on any asset that does not constitute Collateral, (F) there shall be no obligors in respect of any ~~Indebtedness~~Incremental Equivalent Debt that are not Credit Parties and (G) the terms and conditions including such financial maintenance covenants (if any) applicable to such Incremental Equivalent Debt shall not be, when taken as a whole, materially more favorable (as determined in good faith by the board of directors of the Parent Company), to the holders of such Indebtedness than those applicable under this Agreement (except for covenants or other ~~than~~ provisions (i) applicable only to periods after the ~~Obligations,~~ Latest Maturity Date or (ii) that are also for the benefit of all other Lenders in respect of Loans and Commitments outstanding at the time such Incremental Equivalent Debt is incurred), and any Permitted Refinancing Indebtedness ~~secured by a Permitted Encumbrance if~~ in respect thereof; (r) to the ~~asset securing~~ extent constituting Indebtedness, contingent obligations arising under indemnity agreements to title insurance companies to cause such ~~Indebtedness has been sold~~ title insurers to issue title insurance policies in the ordinary course of business with respect to the real property of the Parent Company or any Restricted Subsidiary; (s) to the extent constituting Indebtedness, customary indemnification and purchase price adjustments or similar obligations (including earn-outs) incurred or assumed in connection with Investments and Dispositions otherwise ~~disposed~~ permitted hereunder; (t) to the extent constituting Indebtedness, deferred compensation or similar arrangements payable to future, present or former directors, officers, employees, members of ~~in accordance with Sections 6.8(b)~~ management or consultants of the Parent Company and the Restricted Subsidiaries; (~~c) and (iii~~u) Indebtedness ~~permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).~~consisting of the financing of insurance premiums;

Appears in 1 contract

Sources: Credit Agreement (SharkNinja, Inc.)

Indebtedness. ~~(a) No~~ None of the Credit ~~Party shall~~ Parties will, nor will they cause or permit any of the Restricted Subsidiaries to, create, incur, assume or permit to exist any ~~Indebtedness, except~~ Indebtedness except: (~~without duplication) (i~~a) Indebtedness ~~secured by purchase money security interests and Capital Leases permitted in clause (c) or (d) of Section 6.7, (ii) the Loans~~ under this Agreement and the Notes; (b) Indebtedness of the Borrower and its Restricted Subsidiaries (other ~~Obligations, (iii~~than Existing Affiliate Indebtedness) ~~deferred taxes,~~ assumed upon the contribution to the ~~extent permitted under applicable law~~Borrower of the Contributed Systems and set forth on Schedule 6.01(b), ~~(iv) unfunded pension fund and other employee benefit plan obligations and liabilities~~ excluding however, for periods after the Closing Date, any Indebtedness that is identified on said Schedule as Indebtedness that is to the extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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, be repaid on the Closing Date, and any refinancing of such Indebtedness that does not result in an increase in the principal amount thereof; (c) Indebtedness of any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary; (d) Existing Affiliate Indebtedness, so long as (i) the aggregate principal amount thereof does not exceed $500,000,000, (ii) such Indebtedness is not secured and bears interest at a ~~demand note~~ rate per annum no higher than the rates applicable to the Advances hereunder and (~~collectively~~iii) such Indebtedness has an amortization schedule (on a percentage basis) no shorter than the annual amortization provided herein for the Term Facility, ~~the “Intercompany Notes”) to evidence any~~ provided that such ~~intercompany~~ Indebtedness ~~owing at any time by such Borrower to such other Borrowers which Intercompany Notes~~ shall be paid in ~~form and substance reasonably satisfactory to Agent~~ full from the proceeds, and shall not be ~~pledged and delivered~~ outstanding after the making, of the Term Advances hereunder; (e) deferred Management Fees which have been subordinated to ~~Agent~~ the obligations of the Credit Party hereunder pursuant to the ~~applicable Pledge Agreement or Security Agreement as additional collateral security for the Obligations;~~ Management Fee Subordination Agreement; (Bf) ~~each Borrower shall record all intercompany transactions~~ Capital Lease Obligations and Indebtedness secured by Liens permitted under Section 6.02(q) in an aggregate amount up to but not exceeding $55,000,000 at any one time outstanding; (g) senior unsecured Indebtedness on ~~its books and records in a manner reasonably~~ terms satisfactory to ~~Agent~~the Required Lenders, and subordinated Indebtedness on terms (including terms of subordination, covenants, events of default and mandatory redemptions) satisfactory to the Arranging Agents, provided that (i) such Indebtedness (whether senior unsecured or subordinated) will not have any scheduled amortization payment occurring prior to the scheduled repayment of principal and interest of the Term Facility or the Revolving Credit Facility, and will have a maturity date later than the Maturity Date and (ii) 100% of the net cash proceeds of the sale, issuance or incurrence of such Indebtedness (whether senior unsecured or subordinated) shall be used to prepay the Advances and any Existing Affiliate Indebtedness ratably in accordance with the respective then-outstanding principal amounts thereof (it being understood that such prepayment of Advances shall be effected in the manner specified in Section 2.05(c) and that, concurrently with any prepayment of Revolving Credit Advances pursuant to Section 2.05(c), the Revolving Credit Commitments shall be automatically reduced in an amount equal to the amount of such prepayment applied to the Revolving Credit Advances); and (Ch) Indebtedness of the ~~obligations~~ Borrower (but not of ~~each Borrower under~~ any of its Restricted Subsidiaries) incurred after the Closing Date to one or more of its Affiliates in an aggregate principal amount up to but not exceeding $125,000,000 at any one time outstanding and satisfying the following conditions: (i) such ~~Intercompany Notes~~ Indebtedness shall be unsecured and shall be subordinated to the ~~Obligations~~ obligations of ~~such~~ the Borrower hereunder upon the terms set forth in ~~a manner reasonably satisfactory to Agent~~Schedule 6.01(h); and (Dii) ~~at the time~~ such Indebtedness shall not provide for any ~~such intercompany loan~~ cross default or ~~advance is made by any Borrower~~ cross acceleration 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)~~ and all covenants agreed to by the Borrower ~~advancing~~ in respect of 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements satisfactory to the 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 PartiesArranging Agents. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

Appears in 1 contract

Sources: Credit Agreement (Adelphia Communications Corp)

Appears in 1 contract

Sources: Credit Agreement (Sonic Automotive Inc)

Indebtedness. ~~(a) No Credit Party shall~~ As to the Subsidiaries only, create, incur, assume or ~~permit~~ suffer to exist any Indebtedness, ~~except~~ except: (~~without duplication) (i~~a) 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 unfunded under applicable law, (v) Subsidiaries existing ~~Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect~~ as 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 Date 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) referenced 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the extent permitted under Section 6.17 and (xi) unsecured Indebtedness not otherwise financial statements referred to in ~~this~~ Section ~~6.3 not exceeding $1,000,000~~ 5.05 and renewals, refinancings or extensions thereof in ~~aggregate~~ a principal amount not in excess of that outstanding ~~at any time for all Credit Parties.~~as of the date of such renewal, refinancing or extension; (b) ~~No Credit Party shall, directly~~ Indebtedness of the Subsidiaries incurred after the Closing Date consisting of capital leases or ~~indirectly, voluntarily purchase, redeem, defease~~ Indebtedness incurred to provide all or ~~prepay any principal of, premium, if any, interest~~ a portion of the purchase price or ~~other amount payable in respect~~ cost of ~~any Indebtedness, other than~~ construction of an asset provided that (i) such Indebtedness when incurred shall not exceed the ~~Obligations,~~ purchase price or cost of construction of such asset; (ii) ~~Indebtedness secured by a Permitted Encumbrance if the asset securing~~ no such Indebtedness ~~has been sold or otherwise disposed~~ shall be refinanced for a principal amount in excess CHAR1\1534066v6 of ~~in accordance with Sections 6.8(b) or (c)~~ the principal balance outstanding thereon at the time of such refinancing; and (iii) the total amount of all such Indebtedness ~~permitted~~ shall not exceed $50,000,000 at any time outstanding; (c) unsecured intercompany Indebtedness among the Borrower and its Subsidiaries; (d) Indebtedness and obligations owing under any 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 transactions to the defaulting party; (e) Indebtedness and obligations of the Subsidiaries owing under documentary letters of credit for the purchase of goods or other merchandise (but not under standby, direct pay or other letters of credit) generally; (f) Indebtedness of the Subsidiaries incurred in connection with acquisitions (including Indebtedness of Subsidiaries incurred or assumed in connection with joint ventures) provided that (i) such Indebtedness when incurred shall not exceed the purchase price for such acquisition (or the total capital (equity and debt) of a joint venture) and (ii) if the aggregate amount of any such Indebtedness (whether anticipated to be funded at one time or over a series of fundings) exceeds $100,000,000, then (A) the Borrower shall give the Administrative Agent prior written notice of such Indebtedness and (B) prior to the incurrence of any 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 better by S&P and Baa3 or better by ▇▇▇▇▇’▇); and (g) other non-acquisition-related Indebtedness of the 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 be required as of each fiscal quarter end of the Borrower pursuant to Section ~~6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v~~6.02(b)).

Appears in 1 contract

Sources: Credit Agreement (Sonoco Products Co)

Indebtedness. ~~(a) No Credit Party~~ The Company shall not create, issue, assume, guarantee, or otherwise in any manner become directly or indirectly liable for or with respect to or otherwise incur (collectively, "_____ incur") any Indebtedness, ~~assume or~~ and the Company shall not permit any of its Subsidiaries to ~~exist~~ incur any Indebtedness, except that: (~~without duplication) (i) Indebtedness secured by purchase money security interests and Capital Leases permitted in clause (c) or (d) of Section 6.7, (ii~~a) the ~~Loans and the other Obligations, (iii) deferred taxes,~~ Company may incur Indebtedness to the ~~extent permitted under applicable law~~Banks or the Letter of Credit Agent hereunder, ~~(iv) unfunded pension fund and other employee benefit plan obligations and liabilities to~~ in accordance with the extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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.terms hereof; (b) ~~No Credit Party shall~~the Company may incur Indebtedness to any Person other than one of its Subsidiaries (excluding liabilities and obligations prohibited under Section 8.25 hereof), ~~directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premium~~provided that the Company is in Financial Compliance both immediately before and immediately after such incurrence and further provided, if ~~any~~such Indebtedness is for Hedging Obligations, that such Hedging Obligations are Product Hedging Obligations or Rate Hedging Obligations incurred for hedging purposes (and not speculation) in order to protect the Company or a Restricted Subsidiary against fluctuations in the interest rates applicable to their existing or reasonably anticipated floating rate indebtedness or against fluctuations in the prices applicable to their existing or reasonably anticipated requirements (for the reasonable operations of the Company's two lines of business) of crude oil, other ~~amount payable~~ feedstocks, retail petroleum products, or additives thereto or components thereof or their existing or reasonably anticipated requirements for energy supplies. (c) the Company and the Restricted Subsidiaries may incur Indebtedness in respect of ~~any Indebtedness~~commercial letters of credit, ~~other than~~ provided that the Company is in Financial Compliance both immediately before and immediately after such incurrence; (id) the ~~Obligations, (ii)~~ Company and the Restricted Subsidiaries may incur Indebtedness secured by ~~a Permitted Encumbrance if~~ Purchase Money Liens, provided that the ~~asset securing~~ Company is in Financial Compliance both immediately before and immediately after such incurrence; (e) the Company and the Restricted Subsidiaries may incur Indebtedness ~~has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness~~ under Guarantees permitted by Section ~~6.3(a)(v~~8.11 hereof; (f) ~~upon~~ any ~~refinancing thereof in accordance with Section 6.3(a)(v)~~Restricted Subsidiary may incur Indebtedness to the Company or to any other Restricted Subsidiary, and the Company may incur Indebtedness to any Restricted Subsidiary so long as the aggregate amount of such Indebtedness of the Company to the Restricted Subsidiaries does not exceed $15,000,000 at any one time outstanding; and (g) any Unrestricted Subsidiary may incur Nonrecourse Indebtedness to Persons other than the Company and the Restricted Subsidiaries.

Appears in 1 contract

Sources: Credit Agreement (Crown Central Petroleum Corp /Md/)

Indebtedness. ~~(a) No Credit Party~~ Neither the Borrower nor any of its Subsidiaries shall directly or indirectly create, incur, assume or ~~permit~~ otherwise become or remain directly or indirectly liable with respect to ~~exist~~ any Indebtedness, ~~except (without duplication)~~ except: (i) ~~Indebtedness secured by purchase money security interests and Capital Leases permitted in clause (c) or (d) of Section 6.7,~~ the Obligations; (ii) Permitted Existing Indebtedness and Permitted Refinancing Indebtedness; (iii) unsecured subordinated indebtedness incurred by the ~~Loans~~ Borrower (including in connection with any Permitted Acquisition) that (x) does not have a stated maturity before the Termination Date in effect as of the date such indebtedness is incurred, (y) has terms that are no more restrictive than the terms of this Agreement and the other ~~Obligations~~Loan Documents, and (~~iii~~z) ~~deferred taxes,~~ is subordinated to the ~~extent permitted under applicable law~~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) ~~unfunded pension fund and other employee benefit plan~~ Indebtedness in respect of obligations ~~and liabilities to the extent they are permitted to remain unfunded under applicable law,~~ secured by Customary Permitted Liens; (v) ~~existing~~ Indebtedness ~~described~~ constituting Contingent Obligations in ~~Disclosure Schedule~~ respect of Indebtedness otherwise permitted hereunder; (~~6.3~~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 of its Subsidiaries after the Closing Date (including, as a result of the assumption of any such Indebtedness in connection with a Permitted Acquisition) 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 in the aggregate at any time an amount equal to the sum of (a) $7,500,000 PLUS (b) an amount equal to 1.5% of Consolidated Revenues of the Borrower and its Subsidiaries for each fiscal year, commencing with the fiscal year ending December 31, 1998, (5) any Lien securing such Indebtedness is permitted under SECTION 7.3(C) and ~~refinancings~~ (6) such Indebtedness is incurred in compliance with CLAUSE (XIV) below (such Indebtedness being referred to herein as "PERMITTED PURCHASE MONEY INDEBTEDNESS"); (x) Indebtedness with respect to surety, appeal 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, industrial development bond or other similar financings assumed in connection with (but not incurred in connection with or in anticipation of) a Permitted Acquisition; (xiii) other Indebtedness (other than working capital financing) existing at a New Subsidiary at the time of the Permitted Acquisition thereof (but not incurred in connection or ~~amendments~~ in anticipation of such Permitted Acquisition) the outstanding principal balance of which does not exceed fifteen percent (15%) of the book value of the assets acquired as a result of such Permitted Acquisition and such Indebtedness is incurred in compliance with the provisions of CLAUSE (XIV) below; and (xiv) other Indebtedness in addition to that referred to elsewhere in this SECTION 7.3(A) incurred by the Borrower or ~~modifications thereto~~ any of its Subsidiaries; PROVIDED that ~~do not have the effect of increasing the~~ (A) ~~each Borrower~~ the aggregate amount of such other Indebtedness incurred by the Borrower's Subsidiaries 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~~ not 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 Obligationsexceed $1,000,000; (B) ~~each Borrower~~ the aggregate amount of such other Indebtedness together with the aggregate amount of Permitted Purchase Money Indebtedness and Indebtedness incurred under CLAUSE (XIII) above shall ~~record all intercompany transactions on its books and records in a manner reasonably satisfactory to Agent~~not at any time exceed $25,000,000; (C) the ~~obligations of each Borrower under any such Intercompany Notes shall be subordinated to the Obligations~~ aggregate amount of such ~~Borrower hereunder in~~ other Indebtedness which is secured by a ~~manner reasonably satisfactory to Agent~~Lien permitted under the terms of this Agreement together with the aggregate amount of secured Permitted Purchase Money Indebtedness and secured Indebtedness incurred under CLAUSE (XIII) above shall not at any time exceed $10,000,000; and (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~~ Unmatured Default ~~would occur~~ shall have occurred and be continuing ~~after giving effect to any such proposed intercompany loan; and (F) in~~ at 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 shall be a Great Northern Advance, (ix) Indebtedness owing to Affiliates and holders of Stock date of such Credit Party that constitutes Subordinated Debt, is unsecured, interest on which is not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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 Partiesincurrence or would result therefrom. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

Appears in 1 contract

Sources: Credit Agreement (Transportation Components Inc)

Indebtedness. ~~(a)~~ No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or ~~permit~~ guaranty, or otherwise become or remain directly or indirectly liable with respect to ~~exist~~ any ~~Indebtedness~~Indebtedness or issue any Preferred Stock, ~~except~~ except: (~~without duplication~~a) the Obligations, including Indebtedness under any Hedge Agreement with any Lender Counterparty; (b) Indebtedness of any Wholly-Owned Included Domestic Subsidiary of Borrower to Borrower or to any other Wholly-Owned Included Domestic Subsidiary of Borrower, or of Borrower to any Wholly-Owned Included Domestic Subsidiary of Borrower, provided, (i) all such Indebtedness ~~secured~~ shall be evidenced by ~~purchase money security interests~~ promissory notes and ~~Capital Leases permitted~~ all such notes shall be subject to a First Priority Lien pursuant to the Pledge and Security Agreement, (ii all such Indebtedness owed by Borrower to any of its Included Subsidiaries shall be unsecured and subordinated in ~~clause~~ right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, are reasonably satisfactory to Administrative Agent, and (ii all such Indebtedness shall include provisions as to the waiver of any subrogation rights until after the Obligations have been paid in full; (c) Borrower and its Wholly-Owned Included Domestic Subsidiaries may become and remain liable with respect to Contingent Obligations in respect of any obligations of Borrower or any of its Wholly-Owned Included Domestic Subsidiaries permitted under this Agreement; provided, any such Contingent Obligations shall (i) be unsecured, and (ii) include provisions as to the waiver of any subrogation rights until after the Obligations have been paid in full; (d) Contingent Obligations of ~~Section~~ Borrower or any of its Subsidiaries arising from customary agreements providing for indemnification, adjustment of purchase price or similar obligations of any such Person in connection with the Merger Agreement, the Capstar Documentation and Permitted Acquisitions or Asset Sales permitted pursuant to Sections 6.6 and 6.7; (e) Contingent Obligations under guaranties in the ordinary course of business of the obligations of suppliers, landlords, customers, franchisees and licensees of Borrower and its Subsidiaries in an aggregate amount at any time not to exceed $1,000,000; (f) Indebtedness of Holdings or Borrower in respect of any Permitted Sponsor Subordinated Debt; (g) Indebtedness of Holdings and Muzak Holdings Finance in respect of the Holdings Notes, provided, (i) the Net High Yield Proceeds received in connection therewith shall not exceed $40,000,000 and shall be contributed to Borrower as Equity Capital and (ii) such Indebtedness shall (a) be unsecured and on terms and conditions acceptable to Requisite Lenders, (b) mature no earlier than the tenth anniversary of the date of issuance thereof, (c) require by its terms, that all interest on such debt be "paid-in-kind" through ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) contain other terms and conditions which shall be satisfactory to Requisite Lenders, and (e) be issued on or before the first anniversary of the Closing Date; (h) Indebtedness of Borrower and Muzak Finance in respect of the Senior Subordinated Notes in an aggregate principal amount of not less than $115,000,000, provided, such Indebtedness shall (i) be unsecured and subordinated to the Obligations of Borrower hereunder on terms and conditions acceptable to Requisite Lenders, (ii) ~~the Loans and the other Obligations~~mature no earlier than December 31, 2007, (iii) ~~deferred taxes~~contain other terms and conditions which shall be satisfactory to Requisite Lenders, ~~to the extent permitted under applicable law,~~ and (iv) ~~unfunded pension fund and other employee benefit plan obligations and liabilities to~~ be issued on or before the extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect first anniversary of ~~increasing the (A) each Borrower shall have executed and delivered to each other Borrower, on~~ the Closing Date; (i) Contingent Obligations of Holdings and Borrower's Subsidiaries in respect of the Senior Subordinated Notes, ~~a demand note~~ provided that such Contingent Obligations shall (~~collectively, the “Intercompany Notes”~~i) ~~to evidence any such intercompany Indebtedness owing at any time by such Borrower to such other Borrowers which Intercompany Notes shall~~ be ~~in form~~ unsecured 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~~ Subsidiaries hereunder ~~in a manner reasonably~~ on terms and conditions acceptable to Requisite Lenders and (ii) contain other terms and conditions which shall be satisfactory to ~~Agent~~Requisite Lenders; (j) Indebtedness of Holdings consisting of the obligation to repurchase membership interests of former officers and directors of Holdings pursuant to the Securities Repurchase Agreements, provided that the aggregate amount of such Indebtedness incurred by Holdings measured on a cumulative basis from the Closing Date shall not exceed $2,000,000; (k) Deferred Management Fees, subject to Section 6.4; (l) additional unsecured Indebtedness of Borrower and its Subsidiaries in an aggregate outstanding principal amount not to exceed $5,000,000 at any time; (m) each of Borrower and Holdings may become and remain liable with respect to any Preferred Stock of Borrower and Holdings which by its terms does not require any payment of Cash dividends or interest and does not mature or provide for any repurchase or redemption thereof, in whole or in part, contingent or otherwise, on or prior to December 31, 2007; (n) Indebtedness described in Schedule 6.1, and until the Closing Date, the Existing Debt; and (Do) additional secured Indebtedness of Borrower and its Subsidiaries, including, without limitation, with respect to Capital Leases, in an aggregate outstanding principal amount not to exceed $2,500,000 at ~~the time~~ any time; provided, however, (i) neither Holdings nor any of its Subsidiaries shall incur any Contingent Obligations in respect of any obligations of any Subsidiary other than an Included Subsidiary and (ii) any Subsidiary that is not an Included Subsidiary may only become and remain liable with respect to Indebtedness if such ~~intercompany loan or advance~~ Indebtedness is ~~made by any Borrower~~ without recourse to any other ~~Borrower~~ Credit Party or their respective assets, 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~~Electro, ~~(X) the Borrower advancing such funds shall have Borrowing Availability under its separate Borrowing Base of~~ does not less than $1,00 after giving effect to such intercompany loan, or (Y) the intercompany Indebtedness 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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 exceed an aggregate outstanding principal amount ~~outstanding at any time for all Credit Parties~~of $2,400,000. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

Appears in 1 contract

Sources: Credit and Guaranty Agreement (Muzak Finance Corp)

Indebtedness. ~~(a) No Credit Party shall~~ The Borrower will not, and will not permit any of ------------ its Subsidiaries to, contract, create, incur, assume or ~~permit~~ suffer to exist any Indebtedness, except: (a) Indebtedness incurred pursuant to this Agreement and the other Credit Documents; (b) Existing Indebtedness outstanding on the Initial Borrowing Date and listed on Schedule IV (as reduced by any repayments thereof after the Initial Borrowing Date), without giving effect to any subsequent extension, renewal or refinancing thereof; (c) Indebtedness under Interest Rate Protection Agreements entered into to protect the Borrower against fluctuations in interest rates in respect of Indebtedness otherwise permitted under this Agreement; (d) (x) Indebtedness of a Subsidiary acquired pursuant to a Permitted Acquisition (or Indebtedness assumed by the Borrower or any Wholly-Owned Domestic Subsidiary 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 (i) such Indebtedness was not incurred in connection with, or in anticipation or contemplation of, such Permitted Acquisition and (ii) such Indebtedness does not constitute debt for borrowed money (except to the extent such Indebtedness cannot be repaid in accordance with its terms at the time of its assumption pursuant to such Permitted Acquisition and the aggregate principal amount of all such Indebtedness for borrowed money permitted pursuant to this parenthetical does not exceed $15,000,000), 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 (ii) and (y) Capitalized Lease Obligations and Indebtedness of the Borrower and its Subsidiaries representing purchase money Indebtedness secured by Liens permitted pursuant to Section 9.03(l), provided, that the -------- sum of (I) the aggregate principal amount of all Permitted Acquired Debt at any time outstanding plus (II) the aggregate amount of Capitalized Lease ---- Obligations incurred on and after the Initial Borrowing Date and outstanding at any time plus (III) the aggregate principal amount of all ---- such purchase money Indebtedness incurred on and after the Initial Borrowing and outstanding at any time, shall not exceed $25,000,000; (e) Indebtedness constituting Intercompany Loans to the extent permitted by Section 9.05(f); (f) unsecured Indebtedness of the Borrower and the Subsidiary Guarantors incurred under the Senior Subordinated Notes and the other Senior Subordinated Notes Documents in an aggregate principal amount not to exceed $200,000,000 less the amount of any repayments of principal thereof after the Effective Date; (g) unsecured Indebtedness of the Borrower and the Subsidiary Guarantors incurred under the Convertible Subordinated Notes and the other Convertible Subordinated Note Documents in an aggregate principal amount not to exceed $100,000,000 plus the aggregate principal amount of all ---- Convertible Subordinated Notes issued to pay accrued and unpaid interest on then outstanding Convertible Subordinated Notes in accordance with the terms thereof less (without duplication) the amount of any repayments of ---- principal thereof and the amount of all reductions to the outstanding principal amount of the Convertible Subordinated Notes as a result of conversions thereof into Borrower Common Stock, in each case occurring after the Effective Date; (h) Indebtedness of the Borrower or any of its Subsidiaries which may be deemed to exist in connection with agreements providing for indemnification, purchase price adjustments 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 obligations are those of the Person making the respective acquisition or sale, and, except as permitted by Section 9.04(i)(z), are not guaranteed by any other Person); (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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 Contingent 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, (Xx) the Borrower ~~advancing~~ or any of its Subsidiaries as a guarantor of the lessee under any lease pursuant to which the Borrower or any of its Wholly-Owned Subsidiaries is the lessee so long as such ~~funds shall have Borrowing Availability under its separate Borrowing Base of not less than $1,00 after giving effect to such intercompany loan~~lease is otherwise permitted hereunder, or (Yy) the ~~intercompany Indebtedness shall be~~ Borrower or any of its Subsidiaries as a ~~Great Northern Advance, (ix) Indebtedness owing to Affiliates and holders~~ guarantor of ~~Stock of such Credit Party that constitutes Subordinated Debt, is unsecured, interest on which is not payable in cash until after the Termination Date and as~~ any Capitalized Lease Obligation to which ~~no principal~~ a Joint Venture is ~~payable until after~~ a party or any contract entered into by such Joint Venture in the ~~Termination Date, (x) Indebtedness under Hedging Agreements to~~ ordinary course of business; provided that the ~~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~~ maximum -------- liability of the Borrower or any ~~time for all Credit Parties. (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~~ of its Subsidiaries in respect of any ~~Indebtedness, other than~~ obligations as described pursuant to preceding clause (iy) is permitted as an Investment on such date pursuant to the ~~Obligations, (ii) Indebtedness secured by a Permitted Encumbrance if the asset securing such Indebtedness has been sold or otherwise disposed~~ requirements of ~~in accordance with Sections 6.8(b) or (c~~Section 9.05(l) and (~~iii~~z) the Borrower as a guarantor of Indebtedness ~~permitted by Section 6.3(a)(v) upon~~ of any ~~refinancing thereof~~ of its Subsidiaries which may be deemed to exist pursuant to acquisition agreements entered into in ~~accordance~~ connection with ~~Section 6.3(a)(v~~Permitted Acquisitions (including any obligation to pay the purchase price therefor and any indemnification, purchase price adjustment and similar obligations).;

Appears in 1 contract

Sources: Credit Agreement (Building One Services Corp)

Indebtedness. ~~(a) No Credit Party shall~~ The Obligors will not, nor will they permit any of their respective Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, ~~except~~ except: (~~without duplication~~a) Indebtedness created under the Financing Documents; (b) Indebtedness outstanding on the date hereof and set forth in Schedule 6.18, and extensions, renewals and replacements of any such Indebtedness that do not increase the aggregate outstanding principal amount thereof; (c) Indebtedness of a Subsidiary of an Obligor owed to such Obligor or a Wholly Owned Subsidiary of such Obligor, which Indebtedness shall (i) ~~Indebtedness secured by purchase money security interests~~ be on terms (including subordination terms) reasonably acceptable to the Lender and ~~Capital Leases permitted in clause~~ (cii) or constitute Collateral under the Security Agreement; (d) Indebtedness of ~~Section 6.7~~the Borrower or any Subsidiary in respect of Capital Lease Obligations and purchase money obligations for fixed or capital assets, provided that the aggregate principal amount of Indebtedness permitted by this clause (iid) 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do shall 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 exceed $100,000 at any time outstanding; (e) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; (f) Guarantees of the Borrower in respect of Indebtedness otherwise permitted hereunder of the Borrower; (g) so long as no Default has occurred and is continuing or would result therefrom, Indebtedness of the Borrower secured by real property owned by the Borrower (but not secured by any Collateral, for avoidance of doubt); provided that the Lender shall have received a Collateral Access Agreement (as such ~~Borrower to~~ term is defined in the Security Agreement) in respect of such ~~other Borrowers which Intercompany Notes shall be~~ real property from the holder of such Indebtedness and an intercreditor agreement 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~~ Lender; and (h) Indebtedness of any Person that becomes a Subsidiary after the ~~Obligations~~date hereof; provided that (Bi) ~~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)~~ Indebtedness exists at the time ~~any~~ such ~~intercompany loan or advance is made by any Borrower to any other Borrower~~ Person becomes a Subsidiary 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 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~~ created in cash until after the Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the extent permitted under Section 6.17 and (xi) unsecured Indebtedness not otherwise referred to contemplation of or in this Section 6.3 not exceeding $1,000,000 in aggregate principal amount outstanding at any time for all Credit Parties. (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 Obligationsconnection with such Person becoming a Subsidiary, (ii) ~~Indebtedness secured by a Permitted Encumbrance if the asset securing such Indebtedness has been sold~~ no Default shall have occurred and be continuing or ~~otherwise disposed of in accordance with Sections 6.8(b) or (c)~~ result therefrom, and (iii) ~~Indebtedness permitted~~ the Lender shall have received an intercreditor agreement, in form and substance (including that the Lender shall retain its first-priority, perfected security interest in the Collateral) satisfactory to the Lender in the Lender’s reasonable discretion, duly executed and delivered by ~~Section 6.3(a)(v~~such Subsidiary and any other lender(s) ~~upon any refinancing thereof in accordance with Section 6.3(a)(v)~~to such Subsidiary.

Appears in 1 contract

Sources: Loan Agreement (Valpey Fisher Corp)

Indebtedness. ~~(a) No Credit Party~~ The Borrower shall not, and shall not permit any of the other Companies to, create, incur, assume or ~~permit to exist~~ become or remain liable in respect of any Indebtedness, except the following (~~without duplication~~collectively, the "Permitted Indebtedness"): (a) Indebtedness to the Senior Lender hereunder; (b) Indebtedness consisting of Intercompany Loans. However, at all times such Intercompany Loans shall be evidenced by Intercompany Notes and all right, title and interest of the obligee of each such Intercompany Note in and to such note and the related Intercompany Collateral shall have been assigned to the Collateral Agent, for the benefit of the Senior Lender, as security for the Obligations (other than Obligations under the Environmental Indemnity); (c) Current liabilities (other than for borrowed money) incurred in the ordinary course of the Companies' respective businesses and in accordance with customary trade practices; (d) Indebtedness, if any, of the Companies existing as of the Third Closing and referred to in Schedule 3.8(a), in not more than the respective unpaid principal amounts thereof specified in such Schedule and all renewals, extensions or refinancings of any such Indebtedness in an amount not exceeding the lesser of (i) ~~Indebtedness secured by purchase money security interests and Capital Leases permitted in clause (c)~~ the principal amount thereof outstanding as of the Third Closing or ~~(d) of Section 6.7,~~ (ii) the ~~Loans~~ principal amount thereof remaining unpaid immediately prior to such renewal, extension or refinancing, together with, in each instance, Permitted Closing Expenses incurred in connection with the renewal, extension or refinancing (and ~~the other Obligations,~~ any Indebtedness permitted under this subparagraph (~~iii~~d) ~~deferred taxes,~~ may be recourse 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have same is recourse on the ~~effect of increasing the~~date hereof); (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 shall be a Great Northern Advance, (ixe) Indebtedness ~~owing to Affiliates and holders~~ of ~~Stock~~ the Companies in respect of such Credit Party that constitutes Subordinated Debt, is unsecured, interest on which is not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements Contingent Obligations to the 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) No Credit Party shall6.4, ~~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~~Operating Partnership Guaranty; (f) Indebtedness of a Partnership to SLT, ~~other than~~ SLC, a Subsidiary, incurred pursuant to Section 7.3 of the partnership agreement of the Realty Partnership or Section 7.3 of the partnership agreement for the Operating Partnership. However, (i) at the ~~Obligations~~election of the Senior Lender such Indebtedness must be evidenced by an Intercompany Note and the other conditions set forth in subsection 6.1(b) (relating to Intercompany Loans) must be satisfied with respect to such Indebtedness, and (ii) ~~Indebtedness secured by a Permitted Encumbrance if~~ at the ~~asset securing~~ time such Indebtedness ~~has been sold~~ is incurred, the general partner to which such Indebtedness is owed shall execute a subordination agreement, in form reasonably acceptable to the Senior Lender, subordinating such Indebtedness to the Loans; (g) Non-recourse Indebtedness incurred or ~~otherwise disposed~~ assumed by the Partnerships in connection with the acquisition of Hotel Properties or other Assets after the Third Closing Date in accordance with ~~Sections 6.8(b~~the provisions of Section 6.5 or a non-recourse refinancing of such Indebtedness in a principal amount not exceeding the amount being refinanced; (h) With respect to a Hotel Property or a direct or indirect interest therein acquired by the Borrower or any other Company as permitted by, and subject to the conditions of, Section 6.5, any non-recourse Indebtedness to which such Hotel Property or a direct or indirect interest therein is subject to at the time of such acquisition or a non-recourse refinancing of such Indebtedness in a principal amount not exceeding the amount being refinanced; (ci) Indebtedness, which may be recourse Indebtedness, incurred in connection with the Acquisition Credit Facility or the Merr▇▇▇ ▇▇▇ns, and additional loans similar to the Merr▇▇▇ ▇▇▇ns made by the originator of the Merr▇▇▇ ▇▇▇ns up to an aggregate amount of $50,000,000 after the expiration of the Acquisition Loan Facility, as provided in Schedule 1.7.; (j) Indebtedness of the Companies secured as permitted by, and subject to the provisions of, subsections 6.2(e) and 6.2(h) (~~iii~~which Section 6.2(h) obligations may be recourse); (k) Non-recourse Indebtedness of the Companies secured as permitted by, and subject to the provisions of, subsection 6.2(i); (l) Indebtedness ~~permitted~~ of the Companies (which may be unsecured) incurred to Starwood or any Affiliate of Starwood concurrently with the execution and delivery of this Agreement in connection with the cancellation of the Warrants, and all extensions or renewals of the same. However, the maximum principal amount of such Indebtedness shall not exceed $800,000; (m) subject to the Borrower's and the other Companies' prior compliance with the provisions of paragraph (i) of subsection 1.9(b) in connection with the application of the proceeds of any public issuance of debt or equity securities, Indebtedness of the Partnerships to Starwood upon consummation of the Reorganization and which are payable only if (i) SLT and SLC consummate a public offering of shares of beneficial interest of SLT and shares of the common stock of SLC within eighteen (18) months following the consummation of the Reorganization and (ii) such offering results in the receipt by ~~Section 6.3(a)(v~~SLT and SLC of gross proceeds of not less than $150,000,000 and as otherwise described in the Reorganization Proxy Statement; and (n) ~~upon any refinancing thereof in accordance with Section 6.3(a)(v)~~obligations under ground leases, operating leases and Capital Leases which are not financing devices.

Appears in 1 contract

Sources: Credit Agreement (Starwood Lodging Corp)

Indebtedness. No Borrower shall incur, create, assume, become or be liable in any manner with respect to, or permit to exist, any obligations or indebtedness, except: (a) ~~No Credit Party shall create~~the Obligations; (b) trade obligations and normal accruals in the ordinary course of business not yet due and payable, ~~incur~~or with respect to which such Borrower is contesting in good faith the amount or validity thereof by appropriate proceedings diligently pursued and available to such Borrower, ~~assume~~ and with respect to which adequate reserves have been set aside on its books; (c) purchase money indebtedness (including capital leases) to the extent not incurred or ~~permit~~ secured by Liens (including capital leases) in violation of any other provision of this Agreement; (d) the indebtedness set forth on Schedule 9.9 hereto; (e) indebtedness owing from a Borrower or a Guarantor to ~~exist~~ another Borrower or a Guarantor; (f) indebtedness incurred in connection with cotton hedg▇▇ ▇▇ the ordinary course of such Borrower's business; (g) indebtedness arising from interest rate swap agreements or other interest rate protection agreements between such Borrower and any ~~Indebtedness~~Lender; (h) indebtedness for money borrowed that is owed by a Foreign Subsidiary, ~~except (without duplication)~~ non-U.S. Affiliate or joint venture of a Borrower so long as the indebtedness does not exceed the value of any Offshore Equipment that has been released by Collateral Agent in connection with a Permitted Property Transfer, such indebtedness is secured only by a Lien on such released Offshore Equipment and the other terms of such indebtedness are acceptable in all respects to Agents; provided, that, (i) ~~Indebtedness secured by purchase money security interests~~ such Borrower may only make regularly scheduled payments of principal and ~~Capital Leases permitted~~ interest in ~~clause (c)~~ respect of such indebtedness in accordance with the terms of the agreement or ~~(d) of Section 6.7~~instrument evidencing or giving rise to such indebtedness as in effect on the date hereof, (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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) No Credit Party shallnot, directly or indirectly, ~~voluntarily purchase~~(A) amend, modify, alter or change the terms of such indebtedness or any agreement, document or instrument related thereto as in effect on the date hereof without the prior written consent of Agents, or (B) redeem, ~~defease or prepay any principal of~~retire, ~~premium~~defease, 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 asset securing such Indebtedness has been sold purchase or otherwise ~~disposed of in accordance with Sections 6.8(b)~~ acquire such indebtedness, or ~~(c)~~ set aside or otherwise deposit or invest any sums for such purpose, and (iii) ~~Indebtedness permitted~~ Borrowers shall furnish to Agents all notices or demands in connection with such indebtedness either received by ~~Section 6.3(a)(v) upon any refinancing thereof in accordance~~ Borrowers or on their behalf, promptly after the receipt thereof, or sent by Borrowers or on their behalf, concurrently with ~~Section 6.3(a)(v)~~the sending thereof, as the case may be.

Appears in 1 contract

Sources: Loan and Security Agreement (Dyersburg Corp)

Indebtedness. ~~(a) No Credit Party shall create~~Create, incur, assume or ~~permit~~ suffer to ~~exist~~ exist, or otherwise become or be liable in respect of any ~~Indebtedness~~Indebtedness other than: (i) Indebtedness in respect of the Obligations and the Borrower's obligations under the Servicing Credit Agreement and the documents related thereto; (ii) Indebtedness incurred to finance the acquisition of fixed or capital assets (whether pursuant to a loan, ~~except~~ a Financing Lease or otherwise) in an aggregate principal amount outstanding not to exceed $500,000 at any time; (~~without duplication~~iii) trade liabilities and accrued expenses incurred in the ordinary course of business and payable in accordance with customary practices; (iv) guaranties resulting from endorsement of negotiable instruments for collection in the ordinary course of business; (v) Indebtedness resulting from gestation repurchase agreements for the repurchase of non-Agency mortgage-backed securities supported by Eligible Jumbo Mortgage Loans; (vi) Indebtedness incurred in connection with the financing of Specialty Mortgage Products; provided that (a) the aggregate amount of such Indebtedness outstanding at any time shall not exceed $45,000,000, (b) the Lenders shall have a right of first refusal (but shall have no obligation) to provide such financing to the Borrower on competitive terms pursuant to a supplement to this Agreement and the other Loan Documents, and (c) if the Lenders do not provide such financing, (A) the Collateral Agent shall act as the collateral agent for the other lender(s) providing such financing and such Specialty Mortgage Products shall be pledged to and held by the Collateral Agent for the benefit of such other lender(s), and (B) such Indebtedness shall be either (A) non-recourse to the Borrower, or (B) subject to the terms of an intercreditor and subordination agreement in form and substance satisfactory to the Administrative Agent in the exercise of its sole discretion; (vii) Indebtedness provided by PWRES to the Borrower for the purpose of (a) originating or acquiring Mortgage Loans (subject to the limitation set forth in clause (vi) above) (i) ~~Indebtedness secured by purchase money security interests and Capital Leases permitted in clause (c)~~ to be simultaneously sold to PWRES or ~~(d) of Section 6.7,~~ (ii) to be held not more than five (5) Business Days by the Borrower before being sold to HTP Financial or PWRES, which Mortgage Loans are in either case financed by PWRES under the PWRES Financing Agreements or (b) financing principal and ~~the other Obligations~~interest, ~~(iii) deferred~~ or taxes, insurance and expense advances under the HTP Financing Agreements; provided that in each case such Indebtedness shall be subject to the ~~extent permitted under applicable law, (iv) unfunded pension fund and other employee benefit plan obligations and liabilities to~~ terms of the extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 intercreditor agreement in form and substance ~~reasonably~~ satisfactory to the Administrative Agent in the exercise of its reasonable discretion; (viii) Indebtedness arising under short-term arbitrage lines of credit with any of Chemical Bank, First Bank National Association, Colorado National Bank or any Lender, each borrowing under which is secured solely by certificates of deposit issued by such lender thereunder, A-1/P-1 commercial paper and/or marketable direct obligations issued or guaranteed by the United States government or any agency thereof and ~~shall be pledged~~ backed by the full faith and ~~delivered to Agent pursuant to~~ credit of the ~~applicable Pledge Agreement~~ United States, in each case substantially matching such borrowings in dollar amount and maturity; (ix) Indebtedness incurred as of July 31, 1995 and described on Exhibit O attached hereto; (x) Indebtedness held by Harbourton Financial Services 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 Harbourton Holdings, L.P. subordinated to the Obligations in the manner and to the extent reasonably required by the Required Lenders pursuant to written subordination agreements satisfactory in form and substance to the Required Lenders (which subordination agreement shall provide, among other things, that such subordinated Indebtedness shall be short-term, unsecured, on market terms and at market rates, used for working capital purposes, and that after the occurrence of ~~such Borrower hereunder in a manner reasonably satisfactory to Agent;~~ Potential Default or an Event of Default, no payments of interest or principal shall be payable with respect thereto) which Indebtedness shall not at any time exceed an aggregate principal amount of $15,000,000; (Dxi) any Indebtedness which has been reclassified as Indebtedness, which, at the time ~~any~~ of the creation of such ~~intercompany loan~~ Indebtedness, had been reasonably classified in accordance with GAAP as a sale or ~~advance is made by any Borrower~~ transfer of defaulted FHA or VA Mortgage Loans on a servicing retained basis to any other Person; (xii) Indebtedness consisting of the portion of the purchase price for mortgage servicing rights purchased by the Borrower ~~and after giving effect thereto, each~~ that is deferred in order to secure the indemnification obligations of the seller of such ~~Borrower shall be Solvent;~~ servicing rights; (Exiii) ~~no Default or Event~~ Indebtedness consisting of ~~Default would occur and be continuing after giving effect to any such proposed intercompany loan; and (F)~~ reserves for foreclosure losses incurred in the ~~case~~ ordinary course 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 shall be a Great Northern Advance, (ix) Indebtedness owing to Affiliates business 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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 asset securing such Indebtedness has been sold or otherwise disposed of reserves established in accordance with ~~Sections 6.8(b~~GAAP in the ordinary course of business; and (xiv) renewals, extensions, replacements refinancings or ~~(c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon~~ refundings of any ~~refinancing thereof in accordance with Section 6.3(a)(v)~~of the foregoing.

Appears in 1 contract

Sources: Credit Agreement (Harbourton Financial Services L P)

Indebtedness. ~~(a) No~~ The Credit ~~Party~~ Parties shall not and shall not cause or permit their Subsidiaries directly or indirectly to create, incur, ~~assume~~ assume, or ~~permit~~ otherwise become or remain directly or indirectly liable with respect to ~~exist~~ any ~~Indebtedness~~Indebtedness (other than pursuant to a Contingent Obligation permitted under SECTION 3.4) except: (a) the Obligations; Annex A Page 39 (b) subject to SECTION 2.7(d) and so long as no such loans are made to an Unrestricted Subsidiary, ~~except (without duplication)~~ intercompany Indebtedness arising from loans made by: (i) ~~Indebtedness secured by purchase money security interests~~ Wholly-owned Subsidiaries of Ultimate Holdings to Ultimate Holdings for the purposes described in SECTIONS 3.5(a), 3.5(e), 3.5(i) and ~~Capital Leases permitted~~ 3.5(j) (subject to the dollar restrictions set forth in ~~clause (c) or (d) of Section 6.7,~~ such Sections); (ii) US Borrowers to their Wholly-owned US Subsidiaries (and to the ~~Loans~~ extent expressly consented to in any Inter-Subsidiary Loan Notice, any Wholly-owned Subsidiary of either US Borrower to any Wholly-owned US Subsidiary of such Subsidiary) to fund working capital and general corporate needs of such Subsidiaries in the ~~other Obligations,~~ ordinary course of business; (iii) ~~deferred taxes,~~ US Borrowers to their Wholly-owned Non-US Subsidiaries (and to the extent ~~permitted under applicable law~~expressly consented to in any Inter-Subsidiary Loan Notice, (iv) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect any Wholly-owned Subsidiary 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 either US Borrower to any ~~other Borrower~~ Wholly-owned Non-US Subsidiary of such Subsidiary) to fund working capital and general corporate needs of such Subsidiaries in the ordinary course of business in an aggregate amount not to exceed the Dollar Equivalent of US$10,000,000 (or the Dollar Equivalent of US$15,000,000 so long as, after giving effect ~~thereto~~to such loan, ~~each such Borrower shall be Solvent;~~ (Ex) average daily US Borrowing Availability for the 90-day period preceding the then present date exceeded US$20,000,000 and (y) no Default or Event of Default ~~would occur~~ was in existence) at any time outstanding reduced by the aggregate amount invested pursuant to SECTION 3.3(d) which is applicable to this clause (iii); (iv) US Borrowers to European Borrower and ~~be continuing~~ to Wholly-owned Subsidiaries of European Borrower or of European Second Tier Dutch Holdings (and to the extent expressly consented to in any Inter-Subsidiary Loan Notice, any Wholly-owned Subsidiary of either US Borrower to any Wholly-owned Subsidiary of European Borrower or of European Second Tier Dutch Holdings) to fund working capital and general corporate needs of such Persons in the ordinary course of business in an aggregate amount not to exceed the Dollar Equivalent of US$4,000,000 at any time outstanding reduced by the aggregate amount invested pursuant to SECTION 3.3(d) which is applicable to this clause (iv); (v) European Borrower to Wholly-owned Subsidiaries of European Borrower or of European Second Tier Dutch Holdings (and to the extent expressly permitted in any Inter-Subsidiary Loan Notice, any Wholly-owned Subsidiary of European Borrower to any Wholly-owned Subsidiary of European Borrower or of European Second Tier Dutch Holdings) to fund working capital and general corporate needs of such Subsidiaries in the ordinary course of business in an aggregate amount not to exceed the Dollar Equivalent of US$7,500,000 (or the Dollar Equivalent of US$10,000,000 so long as, after giving effect to such loan, (x) average daily European Borrowing Annex A Page 40 Availability for the 90-day period preceding the then present date exceeded 10,000,000 Euros and (y) no Default or Event of Default was in existence) at any time outstanding reduced by the aggregate amount invested pursuant to SECTION 3.3(d) which is applicable to this clause (v); (vi) European Borrower to US Borrowers or Wholly-owned US Subsidiaries of US Borrowers (and to the extent expressly consented to in any Inter-Subsidiary Loan Notice, any Wholly-owned Subsidiary of European Borrower to US Borrowers or any Wholly-owned US Subsidiary of US Borrowers) to fund working capital and general corporate needs of such Persons in the ordinary course of business in an aggregate amount not to exceed the Dollar Equivalent of US$5,000,000 at any time outstanding reduced by the aggregate amount invested pursuant to SECTION 3.3(d) which is applicable to this clause (vi) (additionally, to the extent that after giving effect to any payment under the Public Note Indenture permitted by SECTION 3.5(c), US Borrowing Availability plus the aggregate amount of cash and Cash Equivalents on hand of Ultimate Holdings, Holdings, US SportRack Holdings, US Borrowers and the Subsidiaries of US Borrowers would be less than the Dollar Equivalent of US$12,500,000, European Borrower may make a loan to Holdings on the date such ~~proposed intercompany loan; and (F)~~ payment is due in the ~~case~~ amount by which such Availability plus such amount of ~~any intercompany Indebtedness, (X) the Borrower advancing such funds shall have Borrowing Availability under its separate Borrowing Base of not~~ cash and Cash Equivalents is less than ~~$1,00~~ the Dollar Equivalent of US$12,500,000; provided that such intercompany loan shall be repaid as soon as practicable after, and to the extent that (after giving effect to such repayment), such Availability plus the amount of such cash and Cash Equivalents exceeds the Dollar Equivalent of US$12,500,000); (vii) to the extent that an intercompany loan is permitted to be made to a Wholly-owned Subsidiary pursuant to any of clauses (ii), (iii), (iv), (v) or (vi) above, an intercompany loan may be made to a non-Wholly-owned Subsidiary (as opposed to a Wholly-owned Subsidiary) established, created or acquired after the Closing Date in accordance with SECTION 3.13(ii) or to an Unfavorable Jurisdiction Credit Party (solely for the purposes of this SECTION 3.1(b), all Unfavorable Jurisdiction Credit Parties shall be deemed to be non-Wholly-owned Subsidiaries) to fund working capital and general corporate needs of such non-Wholly-owned Subsidiary or such Unfavorable Jurisdiction Credit Party, as applicable (such intercompany loans, to any non-Wholly-owned Subsidiary or Unfavorable Jurisdiction Credit Party shall be considered an intercompany loan to a Wholly-owned Subsidiary solely for the purposes of making the calculations set forth in clauses (ii), (iii), (iv), (v) and (vi) above, as applicable), so long as (x) the aggregate amount of all outstanding intercompany loans to non-Wholly-owned Subsidiaries and Unfavorable Jurisdiction Credit Parties does not exceed the Dollar Equivalent of US$3,500,000 at any time outstanding, reduced by the aggregate amount invested in non-Wholly-owned Subsidiaries and Unfavorable Jurisdiction Credit Parties pursuant to SECTION 3.3(d) which is applicable to this clause (vii) Annex A Page 41 and (y) no additional intercompany Indebtedness under this clause (vii) may be incurred during the existence of an Event of Default; and (viii) Ultimate Holdings to its Subsidiaries, from funds that Ultimate Holdings receives from its Stockholders concurrently with the making of such intercompany loan, or so long as such intercompany loans are unsecured, no payments are permitted on such intercompany loans until all of the Obligations have been paid in full and the Commitments have been terminated and such intercompany loans are subordinated to the Obligations in a manner acceptable to Agent; PROVIDED, HOWEVER, that all such Indebtedness referred to in the foregoing clause (Yi), (ii), (iii), (iv), (v), (vi), (vii) and (viii) shall be evidenced by promissory notes ("INTERCOMPANY NOTES") having terms reasonably satisfactory to Agent, the sole originally executed counterparts of which shall be pledged and delivered to Agent, for the benefit of Agent and Lenders, as security for the Obligations; (c) intercompany Indebtedness arising from loans made by a Credit Party to an Unrestricted Subsidiary to fund working capital and general corporate needs of such Unrestricted Subsidiary in an aggregate amount not to exceed the Dollar Equivalent of US$1,000,000 at any time outstanding reduced by the aggregate amount invested pursuant to SECTION 3.3(d) which is applicable to this clause; PROVIDED, HOWEVER, that (i) all such Indebtedness referred to in this clause (c) shall be evidenced by Intercompany Notes having terms reasonably satisfactory to Agent, the sole originally executed counterparts of which shall be pledged and delivered to Agent, for the benefit of Agent and Lenders, as security for the Obligations and (ii) no additional intercompany Indebtedness under this clause (c) may be incurred during the existence of an Event of Default; (d) the ~~intercompany Indebtedness shall be a Great Northern Advance,~~ Public Note Debt; (ixe) the Subordinated Seller PIK Note Debt; (f) the Seller Contingent Payment Debt; (g) Indebtedness incurred in the ordinary course of business not to exceed the Dollar Equivalent of US$10,000,000 in the aggregate at any time outstanding secured by purchase money Liens or incurred with respect to Capital Leases; (h) Indebtedness outstanding on the date hereof and listed on Schedule 3.1 and any refinancings, refundings, renewals or extensions thereof by the applicable Credit Party; (i) Indebtedness incurred to repurchase equity issued by Ultimate Holdings or its direct parent to employees, consultants, agents, officers and directors of a Credit Party, to the extent such repurchase is permitted by SECTION 3.5(j); Annex A Page 42 (j) unsecured Indebtedness which is subordinated to the Obligations in a manner satisfactory to Agent and Requisite Lenders and which is incurred in connection with the consummation of any Permitted Acquisition and which is owing to ~~Affiliates and holders~~ a seller of the Stock or assets sold pursuant to such Permitted Acquisition; (k) Permitted Acquisition Earnouts; (l) unsecured indebtedness of ~~such Credit Party that constitutes Subordinated Debt, is unsecured, interest on~~ Ultimate Holdings owing to its Stockholders which is subordinated to the Obligations in a manner satisfactory to Agent and Requisite Lenders and contains terms and conditions which are satisfactory to Agent and Requisite Lenders, including without limitation not ~~payable~~ providing for any scheduled payments whatsoever (other than non-cash payment in ~~cash~~ kind payments) until after the Termination Date (the "SUBORDINATED ULTIMATE HOLDINGS PIK DEBT"); and concurrently with the receipt of proceeds from such Subordinated Ultimate Holdings PIK Debt, Ultimate Holdings may transfer the proceeds of such Subordinated Ultimate Holdings PIK Debt to its Subsidiaries as ~~to which no principal is payable until after the Termination Date,~~ capital contributions or intercompany loans; and (xm) ~~Indebtedness under Hedging Agreements to the extent permitted under Section 6.17 and (xi)~~ any other unsecured Indebtedness owing to any non-Credit Party not ~~otherwise referred~~ to exceed the Dollar Equivalent of US$10,000,000 in ~~this Section 6.3 not exceeding $1,000,000 in~~ the aggregate ~~principal amount outstanding~~ at any time ~~for all Credit Parties.~~ outstanding; provided that the aggregate amount of such Indebtedness (bor, without duplication, any Contingent Obligations pertaining to such Indebtedness) ~~No Credit Party shall, directly~~ at any time owing (or ~~indirectly, voluntarily purchase, redeem, defease~~ potentially owing with respect to Contingent Obligations) by European Ultimate Holdings or ~~prepay~~ any ~~principal of, premium, if any, interest or other amount payable in respect~~ of ~~any Indebtedness, other than~~ its Subsidiaries shall not exceed the Dollar Equivalent of US$6,000,000; provided that (i) no additional Indebtedness under this clause (m) may be incurred during the ~~Obligations,~~ continuance of an Event of Default and (ii) up to the Dollar Equivalent of US$5,000,000 in the aggregate at any time outstanding of Indebtedness of any Unrestricted Subsidiary may be secured (it being understood that no other Credit Party shall have any Contingent Obligations with respect to such Indebtedness) by ~~a Permitted Encumbrance if~~ the ~~asset securing~~ assets of such ~~Indebtedness has been sold or otherwise disposed~~ Unrestricted Subsidiary in favor of the Person that funded the acquisition of such Credit Party as contemplated in ~~accordance with Sections 6.8(b~~the proviso to clause (ix) ~~or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v)~~of the last paragraph of SECTION 3.6.

Appears in 1 contract

Sources: Credit Agreement (Aas Capital Corp)

Indebtedness. ~~(a) No Credit Party shall~~ Incur, create~~, incur~~, assume or ~~permit~~ suffer to exist any Indebtedness, ~~except~~ except: (~~without duplication~~a) the Obligations under this Agreement and the other Loan Documents; (b) Indebtedness 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 same terms; (c) Indebtedness created under leases which, in accordance with GAAP, have been recorded and/or should have been recorded on the books of the applicable Borrower as capital leases; provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $5,000,000; (d) unsecured Subordinated Indebtedness; (e) accounts payable (for the deferred purchase price of property or services) which are from time to time incurred in the ordinary course of business and which are not in excess of ninety (90) days past the invoice or billing date; (f) Permitted Real Estate Debt and Guarantees by the Borrower or any Loan Party that is the tenant of the applicable real property of such Permitted Real Estate Debt; (g) 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 of its other Subsidiaries is bound with respect to such Indebtedness, (iii) the Borrower is in full compliance with Section 7.11 hereof before and after such acquisition and (iv) if such Indebtedness is secured by Inventory of such Subsidiary, such Indebtedness is Permitted Floorplan Silo Indebtedness; (h) Indebtedness secured by ~~purchase money security interests~~ Liens upon any property hereafter acquired by the Borrower or any 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 ~~Capital Leases permitted in clause~~ after such Permitted Acquisition, which Indebtedness is assumed by such Person simultaneously with such acquisition, which Liens extend only to such property so acquired (cand not to any after-acquired property) or and with respect to which Indebtedness neither the Borrower nor any of its Subsidiaries (dother than the 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 otherwise) of 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; and (o) Permitted Floorplan Silo Indebtedness, provided that each Floorplan Silo Lender holding such Indebtedness (or in the case of a Used Motor Vehicle Facility, the Used Motor Vehicle Facility Agent) is a party to the 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 ~~6.7~~7.01(p), plus (ii) the ~~Loans and the other Obligations,~~ aggregate amount of Investments (~~iii~~on a gross basis excluding any reserves) 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the extent permitted under Section ~~6.17 and~~ 7.05(j) shall not exceed $25,000,000 at any time; (xiq) ~~unsecured Indebtedness~~ Obligations in respect of surety or other bonds or similar instruments entered into in the ordinary course of business, in an aggregate amount not ~~otherwise referred~~ to ~~in this Section 6.3 not exceeding~~ exceed $~~1,000,000 in aggregate principal amount~~ 5,000,000 of obligations outstanding at any ~~time for all Credit Parties.~~time; and (br) ~~No Credit Party shall, directly~~ Unsecured Indebtedness owed by any Subsidiary Guarantor to the Borrower 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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v)to another Subsidiary Guarantor.

Appears in 1 contract

Sources: Credit Agreement (Asbury Automotive Group Inc)

Indebtedness. (a) ~~No Credit Party~~ The Borrower shall not, nor shall the Borrower permit any Subsidiary to, directly or indirectly: (i) create, incur, ~~assume~~ issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness), or (ii) issue any shares of Disqualified Stock or permit any Subsidiary to ~~exist~~ 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, ~~except~~ Disqualified Stock or Preferred Stock incurred or issued pursuant to following clauses (~~without duplication) (i) Indebtedness secured by purchase money security interests and Capital Leases permitted in clause (c) or (d) of Section 6.7~~A), (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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3B) and ~~refinancings thereof or amendments or modifications thereto that do not have the effect of increasing the~~(C), “Permitted Ratio Debt”); (A) ~~each Borrower shall have executed and delivered~~ with respect to ~~each other Borrower,~~ Indebtedness secured on a pari passu basis with the ~~Closing Date, a demand note (collectively~~First Lien Obligations, 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 First Lien Net Leverage Ratio for the ~~Obligations;~~ 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 2.00 to 1.00; (B) ~~each Borrower shall record all intercompany transactions~~ with respect to Indebtedness secured by ▇▇▇▇▇ on ~~its books and records~~ a basis that is junior in ~~a manner reasonably satisfactory~~ priority to ~~Agent~~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 ~~obligations of each Borrower under~~ 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 ~~such Intercompany Notes shall be subordinated to~~ cash received from the ~~Obligations~~ incurrence of such ~~Borrower hereunder~~ Indebtedness proposed to be incurred) would be no greater than 3.50 to 1.00, in each case, determined on a ~~manner reasonably satisfactory to Agent;~~ pro forma basis (D) 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 ~~time any~~ beginning of such ~~intercompany loan~~ Test Period; provided further that (A) Subsidiaries of the Borrower that are not Guarantors may not incur Indebtedness or ~~advance is made by any Borrower to any other Borrower and~~ issue Disqualified Stock or Preferred Stock under this Section 7.02(a) if, 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 pro forma effect to such ~~intercompany loan~~incurrence or issuance (including a pro forma application of the net proceeds therefrom), ~~or (Y)~~ the ~~intercompany Indebtedness shall be a Great Northern Advance~~aggregate principal amount of Indebtedness, ~~(ix) Indebtedness owing to Affiliates~~ liquidation preference of Disqualified Stock and ~~holders~~ amount of Preferred Stock of such ~~Credit Party that constitutes Subordinated Debt~~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 ~~unsecured~~issued, ~~interest~~ 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 ~~which is not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination Date~~a pro forma basis), (B) Permitted Ratio Debt (x) ~~Indebtedness under Hedging Agreements to~~ shall not mature earlier than the ~~extent permitted under Section 6.17 and (xi) unsecured Indebtedness not otherwise referred to~~ Latest Maturity Date as in ~~this Section 6.3 not exceeding $1,000,000 in aggregate principal amount outstanding at any time for all Credit Parties~~effect on the date of incurrence. (b) No The provisions of Section 7.02 (a) will not apply to: (1) Indebtedness under the Loan Documents (including any Incremental Loans, Other Loans, Extended Term Loans and Replacement Loans); (2) the incurrence by the Borrower of the Senior Notes and the Guarantee thereof by any Guarantor; (3) 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 ~~Party shall~~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, ~~directly or indirectly, voluntarily~~ to finance the purchase, ~~redeem~~lease, ~~defease~~ expansion, construction, installation, replacement, repair or ~~prepay any principal of~~improvement of property (real or personal), ~~premium, if any, interest~~ equipment or other ~~amount payable~~ 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 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 ~~Indebtedness~~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 clause (7); (8) the incurrence of Indebtedness of any Subsidiary of the Borrower to the Borrower or any of its Subsidiaries to the extent permitted by Section 7.05; provided that any such Indebtedness for borrowed money owing to a Subsidiary of the Borrower that is not a 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 or any such subsequent transfer of any such Indebtedness (except to the Borrower or a Subsidiary of the Borrower 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 another Subsidiary of the Borrower; 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 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, 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 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 ~~Obligations~~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) ~~Indebtedness secured by a Permitted Encumbrance if~~ in the ~~asset securing~~ event of any extension, replacement, refinancing, renewal or defeasance of any such ~~Indebtedness has been sold~~ Indebtedness, Disqualified Stock or ~~otherwise disposed~~ 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 ~~accordance~~ connection with ~~Sections 6.8(b)~~ the issuance of such new Indebtedness, Disqualified Stock or ~~(c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).~~Preferred Stock or the extension, replacement, refunding, refinancing, renewal or defeasance of such Indebtedness, Disqualified Stock or Preferred Stock;

Appears in 1 contract

Sources: Credit Agreement (Superior Industries International Inc)

Indebtedness. The Borrower will not, nor will it permit any of its Subsidiaries (aother than the Internet Ventures) ~~No Credit Party shall~~ to create, ~~incur, assume~~ incur or ~~permit~~ suffer to exist any Indebtedness, ~~except (without duplication)~~ except: (i) Indebtedness ~~secured by purchase money security interests~~ arising or existing under this Agreement and ~~Capital Leases permitted in clause (c) or (d) of Section 6.7,~~ the other Loan Documents; (ii) Indebtedness set forth in Schedule 6.11, and renewals, refinancings and extensions (but not increases in the ~~Loans~~ principal amount) thereof (and which in the ~~other Obligations~~case of those 7.36% Senior Notes of the Borrower due October 15, 2003 shall not have a shorter maturity and shall be on terms and conditions consistent with those prevailing in the private placement market at such time); (iii) ~~deferred taxes~~Capitalized Lease Obligations and Indebtedness incurred, in each case, to provide all or a portion of the ~~extent permitted under applicable law~~purchase price or costs of construction of an asset, providedthat (i) such Indebtedness when incurred shall not exceed the purchase price or cost of construction of such asset or, in the case of a sale/leaseback transaction, the fair market value of such asset, and (ii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing; (iv) ~~unfunded pension fund~~ Indebtedness and ~~other employee benefit plan~~ obligations ~~and liabilities~~ owing under Rate Hedging Obligations relating to the ~~extent they~~ Obligations hereunder and under interest rate, commodities and foreign currency exchange protection agreements entered into in the ordinary course of business to manage existing or reasonably anticipated risks and which are ~~permitted to remain unfunded under applicable law,~~ of a non-speculative nature; (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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 unsecured 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~~permitted under Section 6.14; ~~(B) each Borrower shall record~~ provided all intercompany ~~transactions on its books and records in a manner reasonably satisfactory to Agent; (C)~~ Indebtedness where the ~~obligations of each~~ Borrower ~~under~~ or any ~~such Intercompany Notes~~ other Credit Party is the obligor shall be subordinated to the Obligations ~~of such Borrower hereunder~~ and the Guaranteed Obligations on terms and conditions substantially similar to those set forth in ~~a manner reasonably satisfactory~~ Section 9.17 or otherwise acceptable to the Administrative Agent; ; (Dvi) at other unsecured Indebtedness of (A) the ~~time any such intercompany loan or advance is made by any~~ Borrower to ~~any other Borrower and~~ the extent that upon the incurrence thereof no Default or Unmatured Default shall exist immediately prior to or after giving effect ~~thereto~~thereto on a Pro Forma Basis; and (B) Subsidiaries of the Borrower which in the aggregate does not exceed (I) $5,000,000 with respect to that credit facility extended by Bank One, ~~each such Borrower shall be Solvent~~NA (formerly known as The First National Bank of Chicago) in favor of ▇▇▇▇▇ Group Dublin Limited, as amended, modified, supplemented, extended and replaced; (EII) ~~no Default~~ $5,000,000 with respect to surety bonds, judgment bonds or ~~Event~~ other similar Indebtedness incurred in the ordinary course of ~~Default would occur and be continuing after giving effect to any such proposed intercompany loan~~business; and (FIII) $5,000,000, in all other cases; (vii) commercial letters of credit outside of this Agreement supporting the importation of goods in the ~~case~~ ordinary course of business not to exceed in the aggregate at any ~~intercompany Indebtedness~~time outstanding $10,000,000; and (viii) Guaranty Obligations of Indebtedness permitted under this Section 6.11(i) through 6.11(vii); provided, however, notwithstanding anything herein to the contrary, at no time shall the aggregate amount of the Obligations (Xexcluding from the calculation thereof all commercial Letters of Credit prior to acceptance of a draft or creation of a deferred payment obligation relating thereto) plus all other Consolidated Senior Funded Debt of the Borrower ~~advancing such funds shall have Borrowing Availability under~~ and its ~~separate Borrowing Base~~ Subsidiaries (other than Consolidated Senior Funded Debt that is expressly subordinate in right of not less than $1,00 after giving effect to such intercompany loan, or (Y) the intercompany Indebtedness 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements payment to the ~~extent permitted under Section 6.17 and (xi~~Obligations pursuant to terms acceptable to the Administrative Agent) ~~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~~exceed the Borrowing Base based upon the Borrowing Base Certificate most recently delivered pursuant to Section 6.2(iv) at such time. (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 asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).

Appears in 1 contract

Sources: Credit Agreement (Brown Shoe Co Inc/)

Indebtedness. Borrower shall not incur, create, assume, become or be liable in any manner with respect to, or permit to exist, any Indebtedness, except (a) ~~No Credit Party shall create~~the Obligations; (b) Indebtedness arising in the ordinary course of the business of Borrower in connection with worker's compensation, ~~incur~~unemployment insurance or other types of social security benefits in each case consistent with the current practices of Borrower as of the date hereof; provided, ~~assume or permit~~ that, such Indebtedness is secured only by liens on assets and property of Borrower permitted by Section 9.8(f) hereof; (c) Indebtedness of Borrower to ~~exist any Indebtedness~~Simm▇▇▇ ▇▇▇sing after the date hereof pursuant to intercompany loans by Simm▇▇▇ ▇▇ Borrower, ~~except (without duplication)~~ provided, that, (i) the aggregate amount of such Indebtedness ~~secured by purchase money security interests and Capital Leases permitted in clause (c) or (d) of Section 6.7~~shall not exceed $5,000,000, (ii) Borrower shall provide Lender within thirty (30) days after the ~~Loans and~~ end of each month, a report as to the ~~other Obligations~~outstanding amount of such Indebtedness as of the last day of the immediately preceding month, (iii) ~~deferred taxes~~such Indebtedness is subject to, and subordinate in right of payment to, the right of Lender to receive the prior indefeasible payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, and all liens and security interests to secure such Indebtedness shall be subject and subordinate to the ~~extent permitted under applicable law~~liens and security interests of Lender on terms and conditions acceptable to Lender, (iv) ~~unfunded pension fund~~ Lender shall have received, in form and ~~other employee benefit plan obligations and liabilities~~ substance satisfactory to Lender, a subordination agreement providing for the terms of the subordination in right of payment of such Indebtedness to Borrower to the ~~extent they are permitted~~ prior indefeasible payment and satisfaction in full of all of the Obligations, and the subordination by Simm▇▇▇ ▇▇ any liens and security interests to ~~remain unfunded under applicable law~~secure such Indebtedness to the liens and security interests of Lender, duly authorized, executed and delivered by Simm▇▇▇ ▇▇▇ Borrower, (v) ~~existing~~ Borrower shall not, directly or indirectly make, or be required to make, and payments in respect of such Indebtedness ~~described~~ so long as any of the Obligations are outstanding and unpaid, except that Borrower may make payments in ~~Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have~~ respect of such Indebtedness so long as each of the ~~effect of increasing the~~ following conditions is satisfied as determined by Lender: (A) ~~each Borrower~~ Lender shall have ~~executed and delivered to each other Borrower, on~~ received not less than three (3) Business Days prior written notice of the ~~Closing Date, a demand note (collectively, the “Intercompany Notes”) to evidence any such intercompany Indebtedness owing at any time by such~~ intention of Borrower to make 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; prepayment, (B) ~~each Borrower shall record all intercompany transactions on its books and records in a manner reasonably satisfactory to Agent; (C)~~ as of the ~~obligations~~ date of ~~each Borrower under~~ any such ~~Intercompany Notes~~ payment, the daily average of the Excess Availability of Borrower for the immediately preceding thirty (30) consecutive days shall be ~~subordinated to~~ not less than $2,000,000 and as of the ~~Obligations~~ date 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~~ payment and after giving effect thereto, ~~each such~~ the Excess Availability of 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~~ 2,000,000, and (C) as of the date of any such payment, and after giving effect ~~to such intercompany loan~~thereto, no Event of Default, or ~~(Y) the intercompany Indebtedness~~ act, conditions or event which with notice or passage of time or both would constitute an Event of Default, shall ~~be a Great Northern Advance~~exist or have occurred, (ixvi) ~~Indebtedness owing to Affiliates and holders of Stock of such Credit Party that constitutes Subordinated Debt, is unsecured, interest on which is~~ Borrower shall not payable in cash until after the Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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~~ (iA) the Obligations, (ii) Indebtedness secured by a Permitted Encumbrance if the asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c) and (iii) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v).amend,

Appears in 1 contract

Sources: Loan and Security Agreement (Fairwood Corp)

Indebtedness. ~~(a) No Credit Party~~ None of the Borrowers nor any of their respective Subsidiaries shall directly or indirectly create, incur, assume or ~~permit~~ otherwise become or remain directly or indirectly liable with respect 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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that do not have the effect of increasing theexcept: (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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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) 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 evidenced by the Senior Notes; (iii) Permitted Existing Indebtedness and Permitted Refinancing 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 owed to the Lenders in respect of Hedging Obligations permitted under SECTION 7.3(Q); (vii) secured or unsecured purchase money Indebtedness (including Capitalized Leases) incurred by any Borrower or any of its respective 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 ~~Permitted Encumbrance if~~ scheduled maturity and is not due on demand, (3) such Indebtedness does not exceed the ~~asset~~ 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 aggregate outstanding at any time, and (5) any Lien securing such Indebtedness ~~has been sold~~ is permitted under SECTION 7.3(C) (such Indebtedness being referred to herein as "PERMITTED PURCHASE MONEY INDEBTEDNESS"); (viii) Indebtedness (a) in respect of performance bonds and surety or ~~otherwise disposed~~ appeal bonds provided by any Borrower or any of its Subsidiaries to their customers in ~~accordance~~ the ordinary course of their business, (b) in respect of performance bonds or similar obligations of any Borrower or any of its Subsidiaries for or in connection with ~~Sections 6.8(b)~~ or to secure statutory, regulatory or similar obligations, including obligations under health, safety or environmental obligations and (c) ~~and~~ arising from guarantees to suppliers, lessors, licensees, contractors, franchises or customers of obligations (~~iii~~other than Indebtedness) incurred in the ordinary course of business; (ix) Indebtedness permitted under Section 7.3(G)(vii); (x) Indebtedness of any Borrower owing to and held by ~~Section 6.3(a)(v~~any other Borrower; (xi) ~~upon~~ Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any ~~refinancing thereof~~ obligations of any Borrower pursuant to such agreement, in ~~accordance~~ each case incurred in connection with ~~Section 6.3(a)(v)~~the disposition of any business assets of any Borrower (other than a guarantee or other obligation incurred by a Person acquiring such assets for the purpose of financing such purchase) in a principal amount not to exceed the gross proceeds actually received by any Borrower or any of its Subsidiaries in connection with such disposition; PROVIDED, HOWEVER, that the principal amount of any Indebtedness incurred pursuant to this clause, when taken together with all Indebtedness incurred pursuant to this clause and then outstanding, shall not exceed $2,000,000; and (xii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument issued by any Borrower drawn against insufficient funds in the ordinary course of business in an amount not to exceed $250,000 at any time, PROVIDED that such Indebtedness is extinguished within two Business Days of its incurrence.

Appears in 1 contract

Sources: Credit Agreement (American Architectural Products Corp)

Indebtedness. ~~(a) No Credit Party shall create,~~ Neither the Mortgagor nor the Beneficiary will incur, create or assume any indebtedness or ~~permit to exist~~ incur any ~~Indebtedness~~liabilities without the consent of the Mortgagee; provided, ~~except (without duplication) (i) Indebtedness secured by purchase money security interests and Capital Leases permitted in clause (c) or (d) of Section 6.7~~however, (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 unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or 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) if no Default or Event of Default ~~would occur~~ shall have occurred and be ~~continuing after giving effect to any such proposed intercompany loan; and (F) in~~ continuing, the ~~case~~ Beneficiary may, without the consent of ~~any intercompany Indebtedness~~the Mortgagee, ~~(X)~~ incur, create or assume 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 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 Termination Date and as to which no principal is payable until after the Termination Date, (x) Indebtedness under Hedging Agreements to the 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.following indebtedness: (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~~Notes and the other obligations, indebtedness and liabilities secured by this Mortgage or set forth in any other Security Document; (ii) ~~Indebtedness~~ amounts, not secured by ~~a Permitted Encumbrance if~~ the ~~asset securing such Indebtedness has been sold~~ Property or ~~otherwise disposed~~ any part thereof, payable by or on behalf of the Mortgagor or the Beneficiary for or in ~~accordance~~ respect of the operation of the Property in the ordinary course of operating Beneficiary's business, including amounts payable by or on behalf of the Mortgagor or the Beneficiary to suppliers, contractors, mechanics, vendors, materialmen or other persons providing property or services to the Mortgagor or the Beneficiary or to the Premises, or in connection with ~~Sections 6.8(b)~~ the ownership, management, operation, leasing, cleaning, maintenance, repair, replacement, improvement, alteration or ~~(c) and~~ restoration thereof incurred in the ordinary course of operating Beneficiary's business; (iii) amounts, not secured by the Property or any part thereof, payable or reimbursable to any Tenant on account of work performed at the Premises by such Tenant or for costs incurred by such Tenant in connection with its occupancy of space in the Premises; and (iv) indebtedness, not secured by Property or any part thereof, to Tenants to finance leasehold improvements or other costs incurred by a Tenant in connection with its occupancy of its space as long as the agreement evidencing and securing the repayment of any such loan is pursuant to a Lease which otherwise complies with the provisions of Article 20; (v) indebtedness of the Beneficiary to one or more Affiliates of the Beneficiary, either unsecured or secured by Subordinate Mortgages: (A) which provides that payment of any amounts in respect of such indebtedness shall be made only to the extent that Cash Flow is available to pay such amounts after the payment of all amounts then due and payable on all other indebtedness of the Beneficiary and the Mortgagor (subject, however, to accrual of unpaid amounts) in respect of indebtedness permitted under this clause (v) and further provides that any amounts paid in violation of this clause (A) shall be held in trust by the payee thereof for the benefit of Mortgagee and disgorged to Mortgagee upon demand; (B) which prohibits such Affiliate from exercising any remedies, including accelerating any indebtedness and commencing any action (including the filing of a bankruptcy petition or similar proceeding) against the Beneficiary, Mortgagor or all or any part of the Property for collection of interest, principal or other charges while any Security is outstanding and prohibits such Affiliate from filing a claim in a bankruptcy or similar proceeding commenced by Mortgagor, Beneficiary or, in whole or in part, by one or more Affiliates of Beneficiary and requires that such Affiliate shall vote against any plan presented in such proceeding which would alter the terms of the Notes or the Security Documents (provided that such Affiliate may file a claim in a bankruptcy or similar proceeding commenced by an independent Person); (C) which otherwise is on terms comparable to those which would be negotiated at arm's length by unaffiliated parties; (D) which is incurred for the purpose of funding expenses of improvements to, or Equipment for, the Premises permitted under this Mortgage and is so used; (E) which does not, together with the amount of the Test Indebtedness ~~permitted~~ at the time of the incurrence of such indebtedness, exceed the lesser of $230 million and 75% of the fair market value of the Property, based on an appraisal or appraisal update prepared by ~~Section 6.3(a)(v~~▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ or any other MAI appraiser selected by the Beneficiary (unless reasonably disapproved by the Mortgagee), in form reasonably acceptable to Mortgagee, and dated as of a date not more than six (6) months prior to the incurrence of such indebtedness; and (F) will be satisfied (or released, to the extent that Cash Flow is not available to satisfy such indebtedness) prior to or upon any ~~refinancing thereof in accordance with Section 6.3(a)(v).~~transfer of the Property to an entity which is not an Affiliate of the Person holding such indebtedness; (vi) indebtedness to a Person other than an Affiliate or Beneficiary relating solely to financing of tenant improvement or leasing costs (provided any leasing costs payable to Affiliates shall not be in

Appears in 1 contract

Sources: Mortgage, Security Agreement, Assignment of Leases and Rents (Urban Shopping Centers Inc)

Common use of Indebtedness Clause in Contracts