Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”): (a) Obligations of the Loan Parties under the Loan Documents; (b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom; (c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset; (d) the SBA PPP Loan; (e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes; (f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims; (g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP; (h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business; (i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent; (j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties; (k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations; (l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and (m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 9 contracts
Sources: Senior Secured Credit Agreement (Bright Mountain Media, Inc.), Senior Secured Credit Agreement (Bright Mountain Media, Inc.), Senior Secured Credit Agreement (Bright Mountain Media, Inc.)
Indebtedness. CreateNeither the Borrower nor any of its Subsidiaries shall directly or indirectly create, incur, assume or suffer otherwise become or remain directly or indirectly liable with respect to exist any Indebtedness, except the followingIndebtedness which, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations when aggregated with Total Adjusted Outstanding Indebtedness of the Loan Parties under Borrower as of the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b)time of incurrence, but creation or assumption thereof, would not any extensions, renewals or replacements of such Indebtedness except exceed (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness sixty percent (60%) of Capitalization Value as the same are in effect on of the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedincurrence, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, however, that, in connection with a portfolio acquisition, for the six (6) consecutive quarters after such acquisition, Total Adjusted Outstanding Indebtedness permitted under the immediately preceding clause may exceed sixty percent (i60%) of Capitalization Value, but in no event exceed sixty-five percent (65%) of Capitalization Value, or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases Secured Indebtedness of the Consolidated Businesses and the Borrower’s proportionate share (determined in accordance with GAAP) of Secured Indebtedness of its Minority Holdings, fifty percent (50%) of the Capitalization Value. In addition, neither the Borrower nor any of its Subsidiaries shall incur, directly or purchase indirectly, Indebtedness for borrowed money Indebtednessfrom the General Partner, unless such Indebtedness is unsecured and expressly subordinated to the payment of the Obligations. For purposes of Section 10.1 only, (i) Total Adjusted Outstanding Indebtedness shall be secured adjusted by deducting therefrom an amount equal to the asset subject lesser of (x) Indebtedness that by its terms is scheduled to such additional Capital Leases mature on or acquired asset in connection with before the incurrence date that is 24 months from the date of such calculation (“Maturing Indebtedness, as the case may be”), and (y) in the case of purchase money IndebtednessUnrestricted Cash, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness Capitalization Value shall be evidenced adjusted by promissory notes deducting therefrom Cash and all such notes shall be subject to a first priority Lien pursuant to Cash Equivalents and adding back the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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 caseamount, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided thatif any, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured by which Unrestricted Cash exceeds Maturing Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.0310.1(ii) only, all Obligations outstanding under (i) Secured Indebtedness shall be adjusted by deducting therefrom an amount equal to the Loan Documents will be deemed lesser of (x) Secured Indebtedness that by its terms is scheduled to have been incurred in reliance only mature on or before the exception in clause (a) date that is 24 months from the date of calculation of this Section 7.03. Notwithstanding anything to covenant (“Maturing Secured Indebtedness”), and (y) Unrestricted Cash, and (ii) Capitalization Value shall be adjusted by deducting therefrom Cash and Cash Equivalents and adding back the contrary hereinamount, no Loan Party shall have outstandingif any, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentby which Unrestricted Cash exceeds Maturing Secured Indebtedness.
Appears in 5 contracts
Sources: Credit Agreement (Simon Property Group L P /De/), Credit Agreement (Simon Property Group L P /De/), Credit Agreement (Simon Property Group L P /De/)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations Indebtedness existing on the date hereof and reflected in the most recent balance sheet of the Loan Parties Borrower referred to in Section 3.05 or incurred after the date hereof under credit facilities in effect on the date hereof, and any extensions, renewals, exchanges or replacements of such Indebtedness to the extent (i) the principal amount of such Indebtedness is not increased (except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable fees and expenses incurred in connection with such extension, renewals or replacement), (ii) neither the final maturity nor the weighted average life to maturity of such Indebtedness is decreased, (iii) such Indebtedness, if subordinated to the Obligations, remains so subordinated on terms no less favorable to the Lender and (iv) the original obligors in respect of such Indebtedness remain the only obligors thereon;
(b) Indebtedness created hereunder and under the other Loan Documents;
(bc) Surviving intercompany Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals the Borrower and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable Subsidiaries to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness extent permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetSection 6.04(c);
(d) Indebtedness (including Capital Lease Obligations) of the SBA PPP LoanBorrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets (other than aircraft and aircraft-related equipment purchased by International Lease Finance Corporation and its subsidiaries), and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this Section 6.01(d) shall not exceed $25,000,000 at any time outstanding;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) other Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance assumed in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of Borrower and its Subsidiaries to finance the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion conduct of such convertible notes into Equity Interests of Parent) to business in the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateordinary course; and
(mf) other unsecured Indebtedness of the Borrower or the Subsidiaries; provided that (i) the 2021 Preferred Stock on terms reasonably acceptable proceeds thereof are applied to prepay the Loans as required by Section 2.10(d) and (ii) such Indebtedness shall not mature, and there shall be no scheduled principal payments due under such Indebtedness, prior to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under date that is 30 months after the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentClosing Date.
Appears in 5 contracts
Sources: Credit Agreement, Credit Agreement, Credit Agreement
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness existing on the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on date hereof and set forth in Schedule 7.03(b), but not 6.01 and any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in to the agreements evidencing any extent the principal amount of such Indebtedness as is not increased, neither the same are in effect on final maturity nor the date weighted average life to maturity of this Agreement and (ii) refinancings and extensions of any such Indebtedness is decreased, such Indebtedness, if subordinated to the Obligations, remains so subordinated on terms and conditions thereof are not no less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedLenders, and the average life to maturity thereof is greater than or equal to that original obligors in respect of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted remain the only obligors thereon;
(b) Indebtedness created hereunder and under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromother Loan Documents;
(c) intercompany Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect Borrower and the Subsidiaries to such assetthe extent permitted by Section 6.04(c);
(d) Indebtedness of the SBA PPP LoanBorrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this Section 6.01(d), when combined with the aggregate principal amount of all Capital Lease Obligations and Synthetic Lease Obligations incurred pursuant to Section 6.01(e), shall not exceed $10,000,000 at any time outstanding;
(e) Capital Lease Obligations and Synthetic Lease Obligations in an aggregate principal amount, when combined with the aggregate principal amount of all Indebtedness incurred pursuant to Section 6.01(d), not in respect excess of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes$10,000,000 at any time outstanding;
(f) Indebtedness incurred by any Loan Party Attributable Debt in respect of letters Sale/Leaseback Transactions; provided, however, that the aggregate principal amount of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including all Indebtedness then outstanding and incurred pursuant to this clause (f) does not exceed (i) $6,000,000 in respect of workers compensation claims, health, disability property owned by the Borrower or other employee benefits any Subsidiary on the Closing Date or property, casualty (ii) $6,000,000 in respect of any property acquired by the Borrower or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsany Subsidiary after the Closing Date;
(g) Indebtedness under performance bonds or with respect to workers’ compensation claims, in each case incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(h) Indebtedness incurred by Foreign Subsidiaries in an aggregate principal amount not exceeding $12,000,000 at any time outstanding;
(i) Indebtedness of (i) under the First Lien Credit Agreement and any Loan Party owing refinancings thereof in an aggregate principal amount at any time outstanding not to any other Loan Party exceed the Cap Amount as permitted under and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to as defined in the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral AgentIntercreditor Agreement;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to under the Spanish Subsidized Loans in an aggregate principal amount not exceeding $5,000,000 at any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;time outstanding; and
(k) other unsecured Indebtedness in respect of the convertible notes; provided that, all such Indebtedness Borrower or the Subsidiaries in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than an aggregate principal amount not exceeding $6,000,000 at any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have time outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 5 contracts
Sources: Second Lien Credit Agreement (STR Holdings LLC), Second Lien Credit Agreement (STR Holdings LLC), Second Lien Credit Agreement (STR Holdings LLC)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness existing on the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on date hereof and set forth in Schedule 7.03(b), but not 6.01 and any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in to the agreements evidencing any extent the principal amount of such Indebtedness as is not increased, neither the same are in effect on final maturity nor the date weighted average life to maturity of this Agreement and (ii) refinancings and extensions of any such Indebtedness is decreased, such Indebtedness, if subordinated to the Obligations, remains so subordinated on terms and conditions thereof are not no less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedLenders, and the average life to maturity thereof is greater than or equal to that obligors in respect of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted at the time of such refinancing remain the only obligors thereon;
(b) Indebtedness created hereunder and under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromother Loan Documents;
(c) intercompany Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect Borrower and the Subsidiaries to such assetthe extent permitted by Section 6.04(c);
(d) Indebtedness of the SBA PPP LoanBorrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; PROVIDED that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this Section 6.01(d), when combined with the aggregate principal amount of all Capital Lease Obligations incurred pursuant to Section 6.01(e) shall not exceed $20,000,000 at any time outstanding;
(e) Capital Lease Obligations in an aggregate principal amount, when combined with the aggregate principal amount of all Indebtedness incurred pursuant to Section 6.01(d), not in respect excess of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes$20,000,000 at any time outstanding;
(f) Indebtedness incurred by any Loan Party in under performance bonds or with respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers to workers' compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness in each case incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(g) Melody Permitted Indebtedness;
(h) Indebtedness incurred by Foreign Subsidiaries for working capital in an aggregate principal amount not exceeding $25,000,000 at any time outstanding, up to $10,000,000 of which may be Guaranteed on an unsecured basis by the Borrower and/or one or more Domestic Subsidiaries;
(i) Indebtedness of any Subsidiary that exists at the time such person becomes a Subsidiary and that was not incurred in contemplation of or in connection with the acquisition by the Borrower or a Subsidiary of such person, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(j) Guarantees by the Borrower or any Subsidiary of any Indebtedness permitted under this Section 6.01; provided, however, that (i) any Loan Party owing to any other Loan Party no Indebtedness of Holdings may be Guaranteed under this paragraph (j) and (ii) Indebtedness owed of Foreign Subsidiaries may be Guaranteed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party the Borrower and the Domestic Subsidiaries only to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, provided for in each case paragraph (Ah) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Partiesabove;
(k) Indebtedness in respect of the convertible notesAdditional L/C Facility in an aggregate amount outstanding at any time not to exceed $10,000,000; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;and
(l) other unsecured Indebtedness, provided that such Indebtedness matures of the Borrower or the Subsidiaries in an aggregate principal amount not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have exceeding $30,000,000 at any time outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 3 contracts
Sources: Credit Agreement (Koll Donald M), Credit Agreement (Cb Richard Ellis Services Inc), Credit Agreement (Cb Richard Ellis Services Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02[reserved]; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations[reserved];
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date[reserved]; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 3 contracts
Sources: Senior Secured Credit Agreement (Bright Mountain Media, Inc.), Senior Secured Credit Agreement (Bright Mountain Media, Inc.), Senior Secured Credit Agreement (Bright Mountain Media, Inc.)
Indebtedness. CreateSuch Borrower will not contract, create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(ai) Obligations of Indebtedness incurred pursuant to this Agreement and the Loan Parties under the Loan other Credit Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedaccrued expenses, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services deferred taxes and current operating liabilities (not the result of the borrowing of money) trade accounts payable, in each case incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(iiii) Indebtedness not to exceed $1,000,000 in aggregate principal amount at any one time outstanding in favor of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to such Borrower's Custodian consisting of extensions of credit from the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance Custodian in the ordinary course of business of the Loan Partiesbusiness;
(kiv) Indebtedness in respect of judgments or awards that have been in force for less than the convertible notes; provided thatapplicable period for taking an appeal so long as judgments or awards do not constitute an Event of Default and so long as execution is not levied thereunder or in respect of which such Borrower (A) shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review or (B) shall have obtained a performance bond, all such which performance bond shall, except to the extent permitted by Section 8.01(vi), be unsecured, and Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateperformance bond; and
(mv) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent Indebtedness (other than Indebtedness for borrowed money) arising in its sole discretion. For purposes of determining compliance connection with this Section 7.03, all Obligations outstanding any other transaction permissible under the Loan Documents will be deemed to have been incurred in reliance only on Investment Company Act and such Borrower's investment objectives and fundamental investment restrictions, including, but not limited to, Reverse Repurchase Agreements, mortgage dollar rolls, delayed delivery transactions (provided that the exception in clause assets with respect thereto are segregated), when-issued securities (aprovided that the assets with respect thereto are segregated) of this Section 7.03and loans from other Borrowers or any other Borrower. Notwithstanding anything to the contrary hereincontained in this Agreement, in no Loan Party event shall have outstandingany Borrower contract, create create, incur, assume or incur suffer to exist any Indebtedness owing to any Senior Securities other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to than the Loans and other Obligations in a manner and on terms satisfactory pursuant to the Administrative Agentthis Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Galaxy Fund /De/), Credit Agreement (Galaxy Fund Ii), Credit Agreement (Galaxy Vip Fund)
Indebtedness. Create(a) Irish Holdco will not, and will not permit any Restricted Subsidiary to, incur, assume directly or suffer to exist indirectly, any Indebtedness, except and Irish Holdco will not issue any Disqualified Equity Interests and will not permit any of its Restricted Subsidiaries to issue any shares of Preferred Equity (other than the followingissuance of Preferred Equity by any Restricted Subsidiary to Irish Holdco or another Restricted Subsidiary that is a Loan Party and, without duplication to the extent such issuance constitutes a Permitted Investment hereunder or is otherwise permitted under Section 6.04, the issuance of Preferred Equity by any Restricted Subsidiary that is not a Loan Party to Irish Holdco or another Restricted Subsidiary); provided, however, Irish Holdco will be entitled to incur Indebtedness or issue Disqualified Equity Interests and any Restricted Subsidiary will be entitled to incur Indebtedness or issue Preferred Equity, so long as (which constitutes “Permitted Indebtedness”):
i) no Default or Event of Default shall have occurred and be continuing or would exist immediately after giving effect (aincluding giving effect on a pro forma basis) Obligations to such incurrence or issuance, (ii) such Indebtedness is not scheduled to mature prior to the date that is 91 days after the Latest Maturity Date and (ii) after giving effect to such incurrence or issuance on a pro forma basis for the most recently ended Test Period prior to such incurrence or issuance (or, in the event the proceeds thereof are to be used to finance a Limited Condition Acquisition, prior to the date the definitive agreements for such Limited Condition Acquisition are entered into), the Fixed Charge Coverage Ratio would be at least 2.00 to 1.00 (but excluding, for purposes of such calculation, the proceeds of such Incremental Loans or any other Indebtedness incurred on such date in the calculation of the Loan Parties under Unrestricted Cash); provided, further, that any such Indebtedness of non-Guarantor Subsidiaries, when combined with all Indebtedness incurred pursuant to Section 6.01(b)(xi) hereof, shall not exceed, in the Loan Documentsaggregate, $60,000,000 at any time outstanding;
(b) Surviving Indebtedness listed on Schedule 7.03(bNotwithstanding Section 6.01(a), but not Irish Holdco and its Restricted Subsidiaries will be entitled to incur any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that all of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such following Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;collectively “Permitted Debt”):
(i) Indebtedness of The Secured Obligations (iincluding any Incremental Loans) and any Loan Party owing to any other Loan Party and Credit Agreement Refinancing Indebtedness;
(ii) Indebtedness owed to and held by Irish Holdco or a Restricted Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is as permitted as an Investment pursuant to under Section 7.026.04; provided, that, in each case that (Ai) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right any subsequent issuance or transfer of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement any Equity Interest that results in any such case, is reasonably satisfactory to the Collateral Agent;
Indebtedness being held by a Person other than Irish Holdco or a Restricted Subsidiary and (jii) unsecured any subsequent transfer of such Indebtedness (other than for borrowed moneyto Irish Holdco or a Restricted Subsidiary) that may shall be deemed deemed, in each case, to exist pursuant to any bona fide warranty or contractual service obligations or performance in constitute the ordinary course incurrence of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of by the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided obligor thereon that such Indebtedness matures was not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with permitted by this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.ii));
Appears in 3 contracts
Sources: Credit Agreement (Horizon Therapeutics Public LTD Co), Credit Agreement (Horizon Therapeutics Public LTD Co), Credit Agreement (Horizon Therapeutics Public LTD Co)
Indebtedness. Create(a) The Company will not, and will not permit any Subsidiary to, create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(ai) Obligations of the Loan Parties Indebtedness created under the Loan Documents;
(bii) Surviving Indebtedness listed existing on the date hereof and set forth in Schedule 7.03(b)6.01, but not any and extensions, renewals or and replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if that do not increase the terms outstanding principal amount thereof;
(iii) Indebtedness incurred by the Subsidiaries in connection with broker-dealer and conditions thereof are not less favorable related underwriting and financing activities;
(iv) Indebtedness incurred by the Subsidiaries in connection with ordinary course investment activity;
(v) Indebtedness of any Subsidiary assumed in connection with the acquisition of any assets or secured by a Lien on any assets prior to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedacquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the average life to maturity thereof is greater than or equal to outstanding principal amount thereof; provided that the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed $25,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary after the date hereof;
(vii) Indebtedness in respect of interest rate and currency Swap Contracts entered into in the ordinary course of business for non-speculative hedging purposes and not as financing;
(viii) other Indebtedness of Subsidiaries in an aggregate principal amount not exceeding $25,000,000 at any time outstanding; and
(ix) other unsecured Indebtedness, provided that each of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above following conditions shall not have been satisfied:
(A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any no Default or Event of Default has shall have occurred and is be continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (xB) in the case of additional Capital Leases any such Indebtedness of the Company which is a credit facility (whether revolving or purchase money Indebtednessterm) evidenced by a loan agreement, credit agreement or similar document or promissory note, the terms and conditions of the documents to be entered into in connection therewith shall not contain restrictions or conditions (including, without limitation, representations and warranties, covenants or events of default) that are materially more restrictive than the corresponding restrictions and conditions, or pricing that is higher for the remaining term of this Agreement than the pricing, set forth in the Loan Documents, unless the Company concurrently notifies the Administrative Agent thereof and incorporates herein such more restrictive terms or higher pricing; and
(C) at the time of the execution of the documents pursuant to which such Indebtedness is to be incurred, the Company shall have delivered to the Administrative Agent, an officer’s certificate signed by a Financial Officer certifying that each of the conditions required to be satisfied in order to incur such Indebtedness in accordance with this Section 6.01(a)(ix)shall have been satisfied and the Company shall be secured by in pro forma compliance with the asset subject financial covenant set forth in Section 6.06 through the Maturity Date after giving pro forma effect to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in incurrence. In the case of purchase money Indebtednessclause (ix)(B) above, if the Administrative Agent at the time so elects by notice to the Company and the Lenders, the incorporation of more restrictive terms or higher pricing shall constitute not less than 75% be deemed to occur automatically without any further action or the execution of any additional document by any of the aggregate consideration paid with respect parties to this Agreement. If the Administrative Agent does not elect to effect such asset;an automatic incorporation, the Administrative Agent shall promptly tender to the Company for execution by it an amendment (executed by the Administrative Agent) incorporating such more restrictive terms or higher pricing and shall promptly deliver a copy of such amendment to the Lenders.
(db) No Credit Party (other than the SBA PPP Loan;
(eCompany) will create, incur, assume or permit to exist any Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
except (i) Indebtedness of (i) any created under the Loan Party owing to any other Loan Party and Documents, (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to exceed $50,000,000 in the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; providedaggregate for all Credit Parties (other than the Company), that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(jiii) unsecured Indebtedness (with a term of no more than 60 days incurred by a Credit Party other than the Company as bridge financing for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance equity investments in the ordinary course private equity fund of business of which such Credit Party is the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided thatgeneral partner, all if such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of bridge financing is guaranteed by such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in private equity fund and/or its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentlimited partners.
Appears in 3 contracts
Sources: Credit Agreement (KKR & Co. L.P.), Credit Agreement (KKR & Co. L.P.), Credit Agreement (KKR & Co. L.P.)
Indebtedness. CreateThe Borrower will not, without the Lender’s prior written consent, and will not permit any of its Subsidiaries to, create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):other than:
(a) Obligations Indebtedness in respect of the Loan Parties under the Loan DocumentsObligations;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements existing as of such the Closing Date which is identified in Item 8.2 of the Disclosure Schedule;
(c) unsecured Indebtedness except (i) renewals and extensions expressly provided for incurred in the agreements evidencing any such Indebtedness ordinary course of business of the Borrower and the Guarantors (including open accounts extended by suppliers on normal trade terms in connection with purchases of goods and services which are not overdue for a period of more than ninety (90) days or, if overdue for more than ninety (90) days, as the same are to which a dispute exists and adequate reserves in effect conformity with GAAP have been established on the date books of this Agreement the Borrower or such Guarantor) and (ii) refinancings and extensions in respect of any such performance, surety, statutory, appeal or similar bonds provided in the ordinary course of business, but excluding (in each case), Indebtedness if incurred through the borrowing of money or Contingent Liabilities in respect thereof;
(d) unsecured Indebtedness not to exceed Two Million Dollars ($2,000,000) in the aggregate, which is convertible into equity upon terms and conditions thereof are not less favorable reasonably acceptable to the obligor thereon or Lender;
(e) Indebtedness of any Guarantor owing to the Lenders than Borrower or any other Guarantor, which Indebtedness shall be evidenced by one or more promissory notes in form and substance satisfactory to the Indebtedness being refinanced or extendedLender, duly executed and delivered in pledge to the Lender pursuant to a Loan Document, and shall not be forgiven or otherwise discharged for any consideration other than payment in full or in part in cash (provided, that only the average life to maturity thereof is greater than or equal to that amount repaid in part shall be discharged); and
(f) Indebtedness of the Borrower and the Guarantors in respect of purchase money Indebtedness being refinanced or extendedand Capitalized Lease Liabilities which does not exceed $5,000,000 in the aggregate at any time outstanding; provided, such however, that no Indebtedness otherwise permitted under the immediately preceding by clause (id) shall be assumed or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in otherwise incurred if a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is then continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 3 contracts
Sources: Senior Secured Credit Agreement (Surebeam Corp), Senior Secured Credit Agreement (Titan Corp), Senior Secured Credit Agreement (Surebeam Corp)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Initial Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 3 contracts
Sources: Senior Secured Credit Agreement (Bright Mountain Media, Inc.), Senior Secured Credit Agreement (Bright Mountain Media, Inc.), Senior Secured Credit Agreement (Bright Mountain Media, Inc.)
Indebtedness. CreateThe Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, except other than, without duplication, the following, without duplication (which constitutes “Permitted Indebtedness”)::
(a) Obligations Indebtedness in respect of the Loan Parties under the Loan DocumentsCredit Extensions and other Obligations;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not incurred by the Borrower or any extensions, renewals or replacements of such Indebtedness except its Subsidiaries (i) renewals and extensions expressly provided owing to any Person providing financing for in the agreements evidencing acquisition of any assets permitted to be acquired pursuant to Section 7.2.7 to finance its acquisition of such Indebtedness as the same are in effect on the date of this Agreement and assets, (ii) refinancings and extensions in respect of any such Indebtedness if the terms and conditions thereof are not less favorable Capitalized Lease Liabilities (but only to the obligor thereon or extent otherwise permitted by Section 7.2.7) and (iii) from time to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extendedtime for general corporate purposes; provided, such that the maximum aggregate amount of all Indebtedness permitted under the immediately preceding this clause (ib) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to at any time after the Indebtedness being extended, renewed or refinanced, (B) Restatement Effective Date exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom$15,000,000;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% Hedging Obligations of the aggregate consideration paid with Borrower or any of its Subsidiaries in respect to such assetof the Loans;
(d) intercompany Indebtedness of (x) any Subsidiary of the SBA PPP LoanBorrower owing to the Borrower or any of its Subsidiaries or (y) the Borrower to any of its Subsidiaries, which Indebtedness
(i) shall be evidenced by one or more promissory notes in form and substance satisfactory to the Agents which (except in the case of any such notes held by a Non-U.S. Subsidiary) have been duly executed and delivered to (and endorsed to the order of) the Administrative Agent in pledge pursuant to a Pledge Agreement; and
(ii) shall not be forgiven or otherwise discharged for any consideration other than payment (Dollar for Dollar) in cash unless the Agents otherwise consent;
(e) Indebtedness evidenced by the Senior Notes in respect of Swap Contracts designed an aggregate principal amount not to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposesexceed $130,000,000;
(f) Indebtedness incurred by any Loan Party outstanding on the Restatement Effective Date and identified in respect of letters of creditSchedule 7.2.2(f) ("Ongoing Indebtedness") hereto and refinancings, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;refundings and replacements thereof; and
(g) unsecured Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing Borrower or any of money) incurred its Subsidiaries in an aggregate principal amount which, together with the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02clause (b) hereto, shall not exceed $20,000,000 at any time outstanding; provided, thathowever, in each case that no Indebtedness otherwise permitted by clause (Ab), (d) (as such clause (d) relates to loans made by the Borrower to Subsidiaries which are not party to the Subsidiary Guaranty) or (g) may be incurred if, after giving effect to the incurrence thereof, any Default shall have occurred and be continuing, and provided, further, however, that all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception type described in clause (ad)(y) of this Section 7.03. Notwithstanding anything above that is owed to Subsidiaries which are not party to the contrary hereinSubsidiary Guaranty, no Loan Party shall have outstandingbe subordinated, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated in writing, to the Loans and other Obligations in a manner and on upon terms satisfactory to the Administrative AgentAgents.
Appears in 2 contracts
Sources: Credit Agreement (Brand Scaffold Services Inc), Credit Agreement (Brand Scaffold Services Inc)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(ai) Obligations Indebtedness existing on the date hereof that is set forth in Schedule 6.01;
(ii) Indebtedness the proceeds of which are used to refinance any Indebtedness permitted under clause (i) above so long as (A) the obligor or obligors in respect of such refinancing Indebtedness are the same as those in respect of the Loan Parties Indebtedness being refinanced, (B) the principal amount of such refinancing Indebtedness does not exceed that of the Indebtedness being refinanced and (C) in the case of any Indebtedness being refinanced which is subordinated in whole or in part to the obligations of the Borrower hereunder, such refinancing Indebtedness shall be subordinated to such obligations to at least the same extent as the Indebtedness being refinanced, shall mature or be required to be prepaid, redeemed or repurchased no earlier than the date that is 90 days after the Maturity Date and shall be on terms no less favorable to the Lenders than the Indebtedness being refinanced, and the Borrower shall have notified the Administrative Agent of such refinancing and furnished to the Administrative Agent a copy of each agreement or instrument governing the refinancing Indebtedness;
(iii) Indebtedness under the Loan Documents;
(biv) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements Letters of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred Credit entered into in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPan aggregate stated amount not to exceed $75,000,000;
(hv) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party repurchase agreements in the ordinary course of business;
an aggregate amount not to exceed $150,000,000, provided that (i) Indebtedness of (i) any Loan Party owing all proceeds therefrom are used only to any other Loan Party pay amounts outstanding under this Agreement and (ii) Indebtedness owed by a Subsidiary that is such repurchase agreements are entered into not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment more than one week prior 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateamounts outstanding hereunder; and
(mvi) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent other Indebtedness in its sole discretion. For purposes an aggregate principal amount not in excess of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent$50,000,000.
Appears in 2 contracts
Sources: Senior Secured Term Loan Agreement (McDermott International Inc), Senior Secured Term Loan Agreement (McDermott International Inc)
Indebtedness. Create(a) Incur, incurcreate, assume or suffer permit to exist exist, directly or indirectly, any Indebtedness.
(b) Notwithstanding the foregoing, except nothing in the following, without duplication (which constitutes “Permitted Indebtedness”):
clause (a) Obligations of this Section 6.01 will prohibit any of the Loan Parties following:
(i) Indebtedness incurred under this Agreement and the other Loan Documents;
(bii) Surviving Indebtedness listed outstanding as of the Closing Date set forth on Schedule 7.03(b)6.01 and any Indebtedness extending the maturity of, but not or refinancing, in whole or in part, any extensions, renewals or replacements such Indebtedness and guarantees of such Indebtedness except or the extension or refinancing of such Indebtedness; provided that (iA) renewals and extensions expressly provided for the amount of such extending or refinancing Indebtedness does not result in an increase in the agreements evidencing aggregate principal or facility amount thereof outstanding (or, in the case of revolving Indebtedness, the committed amount thereof) (plus the amount of any premium paid in respect of such Indebtedness in connection with any such Indebtedness as extension or refinancing and plus the same are amount of reasonable expenses incurred by Borrower and its Subsidiaries in effect on the date of this Agreement and connection therewith), (iiB) refinancings and extensions of any such Indebtedness (if the terms and conditions thereof are it is term debt) does not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the have a weighted average life to maturity thereof that is greater less than or equal the weighted average life to that maturity of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed extended or refinanced, (BC) exceed in such Indebtedness (if it is term debt) does not have a principal amount final maturity earlier than the final maturity of the Indebtedness being renewed, extended or refinancedrefinanced and (D) the direct and contingent obligors therefor shall not be changed (unless any contingent obligor is released), as a result of or (C) be incurred, created in connection with such extension or assumed if any Default or Event of Default has occurred and is continuing or would result therefromrefinancing;
(ciii) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided under Hedging Obligations that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts are designed to hedge protect against fluctuations in interest rates, foreign currency exchange rates or commodities pricing risks incurred commodity prices, in the ordinary course of business and each case not entered into for speculative purposes;
(fiv) Intercompany Indebtedness between Companies;
(v) To the extent it constitutes Indebtedness, Indebtedness incurred by Holdings or any Loan Party in respect of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guaranties or letters of credit, bank surety bonds or performance bonds securing the performance of Holdings or any such Subsidiary pursuant to such agreements, in connection with acquisitions permitted by Section 6.04(g) or Transfers permitted by Section 6.03; provided that, in respect of any Indebtedness incurred hereunder pursuant to agreements providing for indemnification in connection with Transfers permitted by Section 6.03, such Indebtedness shall not exceed the amount of net cash proceeds received from such Transfers;
(vi) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal, completion guarantees, bankers’ acceptancesexport or import indemnities, warehouse receipts customs and revenue bonds or similar instruments instruments, workers’ compensation claims, self-insurance obligations and bankers acceptances issued or created for the account of any Company in the ordinary course of business, including in guarantees or obligations of any Company with respect to letters of workers credit supporting such bid, performance or surety bonds, workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance obligations and bankers acceptances (in each case other than for an obligation for money borrowed) or other Indebtedness with respect to reimbursement-type similar obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(ivii) Contingent Obligations of Holdings, Opco or any Subsidiary thereof in respect of Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is otherwise permitted as an Investment pursuant to under this Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent6.01;
(jviii) unsecured Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (other than for borrowed moneyexcept in the case of daylight overdrafts) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance drawn against insufficient funds in the ordinary course of business business; provided, however, that such Indebtedness is extinguished within five Business Days of the Loan Partiesincurrence;
(kix) Indebtedness arising in respect connection with endorsement of instruments for deposit in the convertible notes; provided that, all such ordinary course of business;
(x) Other Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than Debt for Borrowed Money) in an aggregate principal amount not to exceed $10 million at any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligationstime outstanding;
(lxi) other unsecured Indebtedness, provided Capitalized Leases and Indebtedness secured by Liens that attach only to the property being financed pursuant to such Indebtedness matures and do not less than encumber any other property of any Company in an aggregate principal amount not to exceed $10 million at any time outstanding;
(xii) Indebtedness incurred in connection with the financing of insurance premiums in an amount not to exceed the annual premiums in respect thereof at any one hundred eighty time outstanding;
(180xiii) days following the Last Out Maturity DatePermitted Borrower Subordinated Indebtedness; and
(mxiv) Other Debt for Borrowed Money issued to or held by Persons who are not Affiliates of any of the 2021 Preferred Stock on terms reasonably acceptable Companies, so long as after giving effect to the Administrative Agent in its sole discretion. For purposes incurrence of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have such Indebtedness (as if such Indebtedness had been incurred in reliance only on the exception in clause (a) first day of this Section 7.03. Notwithstanding anything to the contrary hereinmost recently completed Measurement Period), no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentLeverage Ratio would be less than 2.00:1.00.
Appears in 2 contracts
Sources: Credit Agreement (Express Parent LLC), Credit Agreement (Express Parent LLC)
Indebtedness. CreateThe Borrower will not, and will not permit any Subsidiary to, create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties under the Loan DocumentsObligations;
(b) Surviving Indebtedness listed 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 Schedule 7.03(b)any such assets prior to the acquisition thereof, but not any and extensions, renewals or and replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if that do not increase the terms outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within ninety (90) days after such acquisition or the completion of such construction or improvement, (ii) the aggregate principal amount of Indebtedness permitted by this clause (b) shall not exceed the greater of (A) $200,000,000 and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended(B) 2.00% of Consolidated Net Tangible Assets, and the average life to maturity thereof is greater than or equal to that determined on a pro forma basis as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements were required to be delivered pursuant to Section 5.01, at any time outstanding and (iii) with respect to Indebtedness being refinanced incurred by the Borrower pursuant to this clause (b), (x) such Indebtedness shall be of the type described in clauses (a), (b), (c) or extended; provided(h) of the definition of “Indebtedness” or, if solely in connection with any Capital Lease Obligations, such Indebtedness permitted under shall be of the immediately preceding clause type described in clauses (id) or (iie) above of the definition of “Indebtedness” (and for the avoidance of doubt, no Guarantee by the Borrower of Indebtedness of any other Person shall be permitted under this clause (b)) and (y) the aggregate principal amount of all such Indebtedness shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if $50,000,000 at any Default or Event of Default has occurred and is continuing or would result therefromtime outstanding;
(c) so long as the Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, Incurrence Conditions shall be secured by satisfied at the asset subject to such additional Capital Leases or acquired asset in connection with the time of incurrence of such Indebtedness, as Indebtedness of a Subsidiary of the case may be, Borrower incurred pursuant to Permitted Receivables Facilities; provided that the aggregate principal amount of Attributable Receivables Indebtedness thereunder shall not exceed the greater of (i) $500,000,000 and (yii) in the case of purchase money Indebtedness, shall constitute not less than 755.00% of Consolidated Net Tangible Assets, determined on a pro forma basis as of the aggregate consideration paid with respect last day of the most recently ended fiscal quarter of the Borrower for which financial statements were required to such assetbe delivered pursuant to Section 5.01, at any time outstanding;
(d) Indebtedness existing on the SBA PPP Loan;
date hereof and set forth on Schedule 6.01 and extensions, renewals, refinanced and replacements of any such Indebtedness, provided that any such extended, renewed, refinanced or replaced Indebtedness shall not increase the principal amount (e) Indebtedness in respect of Swap Contracts designed to hedge against interest ratesand, foreign exchange rates or commodities pricing risks incurred in the ordinary course case of business Indebtedness consisting, in whole or in part, of unused revolving commitments, the applicable amount thereof) except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, any Liens securing such Indebtedness shall not for speculative purposes;
(f) Indebtedness incurred by be extended to any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result additional property of the borrowing Borrower or any Subsidiary, none of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by Borrower or any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary originally obligated with respect to any Loan Party to repayment of the extent such original Indebtedness is permitted as an Investment pursuant required to Section 7.02; providedbecome obligated with respect to such Indebtedness, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes not shorten the average weighted maturity of the original Indebtedness and all such notes shall be subject to a first priority Lien pursuant to if the Collateral Documents and (B) all such original Indebtedness shall be unsecured and was subordinated in right of payment to the payment in full Obligations, then the terms and conditions of the Obligations pursuant such Indebtedness must include subordination terms and conditions that are at least as favorable to the terms of Administrative Agent and the Lenders as those that were applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agentoriginal Indebtedness;
(je) unsecured so long as the Indebtedness (other than for borrowed money) that may Incurrence Conditions shall be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in satisfied at the ordinary course time of business incurrence of such Indebtedness, additional Indebtedness of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured Borrower and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateits Subsidiaries; and
(mf) the 2021 Preferred Stock on terms reasonably acceptable letters of credit, letters of guaranty, bankers’ acceptances, surety bonds and other similar bond obligations; provided that with respect to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been any such Indebtedness incurred in reliance only on any transaction or series of related transactions having an aggregate value in excess of $50,000,000 the exception in clause (a) Indebtedness Incurrence Conditions shall be satisfied at the time of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee incurrence of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentIndebtedness.
Appears in 2 contracts
Sources: Credit Agreement (Ugi Corp /Pa/), Credit Agreement (Ugi Corp /Pa/)
Indebtedness. CreateIncur, incurcreate, assume or suffer to exist or otherwise become liable in respect of any Indebtedness, except that the following, without duplication (which constitutes “Permitted Indebtedness”):following shall be permitted:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness listed existing on the Effective Date and set forth in Schedule 7.03(b), but not any 6.01 and extensions, renewals or and replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include with Indebtedness of an obligor a similar type that was does not an obligor with respect to increase the Indebtedness being extended, renewed or refinanced, (B) exceed in a outstanding principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromthereof;
(c) Indebtedness with respect to Capital Leases of the Tower Companies existing on the Effective Date consisting of (i) the Trust Preferred Securities, and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that extensions, renewals and replacements of any such Indebtedness (x) in with Indebtedness of a similar type that does not increase the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, outstanding principal amount thereof and (yii) in the case of purchase money Indebtedness, shall constitute not less than 75% of Convertible Notes until the aggregate consideration paid with respect to such assetmaturity date thereof;
(d) Indebtedness in respect of Capital Lease Obligations and Purchase Money Obligations for fixed or capital assets within the SBA PPP Loanlimitations set forth in Section 6.02(d), and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided, however, that the aggregate principal amount of all Indebtedness permitted by this Section 6.01(d) shall not exceed $15,000,000 at any one time outstanding;
(e) Indebtedness in respect of the Borrower or any Regulated Insurance Company under Swap Contracts designed Obligations to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposesextent permitted by Section 6.06;
(f) Indebtedness incurred constituting Investments permitted by any Loan Party in respect Section 6.04(d);
(g) Indebtedness arising from the honoring by a bank or other financial institution of letters of credita check, bank guarantees, bankers’ acceptances, warehouse receipts draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within 5 Business Days of its incurrence;
(i) Indebtedness resulting from the endorsements of instruments issued or created for deposit in the ordinary course of business, including (ii) to the extent constituting Indebtedness, obligations in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
purchasing card and credit card arrangements and (giii) Indebtedness incurred by of the Borrower or any Loan Party Subsidiary in respect of accounts payable to trade creditors for goods performance bonds, appeal bonds, surety bonds and services and current operating liabilities (not the result of the borrowing of money) similar obligations, in each case, incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) any repurchase obligations of the Borrower or any Regulated Insurance Company under any Repurchase Agreement and any Repurchase Liability of the Borrower or any Regulated Insurance Company; provided, however, that the aggregate amount of all such obligations and Repurchase Liabilities permitted by this Section 6.01(i) shall not exceed $150,000,000 at any time outstanding;
(j) Indebtedness which represents an extension, refinancing or renewal of any of the Indebtedness described in Section 6.01(k) or 6.01(l); provided that, (i) any Loan Party owing to any other Loan Party and the aggregate principal amount of such Indebtedness is not greater than the aggregate principal amount of the Indebtedness so extended, refinanced or renewed, (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent interest rate of such Indebtedness is permitted not higher than the interest rate of the Indebtedness so extended, refinanced or renewed (other than an increase of such interest rate to the then current market interest rate for such type of Indebtedness, as an Investment pursuant to Section 7.02; providedapplicable), that, in each case (Aiii) all such Indebtedness shall may be evidenced secured by promissory notes and all the Liens that secured the Indebtedness so extended, refinanced or renewed; provided such notes shall be subject Liens do not extend to any additional property of the Borrower or any Subsidiary, (iv) no Subsidiary is required to become obligated with respect thereto unless previously obligated on such refinanced Indebtedness, (v) such Indebtedness does not result in a first priority Lien pursuant shortening of the maturity of the Indebtedness so extended, refinanced or renewed, (vi) the terms of any such Indebtedness are not less favorable to the Collateral Documents obligor thereunder than the original terms of the Indebtedness so extended, refinanced or renewed and (Bvii) all such if the Indebtedness shall be unsecured and that is extended, refinanced or renewed was subordinated in right of payment to the payment in full Obligations, then the terms and conditions of the Obligations pursuant extension, refinancing or renewal Indebtedness must include subordination terms and conditions that are at least as favorable to the terms of the Lenders as those that were applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty so extended, refinanced or contractual service obligations or performance in the ordinary course of business of the Loan Partiesrenewed;
(k) Indebtedness of a Person that becomes a Subsidiary or Indebtedness attaching to assets that are acquired by the Borrower or any of its Subsidiaries, in respect each case after the Effective Date in connection with a Permitted Acquisition, and any extensions, refinancings and renewals of the convertible notes; provided that, all such Indebtedness in accordance with Section 6.01(j); provided that (i) such Indebtedness existed at the time such Person became a Subsidiary or at the time such assets were acquired and, in each case, was not created in contemplation of or in connection with such Permitted Acquisition, (ii) such Indebtedness is not guaranteed in any respect of by the convertible notes shall be unsecured and subordinated in right of payment to the payment in full Borrower or any Subsidiary (other than by any payment as such Person that so becomes a result Subsidiary), (iii) no Default or Event of Default has occurred and is continuing prior to the assumption of such Indebtedness or would arise after giving effect (including giving effect on a pro forma basis) thereto and (iv) the sum of the conversion aggregate principal amount of such convertible notes into Equity Interests of ParentIndebtedness permitted by this clause (k) to the Obligationsand clause (l) below shall not exceed $10,000,000 at any time outstanding;
(l) other unsecured IndebtednessIndebtedness in respect of obligations to make Deferred Acquisition Payments, and extensions, refinancings and renewals of such Indebtedness in accordance with Section 6.01(j); provided that such the sum of the aggregate amount of Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with permitted by this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (al) and clause (k) above shall not exceed $10,000,000 at any time outstanding; provided further that, if the aggregate amount of this Section 7.03. Notwithstanding anything all such obligations to the contrary hereinmake Deferred Acquisition Payments exceeds $5,000,000 at any one time, no Loan Party then such excess amount shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly be subordinated to the Loans and other Obligations in a manner and on terms and conditions, and pursuant to documentation, reasonably satisfactory to the Administrative Agent; provided, further, that any payments in respect of such Indebtedness shall be subject to Sections 6.07(b) and 6.13(a)(iii);
(m) Guarantees by any Subsidiary of the Borrower in respect of Indebtedness otherwise permitted hereunder of the Borrower or any other Subsidiary of the Borrower; provided, that if the Indebtedness that is being guaranteed is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations; provided further that the aggregate principal amount of Guarantees permitted by this clause (m) shall not exceed $5,000,000 at any time outstanding;
(n) Indebtedness owed to AmTrust or National General pursuant to the Retrocession Agreement; and
(o) other unsecured Indebtedness of the Borrower in an aggregate principal amount not exceeding $5,000,000 at any time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (National General Holdings Corp.), Credit Agreement (Amtrust Financial Services, Inc.)
Indebtedness. CreateThe Company shall not create, incur, assume or assume, suffer to exist or otherwise be or become liable with respect to any Indebtedness, Indebtedness except the followingfollowing (collectively, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations Indebtedness incurred in respect of the Loan Parties under the Loan DocumentsInitial Notes;
(b) Surviving Indebtedness listed on Schedule 7.03(b)incurred by the Company under a credit agreement, but revolving loan, note purchase agreement, supplement or similar document with one or more banks or institutional lenders not any extensionsan Affiliate of the Company, renewals or replacements of such Indebtedness except which satisfies the following: (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and at any one time outstanding does not exceed $10,000,000, (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any no Default or Event of Default has occurred and is continuing then exists or would result therefromexist after giving effect to such Indebtedness and (iii) such Indebtedness is secured on a pari passu basis with the Collateral pursuant to the terms of the Collateral Agency Agreement which the lender(s) or an agent on their behalf has acceded to;
(c) unsecured Indebtedness with respect to Capital Leases and purchase money Indebtedness of the Company (other than Intercompany Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $5,000,000;
(d) 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 $10,000,000 in the aggregate at any one time outstanding;
(e) unsecured Indebtedness of the Company in an aggregate outstanding principal amount not to exceed $1,000,000 15,000,000 owing to any Affiliate of the Company so long as such Indebtedness is subordinated in right of payment to the aggregate at Notes in accordance with the Terms of Subordination (“Intercompany Indebtedness”);
(f) Permitted Refinancing Indebtedness to refinance all or any time outstandingportion 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 Company to create, incur, assume, suffer to exist or otherwise be or become liable with respect to any Indebtedness (xto the extent such capacity is limited hereunder);
(g) any other Indebtedness incurred by the Company which Indebtedness satisfies the Incurrence Conditions;
(h) Indebtedness listed on Schedule 10.5(h); and
(i) Performance Guarantees supporting the Project; provided, that the terms of any such Performance Guarantee shall be generally consistent with past practice of the Company and its Affiliates and in the case of additional Capital Leases or purchase money Indebtedness, no event shall any such Performance Guarantee be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetCollateral;
(dj) the SBA PPP LoanIndebtedness under any Permitted Commodity Hedge and Power Sales Agreement or other Swap Agreement entered into in accordance with Section 10.13;
(ek) Indebtedness to the extent constituting Indebtedness, obligations in respect of Swap Contracts designed performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees, indemnification obligations, obligations to hedge against interest ratespay insurance premiums, foreign exchange rates or commodities pricing risks 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 speculative purposesBorrowed Money;
(fl) Indebtedness incurred by any Loan Party in respect of letters any bankers’ acceptance, letter of credit, bank guarantees, bankers’ acceptances, warehouse receipts receipt or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred facilities entered into in the ordinary course of business and not in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPrespect of Swap Agreements;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(km) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts. To the convertible notes; provided thatextent that the creation, all incurrence or assumption of any Indebtedness could be attributable to more than one subsection of this Section 10.5, the Company may allocate such Indebtedness to any one or more of such subsections and in no event shall the same portion of Indebtedness be deemed to utilize or be attributable to more than one subsection. For the avoidance of doubt, any Indebtedness permitted to be incurred by the Company, as the case may be, under a specific subsection of this Section 10.5 and any Guarantee in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following which is also permitted to be incurred by the Last Out Maturity Date; and
(m) Company, as the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03case may be, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) same subsection of this Section 7.03. Notwithstanding anything to 10.5 shall not count as two separate amounts of Indebtedness for purposes of calculating compliance with the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless limitations set forth in such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentsubsection.
Appears in 2 contracts
Sources: Note Purchase Agreement (REV Renewables, Inc.), Note Purchase Agreement (REV Renewables, Inc.)
Indebtedness. CreateWith respect to a Person, incurat the time of computation thereof, assume or suffer to exist any Indebtedness, except all of the following, following (without duplication (which constitutes “Permitted Indebtedness”):
duplication): (a) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements all obligations of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness Person in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks money borrowed (other than trade debt incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that which is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less more than one hundred eighty (180) days following past due); (b) all obligations of such Person, whether or not for money borrowed (i) represented by notes payable, or drafts accepted, in each case representing extensions of credit, (ii) evidenced by bonds, debentures, notes or similar instruments, or (iii) constituting purchase money indebtedness, conditional sales contracts, title retention debt instruments or other similar instruments, upon which interest charges are customarily paid or that are issued or assumed as full or partial payment for property or services rendered; (c) obligations of such Person as a lessee or obligor representing the Last Out Maturity Dateprincipal portion under a Capitalized Lease; and
(md) all reimbursement obligations of such Person under any letters of credit or acceptances (whether or not the 2021 Preferred Stock on terms reasonably acceptable same have been presented for payment), but excluding any such reimbursement obligations to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to extent such obligations have been incurred cash collateralized; (e) Off-Balance Sheet Obligations; (f) all obligations of such Person in reliance respect of any purchase obligation, repurchase obligation, takeout commitment or forward equity commitment, in each case evidenced by a binding agreement (excluding (i) any such obligation to the extent the obligation can be solely satisfied by the issuance of Equity Interests and (ii) any purchases of Real Estate, inventory or equipment in the ordinary course of business of such Person); (g) net obligations under any Derivatives Contract not entered into as a hedge against existing Indebtedness, in an amount equal to the Derivatives Termination Value thereof; (h) all Indebtedness of other Persons which such Person has guaranteed or is otherwise recourse to such Person (except for guaranties of Non-Recourse Exclusions until a claim is made with respect thereto, and then shall be included only to the extent of the amount of such claim), including liability of a general partner in respect of liabilities of a partnership in which it is a general partner which would constitute “Indebtedness” hereunder, any obligation to supply funds to or in any manner to invest directly or indirectly in a Person, to maintain working capital or equity capital of another Person or otherwise to maintain net worth, solvency or other financial condition of another Person, to purchase indebtedness, or to assure the owner of indebtedness against loss, including, without limitation, through an agreement to purchase property, securities, goods, supplies or services for the purpose of enabling the debtor to make payment of the indebtedness held by such owner or otherwise; (i) all Indebtedness of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property or assets owned by such Person, even though such Person has not assumed or become liable for the exception payment of such Indebtedness or other payment obligation; and (j) such Person’s pro rata share of the Indebtedness (based upon its Equity Percentage in clause (asuch Unconsolidated Affiliate) of this Section 7.03any Unconsolidated Affiliate of such Person. Notwithstanding anything “Indebtedness” shall be adjusted to remove any impact of intangibles pursuant to FAS 141R, as issued by the Financial Accounting Standards Board in December of 2007. Indebtedness of any Person shall include Indebtedness of any partnership or joint venture in which such Person is a general partner or joint venture only to the contrary hereinextent of such Person’s pro rata share of the ownership of such partnership or joint venture (except if such Indebtedness, no Loan Party shall have outstandingor portion thereof, create or incur any Indebtedness owing is recourse to any other Loan Party or any Affiliate or employee such Person, in which case the greater of any Loan Party unless such Person’s pro rata portion of such Indebtedness is expressly permitted hereunder and expressly subordinated to or the Loans and other Obligations in a manner and on terms satisfactory to amount of the Administrative Agentrecourse portion of the Indebtedness, shall be included as Indebtedness of such Person).
Appears in 2 contracts
Sources: Credit Agreement (QualityTech, LP), Credit Agreement (QTS Realty Trust, Inc.)
Indebtedness. CreateThe Loan Parties will not permit any Consolidated Party to contract, create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness arising under this Agreement and the Loan Parties under the other Loan Documents;
(b) Surviving Indebtedness listed on of the Borrowers and their Subsidiaries set forth in Schedule 7.03(b)7.01 (and renewals, but not any extensions, renewals or replacements refinancings and extensions thereof; provided that (x) the amount of such Indebtedness except is not increased at the time of such renewal, refinancing or extension, (iy) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof of such renewal, refinancing or extension are materially not less favorable to such Borrowers or Subsidiary, taken as a whole and (z) the obligor thereon maturity date of such renewal, refinancing or to extension shall be a date after the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromMaturity Date);
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness (including obligations in an amount respect of Capital Leases or Synthetic Lease Obligations) hereafter incurred by the Borrowers or any of its Subsidiaries to finance the purchase of fixed assets provided that (i) the total of all such Indebtedness for all such Persons taken together along with all Indebtedness incurred pursuant to Section 7.01(i) shall not to exceed $1,000,000 in the aggregate 150,000,000 at any one time outstanding; provided that any (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (xiii) in the case of additional Capital Leases or purchase money Indebtedness, no such Indebtedness shall be secured by refinanced for a principal amount in excess of the asset subject to such additional Capital Leases or acquired asset in connection with principal balance outstanding thereon at the incurrence time of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetrefinancing;
(d) obligations (contingent or otherwise) of the SBA PPP Loan;
Borrowers or any Subsidiary existing or arising under any Swap Contracts, provided that such obligations are (eor were) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with purchases, sales, 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 speculative purposespurposes of speculation or taking a “market view;
(e) intercompany Indebtedness and Guarantees permitted under Section 7.06;
(f) in addition to the Indebtedness otherwise permitted by this Section 7.01, other Indebtedness incurred by the Borrowers or any Loan Party in respect of letters of credittheir Subsidiaries after the Closing Date, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
provided that (i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment (ii) the Borrowers shall have delivered to the payment in full of the Obligations pursuant Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to the terms incurrence of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory Indebtedness and to the Collateral Agentconcurrent retirement of any other Indebtedness of any Consolidated Party, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10(a)-(b);
(jg) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties[reserved];
(kh) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date[reserved]; and
(mi) in addition to the Indebtedness otherwise permitted by this Section 7.01, other secured Indebtedness incurred by the Borrowers or any of their Subsidiaries after the Closing Date, provided that (i) the 2021 Preferred Stock on terms reasonably acceptable Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to the incurrence of such Indebtedness and to the concurrent retirement of any other Indebtedness of any Consolidated Party, the Loan Parties would be in its sole discretion. For purposes of determining compliance with this the financial covenants set forth in Section 7.03, 6.10(a) and (b) and (ii) the aggregate principal amount of all Obligations outstanding under the Loan Documents will be deemed secured Indebtedness taken together along with all Indebtedness pursuant to have been incurred in reliance only on the exception in clause (aSection 7.01(c) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentnot exceed $150,000,000.
Appears in 2 contracts
Sources: Credit Agreement (Potlatchdeltic Corp), Credit Agreement (Potlatchdeltic Corp)
Indebtedness. Create(i) Neither Holdings, incurexcept with respect to subsections (a) and (e) below, assume (ii) nor Borrower, nor any of Borrower’s Subsidiaries, will create, incur or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties under the Loan DocumentsObligations;
(b) Surviving Indebtedness listed existing on the date hereof and described in Schedule 7.03(b5.22;
(c) subject to subsection (k) of this Section 6.17, purchase money Indebtedness incurred in connection with the purchase of any Equipment (other than Compression Units or Inventory); provided that, but the amount of such purchase money Indebtedness shall be limited to an amount not in excess of the purchase price of such Equipment;
(d) Indebtedness which represents an extension, refinancing, or renewal of any extensionsof the Indebtedness described in clauses (b) and (c) hereof; provided that, renewals (i) the principal amount or replacements interest rate of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and is not increased, (ii) refinancings and extensions any Liens securing such Indebtedness are not extended to any additional Property of any Loan Party, (iii) no Loan Party that is not originally obligated with respect to repayment of such Indebtedness is required to become obligated with respect thereto, (iv) such extension, refinancing or renewal does not result in a shortening of the average weighted maturity of the Indebtedness so extended, refinanced or renewed, (v) the terms of any such Indebtedness if the terms and conditions thereof extension, refinancing, or renewal are not less favorable to the obligor thereon thereunder than the original terms of such Indebtedness and (iv) if the Indebtedness that is refinanced, renewed, or extended was subordinated in right of payment to the Lenders than Obligations, then the terms and conditions of the refinancing, renewal, or extension Indebtedness being refinanced or extended, must include subordination terms and conditions that are at least as favorable to the Agent and the average life to maturity thereof is greater than or equal to Lenders as those that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect were applicable to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, or extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness owing by any Loan Party to any other Loan Party with respect to intercompany loans, provided further, that:
(i) the applicable Loan Parties shall have executed on the Original Closing Date, a demand note (collectively, the “Intercompany Notes”) to evidence any such intercompany Indebtedness owing at any time by any Loan Party to another Loan Party, which Intercompany Notes shall be in respect form and substance reasonably satisfactory to the Agent and shall be pledged and delivered to the Agent pursuant to the Security Agreement as additional collateral security for the Secured Obligations;
(ii) the Borrower shall record all intercompany transactions on its books and records in a manner reasonably satisfactory to the Agent;
(iii) the obligations of Swap Contracts designed the Borrower under any such Intercompany Notes shall be subordinated to hedge against interest ratesthe Obligations of the Borrower hereunder in a manner reasonably satisfactory to the Agent;
(iv) at the time any such intercompany loan or advance is made by the Borrower and after giving effect thereto, foreign exchange rates the Borrower shall be Solvent; and
(v) no Default or commodities pricing risks incurred in the ordinary course of business Unmatured Default would occur and not for speculative purposes;be continuing after giving effect to any such proposed intercompany loan.
(f) Indebtedness incurred Contingent Obligations (i) by any Loan Party in respect endorsement of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts instruments for deposit or similar instruments issued or created collection in the ordinary course of business, including (ii) consisting of the Reimbursements Obligations and (iii) consisting of the Guaranty and guarantees of Indebtedness incurred for the benefit of any other Loan Party if the primary obligation is expressly permitted elsewhere in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsthis Section 6.17;
(g) Indebtedness incurred by any Loan Party in respect Subject to subsection (k) of 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 business in accordance with customary terms and paid within the specified timethis Section 6.17, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPCapitalized Lease Obligations;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business[Reserved];
(i) Indebtedness arising under Rate Management Transactions having an aggregate notional amount not exceeding fifty percent (50%) of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary the Aggregate Commitment, provided that such Rate Management Transaction is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness with an Affiliate of Borrower and is permitted as made on an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agentarm’s-length basis;
(j) Other unsecured Indebtedness issued by a Loan Party or any of its Subsidiaries; provided that, (i) immediately prior to and after giving effect to the issuance of such Indebtedness, there would be no Default under this Agreement, (ii) such Indebtedness’ scheduled maturity is no earlier than twelve (12) months after the Facility Termination Date, (iii) such Indebtedness does not require any scheduled repayments, defeasance or redemption (or sinking fund therefor) of any principal amount thereof prior to maturity, and (iv) the indenture or other agreement governing such Indebtedness shall not contain (A) maintenance financial covenants or (B) other terms and conditions that which taken as a whole are materially more restrictive on the Borrower or any of its Subsidiaries than then available market terms and conditions for borrowed money) comparable issuers and issuances, and any refinancings, refundings, renewals or extensions thereof or this Facility; provided that may be deemed to exist pursuant to any bona fide warranty the terms of such refinancing, refunding, renewing, or contractual service obligations or performance in extending Indebtedness satisfy the ordinary course requirements of business of the Loan Parties;this Section 6.17(j).
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary hereinin subsections (c) and (g) of this Section 6.17, no Loan Party the aggregate outstanding debt with respect to purchase money Indebtedness, as provided in subsection (c) of this Section 6.17 and Capitalized Lease Obligations Indebtedness, as provided for pursuant to subsection (g) of this Section 6.17 shall have outstanding, create or incur not in the aggregate exceed $7,500,000 outstanding at any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentone time.
Appears in 2 contracts
Sources: Credit Agreement (USA Compression Partners, LP), Credit Agreement
Indebtedness. CreateThe Borrower will not, and will not permit any of the Restricted Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(ai) Obligations of Indebtedness incurred pursuant to this Agreement and the Loan Parties under the Loan other Credit Documents;
(bii) Surviving Existing Indebtedness outstanding on the Closing Date and listed on Schedule 7.03(b6.04 (as reduced by any permanent repayments of principal thereof) and, in each case, any subsequent extension, renewal or refinancing thereof, provided that the aggregate principal amount of the Indebtedness to be extended, renewed or refinanced does not increase from that amount outstanding (or, in the case of a revolving line of credit, the amount committed on the Closing Date (as reduced by any permanent commitment reductions thereunder)) at the time of any such extension, but not any extensionsrenewal or refinancing, renewals or replacements and neither the final maturity nor the Weighted Average Life to Maturity of such Indebtedness except (i) renewals and extensions expressly provided for in is decreased, such Indebtedness, if subordinated to the agreements evidencing any such Indebtedness as the same are in effect Obligations, remains so subordinated on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not no less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedLenders, and the average life to maturity thereof is greater than or equal to that original obligors in respect of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under remain the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromonly obligors thereon;
(ciii) Indebtedness with respect to Capital Leases of the Borrower and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in Restricted Subsidiaries under Interest Rate Protection Agreements or Other Hedging Agreements, so long as the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence entering into of such Indebtedness, as the case may be, Interest Rate Protection Agreements or Other Hedging Agreements are bona fide hedging activities and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and are not for speculative purposes;
(fiv) Indebtedness of the Borrower and the Restricted Subsidiaries evidenced by Capitalized Lease Obligations and purchase money Indebtedness described in Section 6.01(vii), provided that in no event shall the sum of the aggregate principal amount of all Capitalized Lease Obligations and purchase money Indebtedness permitted by this clause (iv) exceed $25,000,000 at any time outstanding;
(v) Indebtedness constituting Intercompany Loans to the extent permitted by Section 6.05(viii);
(vi) Indebtedness consisting of guaranties or other Contingent Obligations (x) by the Borrower and the Wholly-Owned Restricted Subsidiaries that are Subsidiary Guarantors of each other’s Indebtedness and other obligations permitted under this Agreement (other than guaranties of Non-Recourse Indebtedness, Permitted Funding Indebtedness or any Indebtedness permitted under Section 6.04(xvii); provided that the Borrower (but no other Credit Party) may, on an unsecured basis, guarantee the Permitted Funding Indebtedness of a Subsidiary Guarantor), (y) by Wholly-Owned Restricted Subsidiaries that are not Credit Parties of each other’s Indebtedness or other contractual obligations permitted under this Agreement (in each case other than guaranties of Non-Recourse Indebtedness or Securitization Indebtedness) and (z) of Indebtedness and other obligations (including any Permitted Funding Indebtedness) so long as such guaranty or other Contingent Obligation is otherwise permitted as an Investment under Section 6.05 (other than Section 6.05(xi));
(vii) Indebtedness of a Restricted Subsidiary acquired pursuant to a Permitted Acquisition (or Indebtedness assumed at the time of a Permitted Acquisition of an asset securing such Indebtedness), provided that (x) such Indebtedness was not incurred in connection with, or in anticipation or contemplation of, such Permitted Acquisition, (y) such Indebtedness is not guaranteed in any respect by the Borrower or any Loan Party in respect Restricted Subsidiary (other than any acquired Person that becomes a Restricted Subsidiary) and (z) the aggregate principal amount of letters all Indebtedness permitted by this clause (vii) (other than Permitted Funding Indebtedness) shall not exceed $50,000,000;
(viii) Indebtedness arising from the honoring by a bank or other financial institution of credita check, bank guarantees, bankers’ acceptances, warehouse receipts draft or similar instruments issued or created instrument drawn against insufficient funds in the ordinary course of business, including in respect so long as such Indebtedness is extinguished within three Business Days of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other its incurrence;
(ix) Indebtedness of the Borrower and the Restricted Subsidiaries with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred performance bonds, surety bonds, appeal bonds or customs bonds required in the ordinary course of business or in accordance connection with customary terms and paid within the specified time, unless contested enforcement of rights or claims of the Borrower or any Restricted Subsidiary or in good faith by appropriate proceedings and reserved for substantially connection with judgments that do not result in accordance with GAAPa Default or an Event of Default;
(hx) Indebtedness consisting of guarantees resulting from endorsement the Borrower or any Restricted Subsidiary which may be deemed to exist in connection with customary agreements providing for indemnification, purchase price adjustments and similar obligations in connection with the acquisition or disposition of negotiable instruments for collection assets in connection with transactions otherwise permitted hereunder, so long as any such obligations are those of the Person making the respective acquisition or sale, and are not guaranteed by any Loan Party other Person except as permitted by Section 6.04(vi);
(xi) Permitted Funding Indebtedness;
(xii) Non-Recourse Indebtedness;
(xiii) to the extent constituting Indebtedness, Indebtedness under Excess Spread Sales incurred in the ordinary course of business;
(iA) Indebtedness of (i) the Borrower or any Loan Party owing Restricted Subsidiary which may be deemed to exist pursuant to earn-out arrangements upon the achievement of certain future performance goals of the respective Acquired Entity in connection with Permitted Acquisitions, so long as any such obligations are those of the Person making the respective Permitted Acquisition and are not guaranteed by any other Loan Party and (iiPerson except as permitted by Section 6.04(vi) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such any Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes Borrower or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that Restricted Subsidiary which may be deemed to exist pursuant to any bona fide warranty deferred purchase price, installment payment or contractual service obligations similar arrangement in connection with the purchase of MSR, Servicing Advances, REO Assets, servicing rights, Residual Interests Excess Spreads, residential or performance commercial mortgage loans or Securitization Assets, provided such Indebtedness is on terms consistent with standards acceptable to the industry;
(xv) [reserved];
(xvi) [reserved];
(xvii) Indebtedness of any Restricted Subsidiary that is a general partner of a Permitted Fund solely as a result of such Restricted Subsidiary being a general partner of a Permitted Fund but only so long as such Restricted Subsidiary is in compliance with Section 6.13;
(xviii) Permitted Securitization Indebtedness and Indebtedness under Credit Enhancement Agreements, in each case incurred in the ordinary course of business of the Loan Partiesbusiness;
(kxix) so long as no Default or Event of Default then exists or would result therefrom, additional unsecured Indebtedness incurred by the Borrower and the Restricted Subsidiaries (other than a Non-Recourse Entity) in an aggregate principal amount not to exceed $50,000,000 at any one time outstanding;
(xx) Indebtedness consisting of undrawn letters of credit and reimbursement obligations with respect to letters of credit issued for the benefit of the Borrower or any Restricted Subsidiary; provided that the aggregate face amount of all such letters of credit at any time outstanding shall not exceed L/C Cap;
(xxi) Permitted External Refinancing Debt of any Credit Party, and any Permitted Refinancing thereof; and
(xxii) Indebtedness of the Credit Parties in respect of the convertible notes; provided that, all such Indebtedness Second Lien Senior Subordinated PIK Toggle Notes in respect an aggregate principal amount of up to $250,000,000 plus the convertible notes shall be unsecured and subordinated amount of any increase in right of payment to the payment in full (other than any payment outstanding principal amount thereof as a result of the conversion issuance of such convertible notes into Equity Interests of ParentPIK Interest (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) to the Obligations;
(l) other unsecured Indebtednessin connection therewith, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03each case, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have at any time outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee less the aggregate amount of any Loan Party unless such Indebtedness is expressly permitted hereunder principal payments made thereon (other than in connection with a Permitted Refinancing thereof), and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentany Permitted Refinancing thereof.
Appears in 2 contracts
Sources: Credit Agreement (Walter Investment Management Corp), Credit Agreement (Walter Investment Management Corp)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, Indebtedness (exclusive of trade debt) except the following, without duplication (which constitutes “Permitted Indebtedness”):in respect of:
(a) Obligations of Indebtedness to Lenders under this Agreement and the Loan Parties under the Loan Other Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided incurred for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness Capital Expenditures permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromSection 7.6 hereof;
(c) Permitted Purchase Money Indebtedness;
(d) Indebtedness with respect to Capital Leases described on Schedule 7.8 and purchase money any refinancings of such Indebtedness, provided that the aggregate principal amount of such Indebtedness is not increased, the scheduled maturity dates of such Indebtedness are not shortened and such refinancing is on terms and conditions no more restrictive than the terms and conditions of the Indebtedness being refinanced;
(e) Indebtedness under any Interest Rate Hedge;
(f) Indebtedness not otherwise permitted hereunder in an amount not to exceed $1,000,000 in the aggregate 1,500,000 outstanding at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsone time;
(g) Indebtedness incurred assumed by any Loan a Credit Party in respect of 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 business in accordance connection with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPSection 7.1 or Section 7.14;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments a judgment having been rendered against a Credit Party for collection by any Loan Party in the ordinary course of businesswhich reserves have been established;
(i) Indebtedness of (i) any Loan Party owing with respect to any other Loan Party and (ii) Indebtedness owed guarantees permitted by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent7.3;
(j) unsecured Indebtedness due under the Subordinated Loan Documentation; and any refinancings of such Indebtedness, provided that in connection with such refinancing: (other i) the aggregate principal amount of such Indebtedness is not increased, (ii) the scheduled maturity date of such Indebtedness is not shortened, (iii) the covenants or defaults are not materially more restrictive or more onerous than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance analogous provisions in the ordinary course Subordinated Loan Documentation as in effect on the date hereof, and (iv) an intercreditor agreement in form and substance satisfactory to Agent and the Required Lenders shall have been executed and delivered to Agent prior to the consummation of business of such refinancing (it being agreed that an intercreditor agreement containing terms substantially similar to the Loan Parties;terms set forth in the Subordination Agreement will be satisfactory); and
(k) Indebtedness in respect of connection with the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentPPP.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (Perma Fix Environmental Services Inc), Revolving Credit, Term Loan and Security Agreement (Perma Fix Environmental Services Inc)
Indebtedness. CreateSo long as any Notes remain outstanding, the Company and the Guarantors shall not, and shall not permit any of their Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):duplication:
(aA) Obligations of Indebtedness outstanding on the Loan Parties under Issue Date (including the Loan DocumentsNotes);
(bB) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except incurred in connection with the Plan (i) renewals and extensions expressly provided for in including the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedSenior Secured Credit Facility, and which shall further permit the average life principal amount of indebtedness under the Senior Secured Credit Facility to maturity thereof is greater than or equal be increased to that one hundred million dollars ($100,000,000) prior to any refinancing of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or Senior Secured Credit Facility);
(C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to additional Capital Leases incurred after the Issue Date and purchase money Indebtedness in an aggregate amount not to exceed $1,000,000 750,000 in the aggregate at any time outstanding, and any Refinancing Indebtedness in respect of such Indebtedness; provided that any such Indebtedness (xi) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured only by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (yii) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(dD) the SBA PPP Loanother unsecured Indebtedness in an aggregate principal amount not to exceed $250,000 at any time outstanding;
(eE) Indebtedness subordinated to the Notes so long as such Indebtedness has a maturity date one year past the Maturity Date and an interest rate lower than the Notes (the “Junior Indebtedness”);
(F) Indebtedness that is pari passu in right of payment to the Notes (including secured Indebtedness) if net pharmaceutical product revenue for the twelve (12) months prior to the incurrence of such Indebtedness, on a pro forma basis, exceeds 1:00 to 1:00 of all funded Indebtedness (excluding the Junior Indebtedness);
(G) Indebtedness in respect of Swap Contracts designed performance of bids, trade contracts, governmental contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, indemnity, customs and appeal bonds, performance bonds and other obligations of a like nature (including those to hedge against interest ratessecure health, foreign exchange rates or commodities pricing risks safety and environmental obligations), and, in each case, letters of credit in respect thereof, incurred in the ordinary course of business and not for speculative purposesbusiness;
(fH) non-recourse Indebtedness incurred by the Company or the Guarantors or any Loan Party in respect of letters their Subsidiaries to finance the payment of creditinsurance premiums of such Person;
(I) Indebtedness owed to any Person providing worker’s compensation, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claimsunemployment insurance and other social security legislation, health, disability or other employee benefits or property, casualty or liability insurance to the Company or self-the Guarantors or any of their Subsidiaries incurred in connection with such Person providing such benefits or insurance pursuant to customary reimbursement or other Indebtedness indemnification obligations to such Person;
(J) reimbursement obligations owed to banks and financial institutions with respect to reimbursement-type obligations regarding workers compensation claimscredit card services in an aggregate amount at any one time not exceeding $400,000;
(gK) Indebtedness incurred by any Loan Party in respect consisting of 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 business in accordance with customary terms and paid within the specified time, unless past due for more than 120 days after its stated due date (except for accounts payable contested in good faith by appropriate proceedings and reserved for substantially faith) which do not in accordance with GAAPthe aggregate exceed $750,000;
(hL) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by the Company and the Guarantors under the Deed Poll Constituting Loan Notes in an aggregate principal amount not to exceed $85,000,000 at any Loan Party in the ordinary course of businesstime outstanding;
(iM) Indebtedness of (i) finance leases with respect to AP101 and AP103 equipment in an amount not to exceed $5,000,000 in the aggregate at any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary time outstanding; provided that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced secured only by promissory notes the equipment financed thereunder;
(N) Indebtedness under that certain Finance Contract dated as of December 1, 2016 between Amryt Pharmaceuticals DAC and all such notes shall European Investment Bank, as the same may be subject amended, restated, supplemented or otherwise modified from time to a first priority Lien pursuant to time, from the Collateral Documents and period from the Issue Date up through one (B1) all such Business Day following the Issue Date which Indebtedness shall be unsecured and subordinated in right of payment to the payment paid in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less no later than one hundred eighty (1801) days Business Day following the Last Out Maturity Issue Date; and
(mO) the 2021 Preferred Stock on terms reasonably acceptable The refinancing of any Indebtedness that was permitted under this Indenture when it was incurred, only to the Administrative Agent in its sole discretion. For purposes extent such principal amount of determining compliance with this Section 7.03, all Obligations outstanding under such refinancing is not more than the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) principal amount of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder being refinanced, plus any customary fees and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentreasonable expenses.
Appears in 2 contracts
Sources: Indenture (Amryt Pharma PLC), Indenture (Amryt Pharma PLC)
Indebtedness. CreateCompany shall not permit its Subsidiaries which are not Subsidiary Guarantors to, directly or indirectly, create, incur, assume or suffer guaranty, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness in excess of an aggregate amount equal to exist any Indebtedness15% of Consolidated Net Worth of Company as of the last day of the most recently ended Fiscal Quarter for all such non-Subsidiary Guarantors, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;for:
(i) Indebtedness existing on the date hereof and set forth in Schedule 7.1 and any refinancing, extension or renewals thereof to the extent the principal amount of such Indebtedness is not increased (i) any Loan Party owing except by an amount equal to any the unpaid accrued interest and premium thereon or other Loan Party amounts paid, and fees and expenses incurred, in connection with such refinancing, extension or renewal), and neither the final maturity nor the weighted average life to maturity of such Indebtedness is decreased;
(ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary under intercompany loans made to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced Subsidiary by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes Company or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral AgentSubsidiary;
(jiii) unsecured Indebtedness up to an aggregate of $1.5 billion incurred in connection with a Permitted Receivables Transaction;
(other than for borrowed moneyiv) that Indebtedness which may be deemed to exist pursuant with respect to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan PartiesHedge Agreements;
(kv) Indebtedness that may exist in respect of the convertible notes; provided that, all deposits or payments made by customers or clients of such Subsidiaries;
(vi) Indebtedness owed in respect of any netting services, overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds;
(vii) Indebtedness up to an aggregate of $200,000,000 incurred in connection with or as a component of the convertible notes shall be unsecured purchase price of any property or that was existing on any property or any Person acquired by such Subsidiary at the time of acquisition thereof and subordinated assumed in right of payment to the payment in full connection with such acquisition (other than Indebtedness issued in connection with, or in anticipation of, such acquisitions), and any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) refinancing, extension or renewals thereof to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following extent the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes principal amount of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated not increased (except by an amount equal to the Loans unpaid accrued interest and premium thereon or other Obligations amounts paid, and fees and expenses incurred, in a manner connection with such refinancing, extension or renewal), and on terms satisfactory neither the final maturity nor the weighted average life to the Administrative Agent.maturity of such Indebtedness is decreased; and
Appears in 2 contracts
Sources: Credit Agreement (Express Scripts Holding Co.), Credit Agreement (Express Scripts Holding Co.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness existing on the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on date hereof and set forth in Schedule 7.03(b), but not 6.01 and any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in to the agreements evidencing any extent the principal amount of such Indebtedness as is not increased, neither the same are in effect on final maturity nor the date weighted average life to maturity of this Agreement and (ii) refinancings and extensions of any such Indebtedness is decreased, such Indebtedness, if subordinated to the Obligations, remains so subordinated on terms and conditions thereof are not no less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedLenders, and the average life to maturity thereof is greater than or equal to that obligors in respect of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted at the time of such refinancing remain the only obligors thereon;
(b) Indebtedness created hereunder and under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromother Loan Documents;
(c) intercompany Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect Borrower and the Subsidiaries to such assetthe extent permitted by Section 6.04(c);
(d) Indebtedness of the SBA PPP LoanBorrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this Section 6.01(d), when combined with the aggregate principal amount of all Capital Lease Obligations incurred pursuant to Section 6.01(e) shall not exceed $20,000,000 at any time outstanding;
(e) Capital Lease Obligations in an aggregate principal amount, when combined with the aggregate principal amount of all Indebtedness incurred pursuant to Section 6.01(d), not in respect excess of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes$20,000,000 at any time outstanding;
(f) Indebtedness incurred by any Loan Party in under performance bonds or with respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers to workers' compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness in each case incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(g) Melody Permitted Indebtedness;
(h) Indebtedness incurred by Foreign Subsidiaries for working capital in an aggregate principal amount not exceeding $25,000,000 at any time outstanding, up to $10,000,000 of which may be Guaranteed on an unsecured basis by the Borrower and/or one or more Domestic Subsidiaries;
(i) Indebtedness of any Subsidiary that exists at the time such person becomes a Subsidiary and that was not incurred in contemplation of or in connection with the acquisition by the Borrower or a Subsidiary of such person, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(j) Guarantees by the Borrower or any Subsidiary of any Indebtedness permitted under this Section 6.01; provided, however, that (i) any Loan Party owing to any other Loan Party no Indebtedness of Holdings may be Guaranteed under this paragraph (j) and (ii) Indebtedness owed of Foreign Subsidiaries may be Guaranteed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party the Borrower and the Domestic Subsidiaries only to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, provided for in each case paragraph (Ah) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Partiesabove;
(k) Indebtedness in respect of the convertible notesAdditional L/C Facility in an aggregate amount outstanding at any time not to exceed $10,000,000; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;and
(l) other unsecured Indebtedness, provided that such Indebtedness matures of the Borrower or the Subsidiaries in an aggregate principal amount not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have exceeding $30,000,000 at any time outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Fs Equity Partners Iii Lp), Credit Agreement (Blum Capital Partners Lp)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness existing on the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on date hereof and set forth in Schedule 7.03(b), but not 6.01 and any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in to the agreements evidencing any extent the principal amount of such Indebtedness as is not increased, neither the same are in effect on final maturity nor the date weighted average life to maturity of this Agreement and (ii) refinancings and extensions of any such Indebtedness is decreased, such Indebtedness, if subordinated to the Obligations, remains so subordinated on terms and conditions thereof are not no less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedLenders, and the average life to maturity thereof is greater than or equal to that original obligors in respect of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted remain the only obligors thereon;
(b) Indebtedness created hereunder and under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extendedother Loan Documents, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromincluding Incremental Term Loans;
(c) intercompany Indebtedness with respect of the Borrower and the Subsidiaries to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that extent permitted by Section 6.04(c) so long as any such Indebtedness (x) in owed to a Subsidiary that is not a Subsidiary Guarantor is subordinated to the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject Obligations pursuant to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetan Affiliate Subordination Agreement;
(d) Indebtedness of the SBA PPP LoanBorrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this Section 6.01(d), when combined with the aggregate principal amount of all Capital Lease Obligations incurred pursuant to Section 6.01(e), shall not exceed $5,000,000 at any time outstanding;
(e) Capital Lease Obligations in an aggregate principal amount, when combined with the aggregate principal amount of all Indebtedness incurred pursuant to Section 6.01(d), not in respect excess of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes$5,000,000 at any time outstanding;
(f) Indebtedness incurred by any Loan Party in under performance bonds or with respect of letters of credit, bank guarantees, bankersto workers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness in each case incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(ig) Indebtedness of any Person that becomes a Subsidiary after the date hereof; provided that (i) any Loan Party owing to any other Loan Party such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary, and (ii) immediately before and after such Person becomes a Subsidiary, no Default or Event of Default shall have occurred and be continuing;
(h) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment in respect of those Hedging Agreements incurred pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes 5.13 or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business and consistent with prudent business practice;
(i) other Indebtedness of the Borrower or the Subsidiaries in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(j) Indebtedness to Sponsor incurred solely to refinance the Glickberg Note; provided that such Indebtedness (i) is incurred only by those Loan Parties;Parties that are obligors under the Glickberg Note, (ii) has terms no less favorable to the Borrower and the Subsidiaries than the Glickberg Note and (iii) is subordinated to the Obligations on terms no less favorable to the Lenders than the subordination terms applicable to the Glickberg Note; and
(k) Indebtedness in respect consisting of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only interest paid in-kind on the exception in clause (a) of this Section 7.03. Notwithstanding anything to Glickberg Note at the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to rate set forth therein on the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentdate hereof.
Appears in 2 contracts
Sources: Credit Agreement (Fairway Group Holdings Corp), Credit Agreement (Fairway Group Holdings Corp)
Indebtedness. Create, incur, assume assume, permit, guarantee, or suffer otherwise become or remain, directly or indirectly, liable with respect to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties under the Loan DocumentsIndebtedness evidenced by this Agreement;
(b) Surviving Indebtedness listed set forth on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;5.4
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be fully secured by the asset subject to such additional Capital Leases Permitted Liens or acquired asset by Liens described in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;Section 7.2(u)
(d) a guarantee obligation in connection with an exchange permitted under Section 1031 of the SBA PPP LoanIRC;
(e) refinancings, renewals, or extensions of Indebtedness in respect of Swap Contracts designed to hedge against interest ratespermitted under clauses (b), foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(e), (f) Indebtedness incurred by any Loan Party in respect of letters of credit), bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by of this Section 7.1 (and continuance or renewal of any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of moneyPermitted Liens associated therewith) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
so long as: (i) Indebtedness the terms and conditions of (i) any Loan Party owing to any other Loan Party and such refinancings, renewals, or extensions do not materially impair the prospects of repayment of the Obligations by Borrower, (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such that the Indebtedness that is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and refinanced was subordinated in right of payment to the payment in full Obligations, then the subordination terms and conditions of the Obligations pursuant refinancing Indebtedness must be at least as favorable to Banks as those applicable to the terms refinanced Indebtedness, and (iii) if and to the extent any such refinancings, renewals or extensions are for assets acquired, sold, refinanced, or funded by an Equity Infusion, the original amount of the applicable promissory notes Advance corresponding to such asset shall be repaid to Lender concurrently with such refinancing, extension or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agentrenewal;
(j1) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment non-recourse debt incurred by Borrower as a result portion of the conversion Borrower’s purchase price of (i) real property, or (ii) pools of notes fully secured by liens on real property; and(g) debt which is recourse to or guaranteed by Borrower, where such convertible debt is incurred or assumed by Borrower or Borrower’s Subsidiaries or Affiliates and fully secured by (i) real property, or (ii) pools of notes into Equity Interests of Parent) to the Obligationsfully secured by liens on real property;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 2 contracts
Sources: Loan Agreement (Prospect Acquisition Corp), Loan Agreement (Prospect Acquisition Corp)
Indebtedness. CreateThe Loan Parties will not permit any Consolidated Party to contract, create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness arising under this Agreement and the Loan Parties under the other Loan Documents;
(b) Surviving Indebtedness listed on of the Borrowers and their Subsidiaries set forth in Schedule 7.03(b)7.01 (and renewals, but not any extensions, renewals or replacements refinancings and extensions thereof; provided that (x) the amount of such Indebtedness except is not increased at the time of such renewal, refinancing or extension, (iy) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof of such renewal, refinancing or extension are materially not less favorable to such Borrowers or Subsidiary, taken as a whole and (z) the obligor thereon maturity date of such renewal, refinancing or to extension shall be a date after the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromMaturity Date);
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness (including obligations in an amount respect of Capital Leases or Synthetic Lease Obligations) hereafter incurred by the Borrowers or any of their Subsidiaries to finance the purchase of fixed assets provided that (i) the total of all such Indebtedness for all such Persons taken together along with all Indebtedness incurred pursuant to Section 7.01(j) shall not to exceed $1,000,000 in the aggregate 150,000,000 at any one time outstanding; provided that any (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (xiii) in the case of additional Capital Leases or purchase money Indebtedness, no such Indebtedness shall be secured by refinanced for a principal amount in excess of the asset subject to such additional Capital Leases or acquired asset in connection with principal balance outstanding thereon at the incurrence time of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetrefinancing;
(d) obligations (contingent or otherwise) of the SBA PPP Loan;
Borrowers or any Subsidiary existing or arising under any Swap Contracts, provided that such obligations are (eor were) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with purchases, sales, 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 speculative purposespurposes of speculation or taking a “market view”;
(e) intercompany Indebtedness and Guarantees permitted under Section 7.06;
(f) in addition to the Indebtedness otherwise permitted by this Section 7.01, other Indebtedness incurred by the Borrowers or any Loan Party in respect of letters their Subsidiaries after the Restatement Date, provided that (i) such Indebtedness shall be unsecured and (ii) the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to the incurrence of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in such Indebtedness and to the ordinary course concurrent retirement of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or any other Indebtedness of any Consolidated Party, the Loan Parties would be in compliance with respect to reimbursement-type obligations regarding workers compensation claimsthe financial covenants set forth in Section 6.10(a) and (b);
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP[reserved];
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business[reserved];
(i) Indebtedness of pursuant to the Revolving Credit Agreement in an aggregate outstanding principal amount not to exceed $300,000,000 (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party or, to the extent the aggregate commitments thereunder are increased pursuant to Section 2.14 of the Revolving Credit Agreement, such increased amount, not to exceed a maximum of $800,000,000), including and renewals, refinancings and extensions thereof; provided that (x) the amount of such Indebtedness is permitted as an Investment pursuant to Section 7.02not increased at the time of such renewal, refinancing or extension; provided, that, in each case (Ay) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of such renewal, refinancing or extension are materially not less favorable to such Borrowers or Subsidiary, taken as a whole and (z) no additional collateral is pledged by the applicable promissory notes or an intercompany subordination agreement that in any Loan Parties to secure such case, is reasonably satisfactory to the Collateral AgentIndebtedness;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment addition to the payment in full (Indebtedness otherwise permitted by this Section 7.01, other than secured Indebtedness incurred by the Borrowers or any payment as a result of their Subsidiaries after the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured IndebtednessRestatement Date, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(mi) the 2021 Preferred Stock on terms reasonably acceptable Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to the incurrence of such Indebtedness and to the concurrent retirement of any other Indebtedness of any Consolidated Party, the Loan Parties would be in its sole discretion. For purposes of determining compliance with this the financial covenants set forth in Section 7.03, 6.10(a) and (b) and (ii) the aggregate principal amount of all Obligations outstanding under the Loan Documents will be deemed secured Indebtedness taken together along with all Indebtedness pursuant to have been incurred in reliance only on the exception in clause (aSection 7.01(c) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.not exceed $150,000,000; and
Appears in 2 contracts
Sources: Term Loan Agreement (Potlatchdeltic Corp), Term Loan Agreement (Potlatchdeltic Corp)
Indebtedness. Create, incur, assume assume, permit, guarantee, or suffer otherwise become or remain, directly or indirectly, liable with respect to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations Indebtedness evidenced by this Agreement, together with Indebtedness to issuers of letters of credit that are the Loan Parties under the Loan Documentssubject of L/C Undertakings;
(b) Surviving Indebtedness listed set forth on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom7.1;
(c) Permitted Purchase Money Indebtedness;
(d) Subordinated Indebtedness with respect in an aggregate amount not to Capital Leases and purchase money exceed $2,000,000 outstanding at any one time;
(e) unsecured Indebtedness incurred by any Borrower in the ordinary course of business for borrowed money, in an aggregate amount not in excess of $2,000,000;
(f) Acquired Indebtedness in an amount not to exceed $1,000,000 in the aggregate 5,000,000 outstanding at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsone time;
(g) Indebtedness incurred by not otherwise permitted under this Section 7.1 in an aggregate amount outstanding at any Loan Party in respect of accounts payable time less than or equal 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP$500,000;
(h) Indebtedness consisting incurred by GCS (including such Indebtedness assumed in connection with the American Music Acquisition) to purchase musical instruments from trade creditors on extended terms; provided that the amount of guarantees resulting such Indebtedness shall not exceed $7,500,000 at any time outstanding;
(i) intercompany indebtedness owed from one Borrower to any other Borrower;
(j) endorsement of negotiable instruments for deposit or collection by any Loan Party or similar transactions in the ordinary course of business;
(ik) Indebtedness from MCI to any Borrower to the extent permitted under clause (g) of the definition of Permitted Investments; and
(l) refinancings, renewals, or extensions of Indebtedness permitted under clauses (b) through (j) of this Section 7.1 (and continuance or renewal of any Permitted Liens associated therewith) so long as: (i) any Loan Party owing to any other Loan Party the terms and conditions of such refinancings, renewals, or extensions do not materially impair the prospects of repayment of the Obligations by Borrowers, (ii) the net cash proceeds of such refinancings, renewals, or extensions do not result in an increase in the aggregate principal amount of the Indebtedness owed by so refinanced, renewed, or extended, (iii) such refinancings, renewals, refundings, or extensions do not result in a Subsidiary that is not a Guarantor Subsidiary to any Loan Party shortening of the average weighted maturity of the Indebtedness so refinanced, renewed, or extended, (iv) to the extent such that Indebtedness that is permitted as an Investment pursuant to Section 7.02; providedrefinanced, thatrenewed, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and or extended was subordinated in right of payment to the payment in full Obligations, then the subordination terms and conditions of the Obligations pursuant refinancing, renewal, or extension Indebtedness must be at least as favorable to the terms of the Lender Group as those applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty refinanced, renewed, or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured extended Indebtedness, provided that and (v) if such Indebtedness matures not less than one hundred eighty (180) days following refinancing, renewal, refunding, or extension involves the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance Senior Notes, such refinancing, renewal, refunding, or extension also complies with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent7.8(c).
Appears in 2 contracts
Sources: Loan and Security Agreement (Guitar Center Inc), Loan and Security Agreement (Guitar Center Inc)
Indebtedness. CreateThe Borrower will not permit any Subsidiary to create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b)under the Euro Facility, but not and any extensionsrenewal and refinancing thereof, renewals or replacements of such Indebtedness except provided (i) renewals that the committed amount thereof is not increased to an aggregate amount greater than the lesser of (A) €850,000,000 and extensions expressly provided for in (B) the agreements evidencing any such Indebtedness as amount permitted under Section 6.19(b) of the same are in effect on the date of this Existing Credit Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders no other Subsidiary (other than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to a Subsidiary that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (ibecomes a borrower thereunder) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with becomes obligated in respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromthereof;
(c) Indebtedness with respect owed to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases Borrower or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% another Subsidiary of the aggregate consideration paid with respect to such assetBorrower;
(d) Indebtedness under performance bonds, surety bonds or letter of credit obligations to provide security under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation, and bank overdrafts, in each case, incurred in the SBA PPP Loanordinary course of business;
(e) Indebtedness of any Subsidiary existing as of the date hereof (other than Indebtedness described in clause (a) or (b) above), and any renewal and refinancing thereof (including any other Subsidiary becoming a primary obligor in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred thereof); provided that the principal amount thereof is not increased;
(f) Indebtedness under Hedging Agreements entered into in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case either (Ai) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and arises under clause (Bi) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms definition of “Indebtedness” or (ii) would not be reflected as indebtedness on a balance sheet of the applicable promissory notes or an intercompany subordination agreement that in Borrower and its Subsidiaries, calculated on a consolidated basis) under any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity DateCananwill Securitization; and
(mh) Other Indebtedness in an aggregate amount outstanding at any time not to exceed €1,500,000,000 minus the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes amount of determining compliance with this Section 7.03, all Obligations Indebtedness then outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create Euro Facility and any renewal or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentrefinancing thereof.
Appears in 2 contracts
Sources: Senior Bridge Term Loan Credit Agreement (Aon Corp), Credit Agreement (Aon Corp)
Indebtedness. Create, incur, assume or assume, suffer to exist exist, guarantee, or otherwise become or remain, directly or indirectly, liable with respect to any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness evidenced by this Agreement and the Loan Parties under the other Loan Documents;, together with Indebtedness owed to Underlying Issuers with respect to Underlying Letters of Credit and any other Obligations that constitute Indebtedness,
(b) Surviving Indebtedness listed set forth on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;5.20,
(c) Indebtedness with respect to Capital Leases Permitted Purchase Money Indebtedness, and purchase money Indebtedness any refinancings, renewals or extensions thereof (and continuance or renewals of the Permitted Liens associated therewith) that do not result in an increase in the then extant principal amount of the Indebtedness so refinanced, renewed or extended.
(d) unsecured Indebtedness not otherwise permitted under this Section 7.1, in an aggregate amount not to exceed $1,000,000 in the aggregate 20,000,000 at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;time,
(e) Indebtedness secured exclusively by Permitted Liens described in respect clause (m) of Swap Contracts designed the definition of Permitted Liens, in an aggregate amount not to hedge against interest rates, foreign exchange rates exceed $5,000,000 at any time,
(f) endorsement of instruments or commodities pricing risks incurred other payment items for deposit,
(g) Indebtedness composing Permitted Investments,
(h) Indebtedness in connection with Hedge Agreements entered into in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;; and
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party insurance company providing insurance to the extent Borrower and its Subsidiaries in an aggregate amount not to exceed the premiums owed to such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all insurance company by Borrower and such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentSubsidiaries.
Appears in 2 contracts
Sources: Loan and Security Agreement (Sharper Image Corp), Loan and Security Agreement (Sharper Image Corp)
Indebtedness. CreateThe Obligors will not, and will not cause any of their Subsidiaries to, incur, assume create or suffer permit to exist any Indebtednessindebtedness without the prior written consent of the Bank, except that the Borrower may incur, create or permit to exist the following, without duplication (which constitutes “Permitted Indebtedness”)::
(a) Obligations existing indebtedness disclosed in the Company's Form 10-Q for the period ended January 31, 1997, or listed and described on Schedule 5.10 attached hereto and renewals, extensions and refinancings thereof, provided that the effective rate of amortization thereof is not increased by any such renewal, extension or refinancing and any such renewal extension or refinancing shall not be on terms less favorable to the Loan Parties under Obligors and their Subsidiaries than those provided in the Loan Documentsexisting agreements for such indebtedness;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable indebtedness to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromBank;
(c) Indebtedness with respect indebtedness subordinated to Capital Leases the indebtedness evidenced by the Loan Documents on terms and conditions satisfactory to the Bank;
(d) indebtedness arising from purchase money Indebtedness mortgages or capital leases for equipment financing;
(e) acquisition indebtedness provided by the seller in an amount any transaction, provided that such indebtedness is unsecured and is treated as current debt for purposes of compliance with the covenants contained in this Agreement and neither the Obligors nor any of their Subsidiaries make any covenant (other than to repay such indebtedness) in incurring such indebtedness;
(f) additional secured indebtedness, provided that such indebtedness shall not to exceed $1,000,000 10,000,000 in the aggregate at any time outstanding("Additional Secured Indebtedness"); provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;and
(g) Indebtedness incurred by any Loan Party in respect indebtedness under unsecured lines of accounts payable to trade creditors for goods and services and current operating liabilities (not the result credit or unsecured revolving lines of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtednesscredit, provided that such Indebtedness matures indebtedness shall not less than one hundred eighty (180exceed $55,000,000 in the aggregate for Obligors and their Subsidiaries at any time; provided, however, that any indebtedness permitted under this Section 5.10(g) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock shall be on terms and conditions reasonably acceptable to Bank. The terms and conditions set forth in the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03proposed Commitment from CoreStates Bank, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything N.A. dated March 17, 1997, as amended May 23, 1997, are acceptable to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing Bank and will continue to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness be acceptable so long as they are not changed in a way that is expressly permitted hereunder and expressly subordinated materially adverse to the Loans Obligors and other Obligations in a manner and on terms satisfactory to the Administrative Agenttheir Subsidiaries.
Appears in 2 contracts
Sources: Term Loan Agreement (Central Sprinkler Corp), Term Loan Agreement (Central Sprinkler Corp)
Indebtedness. Create, incur, assume or suffer to exist exist, or ------------ otherwisebecome or be liable in respect of any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):Indebtedness except:
(a1) Obligations of the Loan Parties under the Loan DocumentsThe Obligations;
(b2) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals Trade debt or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks accounts payable incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including paid within sixty (60) days after the same has become due and payable or which is being contested in respect good faith, provided provision is made to the reasonable satisfaction of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsthe Administrative Agent for the eventual payment thereof in the event it is found that such contested trade debt is payable by the Companies;
(g3) Indebtedness secured by Liens permitted under Paragraph 12(a) above;
(4) Indebtedness which is unsecured;
(5) Indebtedness incurred by any Loan Party in respect of accounts payable pursuant to trade creditors for goods repurchase and services and current operating liabilities (not gestation financing agreements, whether such Indebtedness is shown on the result books of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPCompanies as a sale or as a financing;
(h6) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection which is by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and its terms subordinated in right of payment to the payment Obligations and which is evidenced by instruments and agreements in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is form and content reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent;
(7) Indebtedness attributable to collateralized mortgage obligations of the Companies or any Affiliate thereof;
(8) Indebtedness incurred pursuant to additional financing secured by Construction Loans of the type which serve as Collateral for the Tranche D Facility; provided, however, that the Companies may not enter -------- ------- into any such financing arrangement, nor incur additional outstanding Indebtedness under any such existing financing arrangement, at any time when the amount of availability under the Tranche D Facility equals or exceeds the amount of additional Indebtedness sought to be incurred;
(9) Permitted Other Debt; and
(10) Indebtedness not specifically referred to above but reflected in the financial statements referred to in Paragraph 12(a) above, and extensions, renewals, and refinancings of such Indebtedness.
Appears in 2 contracts
Sources: Credit Agreement (CWM Mortgage Holdings Inc), Credit Agreement (CWM Mortgage Holdings Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations in the case of the Parent, Indebtedness owed to a Guarantor, which Indebtedness shall constitute Pledged Debt pursuant to the terms of Article X;
(b) in the case of any Loan Party (other than the Borrower), Indebtedness owed to the Borrower or the Parent, which Indebtedness shall constitute Pledged Debt pursuant to the terms of Article X; and
(c) in the case of the Loan Parties Parties,
(i) Indebtedness under the Loan Documents;
(bii) Surviving Existing Indebtedness listed on Schedule 7.03(b)and, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness case of financings secured directly or indirectly by “equipment” described in Section 1110(a)(3)(A)(i) of the Bankruptcy Code (as the same are in effect on the date of this Agreement and (ii) hereof), refinancings and extensions replacements thereof, provided that (A) the principal amount of any such Existing Indebtedness if shall not be increased above the terms and conditions principal amount thereof are outstanding immediately prior to such refinancing or replacement, (B) the maturity of such Existing Indebtedness shall not less favorable to be shortened as a result of such refinancing or replacement, (C) the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the weighted average life to maturity thereof is greater than or equal to that of the such Existing Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not be reduced as a result of such refinancing or replacement, and (AD) include Indebtedness the direct and contingent obligors therefor shall not be changed, as a result of an obligor that was not an obligor or in connection with respect to the Indebtedness being extended, renewed such refinancing or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromreplacement;
(ciii) Indebtedness with respect to Capital Leases and purchase money incurred after the Petition Date consisting of Guarantees permitted by Section 7.04;
(iv) Indebtedness under the Chicago Construction Loan in an amount not to exceed $1,000,000 6,990,362;
(v) debt securities, rent deferral notes and capital expenditure notes for the modification or improvement of aircraft, in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the each case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject issued to such additional Capital Leases or acquired asset existing aircraft lessors and/or Lender in connection with the incurrence modification of existing lease or financing arrangements;
(vi) the ATSB Secured Claim in an amount not to exceed $110,000,000;
(vii) Indebtedness in connection with retained aircraft and lease cure payment related thereto;
(viii) letters of credit issued by banks reasonably acceptable to the Lender to the extent that (i) the Loan Party requesting the issuance of any such letter of credit pledges to and deposits with the issuer of such Indebtednessletter of credit cash collateral in an amount not less than 100% of the face amount of such letter of credit and not in excess of 105% of the face amount of such letter of credit, as the case may be, and (yii) in the case event of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to a drawing under any such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters letter of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course issuer of business, including in respect such letter of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect credit looks first to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect the cash collateral for reimbursement of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party such drawing and (iiiii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party after giving effect to the extent issuance of each such Indebtedness is permitted as an Investment pursuant to Section 7.02; providedletter of credit, that, in each case (A) all the sum of any obligations under such Indebtedness letters of credit shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateexceed $40,000,000; and
(mix) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding Indebtedness under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentSouthwest DIP Facility.
Appears in 2 contracts
Sources: Debtor in Possession Credit and Security Agreement (Ata Holdings Corp), Debtor in Possession Credit and Security Agreement
Indebtedness. CreateNo Credit Party shall create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties under the Loan Documents;
Indebtedness secured by Permitted Encumbrances, (b) Surviving Indebtedness listed on Schedule 7.03(b)the Loans and the other Obligations, but not any extensions(c) reimbursement obligations owed by Borrower to the L/C Issuer with respect to Letters of Credit and Eligible Trade L/Cs, renewals (d) the Senior Notes (and refundings, renewals, refinancings or replacements of such Indebtedness except extensions thereof, as long as (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity principal amount thereof is greater not increased (other than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset ordinary costs and expenses incurred in connection with the incurrence applicable refunding, renewal, refinancing or extension), (ii) the terms and provisions thereof are not more burdensome to any Credit Party than the terms and provisions of the Senior Notes, (iii) the fees with respect thereto are not greater than those payable with respect to the Senior Notes and the rate of interest with respect thereto does not exceed the sum of (x) the rate of interest on United States treasury obligations of like tenor at the time of such Indebtednessrefunding, as the case may berenewal, refinancing or extension plus (y) 7% per annum, and (yiv) in such indebtedness is unsecured and not guaranteed by any Person which has not also guaranteed the case of purchase money IndebtednessObligations and the indebtedness being refunded, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
renewed, refinanced or extended), (e) Indebtedness in respect of Swap Contracts designed to hedge against interest ratesdeferred taxes, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law, (g) existing Indebtedness set forth in Disclosure Schedule 6.3 and refinancings thereof or amendments or modifications thereto on terms and conditions no less favorable to any Credit Party, Agent or any Lender, as determined by Agent, than the terms of the Indebtedness being refinanced, amended or modified, (h) intercompany loans among the Loan Parties for operating expenses incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(gi) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection intercompany loans by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing , to any other Loan Party Store Guarantors and (ii) Indebtedness owed intercompany loans by a Subsidiary that is not a Guarantor Subsidiary Store Guarantors to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business business, (j) intercompany loans to Foreign Subsidiaries or Joint Ventures not to exceed $2,000,000 in the aggregate; provided that at the time any such intercompany loan is made to a Foreign Subsidiary or Joint Venture no Event of the Loan Parties;
Default shall have occurred and be continuing or would result after giving effect thereto and Borrower shall have Borrowing Availability of at least $5,000,000 after giving effect thereto, (k) Indebtedness in respect of an unsecured $100,000 customs bond line from Barclays Bank for the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured Foreign Subsidiaries and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) obligations under interest rate swaps on an unsecured basis. No Credit Party shall directly or indirectly voluntarily prepay, repurchase or redeem any Indebtedness other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03Obligations. Notwithstanding anything to the contrary contained herein, no Loan Party Ultimate Parent shall have outstanding, create or be entitled to incur any unsecured Indebtedness owing in an aggregate outstanding amount not to any other Loan Party or any Affiliate or employee of any Loan Party unless exceed $25,000,000 as long as such Indebtedness is expressly permitted hereunder and expressly (a) subordinated to the Loans Obligations on terms, and other Obligations in a manner and on terms pursuant to documentation, satisfactory to Agent or (b) (i) matures within ninety one (91) days of the Administrative Agentdate it is first incurred or issued and (ii) not guaranteed by any Person and not entitled to any credit support of any nature.
Appears in 2 contracts
Sources: Credit Agreement (Wilsons the Leather Experts Inc), Credit Agreement (Wilsons the Leather Experts Inc)
Indebtedness. CreateThe Borrowers shall not, and shall not permit any Subsidiary to, incur, assume create, assume, become or suffer be liable in any manner with respect to, or permit to exist exist, any Indebtedness, except or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly), the followingIndebtedness, without duplication (which constitutes “Permitted Indebtedness”):performance, obligations or dividends of any other Person, except:
(a) Obligations of the Loan Parties under Obligations, as the Loan Documentssame may be increased from time to time by the PIK Interest;
(b) Surviving purchase money Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (iincluding Capital Leases) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on arising after the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable hereof to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause extent secured by purchase money security interests in Equipment (iincluding Capital Leases) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount mortgages on Real Property not to exceed $1,000,000 100,000 in the aggregate at any time outstanding; provided that outstanding so long as such security interests and mortgages do not apply to any such property of the Borrowers or any Subsidiary other than the Equipment or Real Property so acquired, and the Indebtedness (x) in secured thereby does not exceed the case cost of additional Capital Leases the Equipment or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such IndebtednessReal Property so acquired, as the case may be, and ;
(yc) in the case of purchase money Indebtedness, shall constitute not less than 75% guarantees by any Subsidiaries of the aggregate consideration paid with respect to such assetBorrowers of the Obligations in favor of the Lender;
(d) Indebtedness of the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred Borrowers entered into in the ordinary course of business and pursuant to a Hedge Agreement, provided, that such arrangements are not for speculative purposes;
(fe) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02Existing Debt; provided, that, (i) the aggregate principal amount of such Indebtedness shall not exceed $4,948,396, plus any principal arising pursuant to the payment of non-cash interest by incurring additional Indebtedness having substantially the same terms, less the aggregate amount of all repayments, repurchases or redemptions (including without limitation payment of the industrial revenue bonds owed to the R▇▇▇▇▇▇▇▇▇ Financing Authority and the Franklin Development Authority), whether optional or mandatory, in each case respect thereof, and the interest thereon shall not exceed the rate provided for in the Existing Debt as in effect on the date hereof; (ii) the Borrowers shall not, directly or indirectly, (A) all amend, modify, alter or change the terms of any of the Existing Debt or any agreement, document or instrument related thereto, except, that, the Borrowers may amend, modify, alter or change the terms thereof so as to (I) extend the maturity of such Indebtedness; (II) defer the timing of any payments in respect thereof; (III) forgive or cancel any portion of such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien (other than pursuant to payments thereof); and (IV) reduce the Collateral Documents and interest rate or any fees in connection therewith; or (B) redeem, retire, defease, purchase or otherwise acquire such Indebtedness, or set aside or otherwise deposit or invest any sums for such purpose; and (iii) the Borrowers shall furnish to the Lender all notices or demands in connection with the Existing Debt either received by the Borrowers or on their behalf, promptly after the receipt thereof, or sent by the Borrowers or on their behalf, concurrently with the sending thereof, as the case may be; or
(f) the Indebtedness set forth on Schedule 8.13 to the Perfection Certificate which is not permitted by the other provisions of Section 8.13 above; provided, that, (i) the Borrowers may only make regularly scheduled payments of principal and interest in respect of such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to accordance with the terms of the applicable promissory notes agreement or an intercompany subordination agreement that instrument evidencing or giving rise to such Indebtedness as in effect on the date hereof; (ii) the Borrowers shall not, directly or indirectly, (A) amend, modify, alter or change the terms of such Indebtedness or any such caseagreement, is reasonably satisfactory document or instrument related thereto as in effect on the date hereof except, that, the Borrowers may, after prior written notice to the Collateral Agent;
(j) unsecured Lender, 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 for borrowed money) that may be deemed to exist pursuant to payments thereof), or to reduce the interest rate or any bona fide warranty fees in connection therewith; or contractual service obligations (B) redeem, retire, defease, purchase or performance otherwise acquire such Indebtedness, or set aside or otherwise deposit or invest any sums for such purpose; and (iii) the Borrowers shall furnish to the Lender all notices or demands in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all connection with such Indebtedness in respect of either received by the convertible notes shall be unsecured and subordinated in right of payment to Borrowers or on their behalf, promptly after the payment in full (other than any payment receipt thereof, or sent by the Borrowers or on their behalf, concurrently with the sending thereof, as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentcase may be.
Appears in 2 contracts
Sources: Loan Agreement (Coachmen Industries Inc), Loan Agreement (Coachmen Industries Inc)
Indebtedness. Create(a) No Credit Party shall create, incur, assume or suffer permit to exist any Indebtedness, except the following, (without duplication (which constitutes “Permitted Indebtedness”):
(aduplication) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals Indebtedness secured by purchase money security interests and extensions expressly provided for Capital Leases permitted in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and Section 6.7(c), (ii) the Loans and the other Obligations, (iii) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law, (iv) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereof that do not have the effect of increasing the principal amount thereof or changing the amortization thereof (other than to extend the same) and extensions of any such Indebtedness if the that are otherwise on terms and conditions thereof are not no less favorable to the obligor thereon any Credit Party, Agent or to the Lenders any Lender, as determined by Agent, than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that terms of the Indebtedness being refinanced refinanced, amended or extended; providedmodified, such (v) Indebtedness permitted under the immediately preceding clause pursuant to Section 6.2(i) hereof, (ivi) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect Encore Software to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness Borrower in an aggregate amount not to exceed $1,000,000 7,200,000, so long as such Indebtedness is evidenced by an intercompany note, in form and substance satisfactory to Agent, and such intercompany note has been delivered and endorsed to Agent, and Indebtedness of Borrower to Encore Software, Inc., a California corporation pursuant to Section 5 of the Amendment No. 1 to Encore Purchase Agreement in an aggregate at any time outstandingprincipal amount not to exceed $1,150,000; provided that that, no Credit Party (other than Encore Software) shall guarantee, grant liens on its assets (including, without limitation, the equity interests in Encore Software) to secure, or otherwise be directly or indirectly liable for any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may berelated obligations, and (yvii) Indebtedness of BCI Eclipse to the Borrower, so long as (a) the related loans to BCI Eclipse from the Borrower are permitted pursuant to Section 6.2(i), and (b) such Indebtedness is evidenced by an intercompany note, in the case of purchase money Indebtednessform and substance satisfactory to Agent, shall constitute not less than 75% of the aggregate consideration paid with respect and such intercompany note has been delivered and endorsed to such asset;Agent.
(db) the SBA PPP Loan;
(e) Indebtedness 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 Swap Contracts designed to hedge against interest ratesany Indebtedness, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
than (i) Indebtedness of (i) any Loan Party owing to any other Loan Party and the Obligations; (ii) Indebtedness owed secured by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to Permitted Encumbrance if the extent asset securing such Indebtedness is has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c); (iii) Indebtedness permitted as an Investment pursuant to by Section 7.026.3(a)(iv) upon any refinancing thereof in accordance with Section 6.3(a)(iv); provided, that, (iv) other Indebtedness not in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents excess of $250,000; and (Bv) all such Indebtedness shall be unsecured and subordinated as otherwise permitted in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent6.14.
Appears in 2 contracts
Sources: Credit Agreement (Navarre Corp /Mn/), Credit Agreement (Navarre Corp /Mn/)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) the Obligations of and the Loan Parties under the Loan DocumentsNexstar Obligations;
(bi) Surviving second lien secured Indebtedness listed on Schedule 7.03(b)of the Borrower, but not any extensions, renewals or replacements so long as (A) after giving Pro Forma Effect to the incurrence of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedrelated Specified Transaction, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of no Default has occurred and is continuing continuing, (B) the Consolidated Total Secured Debt Leverage Ratio (calculated on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness and any related Specified Transaction) is not greater than 5.50 to 1.00 as of the end of the most recent Test Period, (C) such Indebtedness has a final maturity date equal to or would result therefrom;
later than 180 days after the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Term B Loans, and (cD) the terms and conditions of such Indebtedness reflect market terms on the date of issuance; provided that such Indebtedness shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter (or in addition to), with respect to Capital Leases the borrower of such Indebtedness and purchase money Indebtedness its Restricted Subsidiaries, than those contained in an amount not to exceed $1,000,000 this Agreement and the Financial Covenants contained in the aggregate at any time outstanding; Nexstar Credit Agreement on the date of issuance with respect to the Mission Entities (except for covenants applicable only to the period after the Maturity Date of the Term B Loans) (provided that any such Indebtedness (x) in a certificate of a Responsible Officer of the case of additional Capital Leases or purchase money Indebtedness, shall be secured by Borrower delivered to the asset subject Administrative Agent at least five Business Days prior to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as together with a reasonably detailed description of the case may bematerial terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees)); and (yii) in the case of purchase money Indebtedness, shall constitute not less than 75% any Permitted Refinancing thereof;
(c) obligations of the aggregate consideration paid Borrower and its Restricted Subsidiaries (contingent or otherwise) existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person for the purpose of directly mitigating risks associated with respect to such assetfluctuations in interest rates or foreign exchange rates;
(d) Guarantee Obligations of the SBA PPP LoanMission Entities in respect of Indebtedness of any Loan Party otherwise permitted hereunder (except that an Immaterial Subsidiary may not, by virtue of this Section 7.02(d), guarantee Indebtedness that such Immaterial Subsidiary could not otherwise incur under this Section 7.02); provided that, if the Indebtedness being guaranteed is subordinated to the Obligations, such Guarantee Obligation shall be subordinated to the Guaranties of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness;
(e) Indebtedness of any Mission Entity owing to any Mission Entity to the extent constituting an Investment permitted by Section 7.03 (other than Section 7.03(f)); provided that all such Indebtedness incurred following the Closing Date of any Loan Party or any Restricted Subsidiary of a Loan Party owed to any Person that is not a Loan Party shall be subject to subordination terms reasonably satisfactory to the Administrative Agent;
(f) (i) Attributable Indebtedness and other Indebtedness (including Capitalized Leases) of the Mission Entities financing the acquisition, construction, repair, replacement or improvement of fixed or capital assets (provided that such Indebtedness is incurred concurrently with or within 270 days after the applicable acquisition, construction, repair, replacement or improvement), (ii) Attributable Indebtedness arising out of Permitted Sale Leasebacks, and (iii) any Indebtedness incurred to refinance the Indebtedness set forth in the immediately preceding clauses (i) and (ii) so long as the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so refinanced except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder, and as otherwise permitted under Section 7.02; provided that the aggregate principal amount of Indebtedness incurred by the Mission Entities under this Section 7.02(f) together with the aggregate principal amount of Indebtedness incurred by the Nexstar Entities under Section 7.02(f) of the Nexstar Credit Agreement and any refinancing Indebtedness in respect of Swap Contracts designed either thereof does not exceed the greater of (a) $25,000,000 and (b) 2.0% of Total Assets at the time of incurrence thereof;
(g) (i) Indebtedness of the Mission Entities assumed in connection with any Permitted Acquisition; provided that (A) such Indebtedness was not incurred in contemplation of such Permitted Acquisition, (B) the only obligors with respect to hedge against interest ratesany Indebtedness incurred pursuant to this clause (g) shall be those Persons who were obligors of such Indebtedness prior to such Permitted Acquisition (or in the case of a purchase of assets, foreign exchange rates or commodities pricing risks the purchaser of such assets), and (C) both immediately before and immediately after giving Pro Forma Effect to any such incurrence no Default shall have occurred and be continuing; provided that the aggregate principal amount of Indebtedness incurred by Non-Loan Parties under this Section 7.02(g) and Section 7.02(t), and Section 7.02(g) and Section 7.02(t) of the Nexstar Credit Agreement, and any Permitted Refinancing Indebtedness in respect of any thereof does not exceed $25,000,000; and (ii) any Permitted Refinancing of Indebtedness permitted by (and subject to the proviso of) the preceding clause (i);
(h) Indebtedness of the Mission Entities representing deferred compensation to employees of the Mission Entities incurred in the ordinary course of business and not for speculative purposesbusiness;
(fi) Indebtedness of the Mission Entities to the current or former officers, directors, partners, managers, consultants and employees, their respective estates, spouses or former spouses of the Mission Entities to finance the purchase or redemption of Equity Interests of the Borrower, in each case as permitted by Section 7.09 in an aggregate amount under this Section 7.02(i) and under Section 7.02(i) of the Nexstar Credit Agreement not to exceed $10,000,000 at any one time outstanding;
(j) Indebtedness incurred by the Mission Entities in a Permitted Acquisition, any Loan Party other Investment expressly permitted hereunder or any Disposition, in each case to the extent constituting indemnification obligations or obligations in respect of purchase price (including earn-outs) or other similar adjustments;
(k) Indebtedness consisting of obligations of the Mission Entities under deferred compensation or other similar arrangements incurred by such Person in connection with the Transaction and Permitted Acquisitions or any other Investment expressly permitted hereunder;
(l) Cash Management Obligations and other Indebtedness of the Mission Entities in respect of netting services, automatic clearinghouse arrangements, overdraft protections and similar arrangements in each case in connection with deposit accounts incurred in the ordinary course;
(m) Indebtedness of the Mission Entities 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;
(n) Indebtedness incurred by the Mission Entities in respect of letters of credit, bank guarantees, bankers’ banker’s acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(go) Indebtedness incurred by any Loan Party obligations of the Mission Entities in respect of accounts payable to trade creditors for goods performance, bid, appeal and services surety bonds and current operating liabilities (not performance and completion guarantees and similar obligations provided by the result Borrower or any Restricted Subsidiary or obligations in respect of the borrowing letters of money) incurred credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent with past practice;
(p) Intentionally Left Blank;
(q) other unsecured Indebtedness of the Mission Entities, so long as immediately before and immediately after giving Pro Forma Effect to any such incurrence no Default shall have occurred and be continuing, provided, further, that (i) the aggregate principal amount of such Indebtedness incurred by Restricted Subsidiaries that are not Guarantors together with the Nexstar Restricted Subsidiaries that are not Guarantors shall not exceed $25,000,000 in accordance with customary the aggregate at any one time outstanding, (ii) such Indebtedness has a final maturity date equal to or later than 180 days after the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Term B Loans, and (iii) the terms and paid within conditions of such Indebtedness (excluding pricing and optional prepayment or redemption terms) reflect market terms on the specified timedate of issuance; provided that such Indebtedness shall not contain covenants (including financial maintenance covenants), unless contested taken as a whole, that are materially tighter (or in addition to), with respect to the borrower of such Indebtedness and its Restricted Subsidiaries and any guarantor, than those contained in this Agreement and the Financial Covenants contained in the Nexstar Credit Agreement with respect to the Mission Entities on the date of issuance (except for covenants applicable only to the period after the Maturity Date of the Term B Loans); provided that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith by appropriate proceedings that such terms and reserved for substantially in accordance conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with GAAPsuch determination (including a reasonable description of the basis upon which it disagrees);
(hr) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection incurred by a Non-Loan Party, and guaranties thereof by any Non-Loan Party Party, in an aggregate principal amount for all such Non-Loan Parties not to exceed the ordinary course greater of business(a) $8,500,000 and (b) 1.00% of the aggregate Total Assets of all such Non-Loan Parties at the time of incurrence;
(s) Indebtedness existing on the Closing Date and listed on Schedule 7.02(s) (the “Surviving Indebtedness”) and any Permitted Refinancing thereof;
(i) unsecured Indebtedness of the Mission Entities incurred to finance a Permitted Acquisition; provided that (iA) any Loan Party owing immediately before and immediately after giving Pro Forma Effect to any other such Permitted Acquisition, no Default shall have occurred and be continuing, (B) after giving Pro Forma Effect to any such Permitted Acquisition and the incurrence of such Indebtedness and any related Specified Transaction, the Nexstar Borrower is in compliance with the Consolidated First Lien Net Leverage Ratio and the Consolidated Total Net Leverage Ratio Financial Covenants, in each case computed on a Pro Forma Basis as of the end of the most recent Test Period, (C) such Indebtedness has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Term B Loans, (D) the terms and conditions of such Indebtedness (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of issuance; provided that such Indebtedness shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter (or in addition to), with respect to the borrower of such Indebtedness and its Restricted Subsidiaries and guarantors, than those contained in this Agreement and the Financial Covenants contained in the Nexstar Credit Agreement on the date of issuance with respect to the Mission Entities (except for covenants applicable only to the period after the Maturity Date of the Term B Loans) (provided that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees)) and (E) the aggregate principal amount of Indebtedness that is incurred by Non-Loan Party Parties pursuant to this Section 7.02(t) and Section 7.02(g), and Section 7.02(t) and Section 7.02(g) of the Nexstar Credit Agreement shall not exceed $25,000,000 at any one time outstanding; and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary any Permitted Refinancing thereof;
(u) so long as immediately before and immediately after giving Pro Forma Effect to any Loan Party such incurrence no Default shall have occurred and be continuing, (i) subject to the terms of Section 2.05 with respect to the occurrence of a Repricing Transaction, unsecured or second Lien secured Indebtedness incurred by the Mission Entities to the extent such Indebtedness is permitted as an Investment pursuant that 100% of the Net Cash Proceeds therefrom are, immediately after the receipt thereof, applied solely to the prepayment of Term Loans in accordance with Section 7.022.05(b)(iii); provided, that, in each case provided that (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant not mature earlier than the Maturity Date with respect to the Collateral Documents and relevant tranche of Term Loans being refinanced, (B) all as of the date of the incurrence of such Indebtedness, the Weighted Average Life to Maturity of such Indebtedness shall not be unsecured and subordinated in right shorter than that of payment the remaining Term Loans being refinanced, (C) no Restricted Subsidiary is a borrower or guarantor with respect to the payment in full of such Indebtedness unless such Restricted Subsidiary is a Subsidiary Guarantor which shall have previously or substantially concurrently guaranteed the Obligations pursuant to the applicable Guaranty, (D) the other terms and conditions of such Indebtedness (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of issuance; (E) with respect to the incurrence of second lien secured Indebtedness, a customary intercreditor agreement is entered into for the benefit of the applicable promissory notes or an intercompany subordination agreement Secured Parties and providing that in any such case, is reasonably satisfactory Liens securing such Indebtedness are second Liens and subordinate to the Collateral Agent;
Liens securing the Obligations for the benefit of the Secured Parties, (jF) unsecured such Indebtedness shall not contain covenants (other including financial maintenance covenants), taken as a whole, that are not materially tighter than for borrowed money(or in addition to) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance those contained in this Agreement and the Financial Covenants contained in the ordinary course Nexstar Credit Agreement on the date of business issuance (except for covenants applicable only to the period after the Maturity Date of the Loan Parties;
(k) Indebtedness in respect Term B Loans); provided that a certificate of a Responsible Officer of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable Borrower delivered to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything at least five Business Days prior to the contrary hereinincurrence of such Indebtedness, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in together with a manner and on terms satisfactory to the Administrative Agent.reason
Appears in 2 contracts
Sources: Credit Agreement (Mission Broadcasting Inc), Credit Agreement (Nexstar Broadcasting Group Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness outstanding on the date hereof and listed on Schedule 7.03(b)8.03 and any refinancings, but not any extensionsrefundings, renewals or replacements extensions thereof, provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount, subject to subsection (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable below, equal to the obligor thereon a reasonable premium or to the Lenders than the Indebtedness being refinanced or extendedother reasonable amount paid, and the average life to maturity thereof is greater than or fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromexisting commitments unutilized thereunder;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetSwap Contracts;
(d) the SBA PPP Loanpurchase money Indebtedness (including capital leases) described in Section 8.01(i) not to exceed an aggregate outstanding principal amount at any time of $250,000,000, excluding those described on Schedule 8.03;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposesReal Estate Financing Facilities;
(f) Indebtedness incurred by any Loan Party in respect obligations arising under the Permitted Trade Receivables Facilities, provided that the amount of letters all accounts receivable owing to the Foreign Subsidiaries that are sold, transferred or assigned shall not exceed the equivalent of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created EUR 800,000,000 in the ordinary course aggregate, based on the prevailing spot rate of business, including exchange for the currencies in respect which such accounts receivable are denominated as of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsthe date of determination;
(g) Indebtedness incurred by any Loan Party of a Person, or in respect of accounts payable assets, acquired pursuant to trade creditors for goods an Acquisition permitted under Section 8.12 and services and current operating liabilities existing at the time of such Acquisition (not including the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified timeKohler Acquisition), unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
provided that (i) such Indebtedness was not incurred in contemplation of (i) any Loan Party owing to any other Loan Party such Acquisition and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than not outstanding for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less more than one hundred eighty (180) days following after the Last Out Maturity date of such Acquisition;
(h) Indebtedness of the Kohler Acquired Business or any of its Subsidiaries existing at the time of consummation of the Kohler Acquisition, provided that (i) such Indebtedness was not incurred in contemplation of such Acquisition and (ii) the aggregate principal amount of Indebtedness permitted pursuant to this clause (h) shall not exceed $105,000,000 at any time outstanding;
(i) Other Indebtedness as long as after giving effect to the incurrence thereof, the Borrower will be in pro forma compliance with Section 8.13(a); provided that (i) the aggregate principal amount of Indebtedness of Subsidiaries that are not Guarantors incurred pursuant to this clause (i) shall not exceed $400,000,000 at any time; provided, further, the calculation of such $400,000,000 limit shall exclude Indebtedness incurred or existing pursuant to cash pooling arrangements of the Borrower and its Subsidiaries existing or entered into in the ordinary course of business consistent with past practices and (ii) for the avoidance of doubt, for any incurrence of debt on or after the Kohler Acquisition Closing Date, such pro forma compliance shall be determined after giving effect to the step-up to the Consolidated Total Leverage Ratio described in Section 8.13(a)(x); and
(mj) Guarantees of the 2021 Preferred Stock on terms reasonably acceptable to Indebtedness of the Administrative Agent in Borrower (other than the Obligations) by any Subsidiary that is a Guarantor hereof or becomes a Guarantor hereof concurrently with its sole discretion. For purposes Guarantee of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any such other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentIndebtedness.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Tech Data Corp), Revolving Credit Agreement (Tech Data Corp)
Indebtedness. CreateThe Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations Indebtedness of the Loan Parties under Borrower created pursuant to the Loan Documents;
(b) Surviving Indebtedness listed existing on the date hereof and set forth on Schedule 7.03(b), but not any 7.1 and extensions, renewals or and replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if that do not increase the terms and conditions outstanding principal amount thereof are not less favorable (immediately prior to giving effect to such extension, renewal or replacement) or shorten the obligor thereon maturity or to the Lenders than the Indebtedness being refinanced or extended, and the weighted average life thereof to maturity thereof a date that is greater less than or equal to that of 180 days after the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromMaturity Date;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Permitted Financial Institution Subsidiary Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness owed by the Borrower or any “affiliate” of the Borrower (ias defined in Regulation W of the FRB and sections 23A and 23B of the Federal Reserve Act) any Loan Party owing to any other Loan Party and Financial Institution Subsidiary not in violation of Regulation W of the FRB (as amended, supplemented or otherwise modified) or (ii) Indebtedness owed by a Subsidiary that is not a Guarantor any Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral AgentBorrower;
(je) unsecured Indebtedness (other than for borrowed money) that may be deemed Purchase money indebtedness and Capitalized Lease Obligations secured by Liens permitted under this Agreement in an aggregate amount outstanding at any time not to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Partiesexceed $5,000,000;
(kf) Indebtedness Hedging Obligations in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity DateHedging Transactions permitted by Section 7.8; and
(mg) Other unsecured Indebtedness, so long as, before and after giving pro forma effect to incurrence of such Indebtedness, the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent Borrower and each Financial Institution Subsidiary shall be in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent6.1 hereof.
Appears in 2 contracts
Sources: Credit Agreement (United Community Banks Inc), Credit Agreement (United Community Banks Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness outstanding on the Closing Date and listed on Schedule 7.03(b)7.02 and any refinancings, but not any extensionsrefundings, renewals or replacements extensions thereof; provided, that, the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable by an amount equal to the obligor thereon a reasonable premium or to the Lenders than the Indebtedness being refinanced or extendedother reasonable amount paid, and the average life to maturity thereof is greater than or fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to that of any existing commitments unutilized thereunder and the Indebtedness being refinanced direct or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an any contingent obligor with respect to the Indebtedness being extendedthereto is not changed, renewed as a result of or refinancedin connection with such refinancing, (B) exceed in a principal amount the Indebtedness being renewedrefunding, extended renewal or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromextension;
(c) Indebtedness with in respect to Capital Leases of Capitalized Leases, Synthetic Lease Obligations and purchase money obligations for 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 $15,000,000;
(d) intercompany Indebtedness arising from advances permitted under Section 7.03 (“Intercompany Debt”); provided, that, in the case of Indebtedness owing by a Loan Party to a Subsidiary that is not a Loan Party (i) such Indebtedness shall be subordinated prior to the Secured Obligations in a manner and to an extent reasonably acceptable to the Administrative Agent and (ii) such Indebtedness shall not be prepaid unless no Default exists immediately prior to or after giving effect to such prepayment;
(e) Guarantees in respect of Indebtedness otherwise permitted under this Section 7.02;
(f) Indebtedness of any Person that becomes a Subsidiary after the Closing Date in a transaction permitted hereunder in an aggregate principal amount not to exceed $1,000,000 in the aggregate at any time outstanding5,000,000; provided that any provided, that, such Indebtedness (x) is existing at the time such Person becomes a Subsidiary and was not incurred solely in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence contemplation of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetPerson’s becoming a Subsidiary;
(dg) the SBA PPP Loan;
obligations (econtingent or otherwise) Indebtedness in respect of existing or arising under any Swap Contracts designed to hedge against interest ratesContract, foreign exchange rates provided, that, (i) such obligations are (or commodities pricing risks incurred were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates and (ii) such Swap Contract does not for speculative purposes;
(f) Indebtedness incurred by contain any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in provision exonerating the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or selfnon-insurance or other Indebtedness with respect defaulting party from its obligation to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable make payments on outstanding transactions 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPdefaulting party;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection evidenced by any Loan Party the Note Agreements in an aggregate principal amount not to exceed C$24,180,908; provided, that, such Indebtedness is subject to the ordinary course of businessIntercreditor Agreement;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02under Secured Cash Management Agreements; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;and
(j) other unsecured Indebtedness (other than for borrowed money) that may be deemed not contemplated by the above provisions in an aggregate principal amount not to exist pursuant to exceed $5,000,000 at any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have time outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Radiant Logistics, Inc), Credit Agreement (Radiant Logistics, Inc)
Indebtedness. Create(a) The Borrowers will not, and will not permit any of their Subsidiaries to, create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, except other than, without duplication, the following, without duplication (which constitutes “Permitted Indebtedness”)::
(ai) Obligations Indebtedness in respect of the Loan Parties under the Loan DocumentsLoans and other Obligations;
(bii) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on until the date of this Agreement and the initial Borrowing, Indebtedness identified in Item 8.2.6(a)(ii) (ii"Indebtedness to be Paid") refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromDisclosure Schedule;
(ciii) Indebtedness with respect to Capital Leases and purchase money existing as of the Effective Date which is identified in Item 8.2.6(a)(iii) ("Ongoing Indebtedness") of the Disclosure Schedule;
(iv) Indebtedness in an aggregate principal amount not to exceed $1,000,000 in the aggregate 10,000,000 at any time outstanding; provided that outstanding which is incurred by any such Indebtedness (x) in the case Borrower or any of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject its Subsidiaries to such additional Capital Leases or acquired asset in connection with the incurrence a vendor of any assets to finance its acquisition of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetassets;
(dv) the SBA PPP Loan;
(e) unsecured Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business (including open accounts extended by suppliers on normal trade terms in connection with purchases of goods and not for speculative purposesservices, but excluding Indebtedness incurred through the borrowing of money or Contingent Liabilities);
(fvi) Indebtedness incurred by any Loan Party in respect of letters Capitalized Lease Liabilities in amounts not in excess of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims$10,000,000 at any time outstanding;
(gvii) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPSubordinated Debt;
(hviii) other Indebtedness consisting of guarantees resulting from endorsement the Borrowers and their Subsidiaries in an aggregate amount not to exceed $10,000,000; and
(ix) other Indebtedness, provided that the net proceeds of negotiable instruments for collection by any Loan Party such other Indebtedness are used to repay, on a pro rata basis, Indebtedness under this Agreement and the Companion Agreement, and further provided, that the Commitments under this Agreement and the Commitments (as defined in the ordinary course Companion Agreement) shall be reduced, on a pro rata basis, by the amount of business;the net proceeds in excess of $50,000,000 of such other Indebtedness; provided, however, that no Indebtedness otherwise permitted by clauses (iv), (v), (vi), (vii), (viii) or (ix) shall be permitted if, after giving effect to the incurrence thereof, any Default shall have occurred and be continuing.
(b) ▇▇▇▇▇▇▇ shall not permit any Indebtedness of any of its Subsidiaries to exist except:
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and ▇▇▇▇▇▇▇ or another Subsidiary; and
(ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party in an amount which, when added to the extent such amount of Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be of ▇▇▇▇▇▇▇ subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness Liens (other than for borrowed moneyLiens described in Sections 8.2.2(b) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business and (c)), shall not exceed 15% of the Loan Parties;
(k) Indebtedness in respect sum of the convertible notes; provided that, all such total Indebtedness in respect of ▇▇▇▇▇▇▇ and its Subsidiaries and the convertible notes shall be unsecured Net Worth of ▇▇▇▇▇▇▇ and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentSubsidiaries.
Appears in 2 contracts
Sources: Credit Agreement (Simpson Industries Inc), Credit Agreement (Simpson Industries Inc)
Indebtedness. Create, incur, assume or suffer to exist exist, or ------------ otherwise become or be liable in respect of any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):Indebtedness except:
(a1) Obligations of the Loan Parties under the Loan DocumentsThe Obligations;
(b2) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals Trade debt or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks accounts payable incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including paid within sixty (60) days after the same has become due and payable or which is being contested in respect good faith, provided provision is made to the reasonable satisfaction of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsthe Administrative Agent for the eventual payment thereof in the event it is found that such contested trade debt is payable by the Companies;
(g3) Indebtedness secured by Liens permitted under Paragraph 8(a) above;
(4) Indebtedness which is unsecured;
(5) Indebtedness incurred by any Loan Party in respect of accounts payable pursuant to trade creditors for goods repurchase and services and current operating liabilities (not gestation financing agreements, whether such Indebtedness is shown on the result books of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPCompanies as a sale or as a financing;
(h6) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection which is by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and its terms subordinated in right of payment to the payment Obligations and which is evidenced by instruments and agreements in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is form and content reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent;
(7) Indebtedness attributable to collateralized mortgage obligations of the Companies or any Affiliate thereof;
(8) Indebtedness incurred pursuant to additional financing secured by Construction Loans (as defined in the Facility II Agreement) of the type which serve as Collateral for the Tranche D Facility (as defined in the Facility II Agreement); provided, however, that the Companies may -------- ------- not enter into any such financing arrangement, nor incur additional outstanding Indebtedness under any such existing financing arrangement, at any time when the amount of availability under the Tranche D Facility equals or exceeds the amount of additional Indebtedness sought to be incurred;
(9) Permitted Other Debt; and
(10) Indebtedness not specifically referred to above but reflected in the financial statements referred to in Paragraph 8(a) above, and extensions, renewals, and refinancings of such Indebtedness.
Appears in 2 contracts
Sources: Credit Agreement (CWM Mortgage Holdings Inc), Credit Agreement (CWM Mortgage Holdings Inc)
Indebtedness. CreateEach of Parent and the Borrower will not, and will not permit any of its Restricted Subsidiaries to, incur, create, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) the Loans and any other Obligations and any guaranty of or suretyship arrangement for the Loan Parties under the Loan DocumentsLoans or any other Obligations;
(b) Surviving Indebtedness listed (including unfunded commitments) existing on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for the Effective Date that is reflected in the agreements evidencing financial statements of Parent for the Fiscal Year ended December 31, 2014 or disclosed in Schedule 9.01 and any such Permitted Refinancing Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions respect of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding foregoing described in this clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromb);
(c) Indebtedness in respect of the Initial Senior Notes and any Permitted Refinancing Indebtedness in respect of any of the foregoing, provided that the aggregate outstanding principal amount of such Initial Senior Notes or any Permitted Refinancing Indebtedness thereof shall not exceed $600,000,000 in the aggregate at any time;
(d) accounts payable (for the deferred purchase price of Property or services) from time to time incurred in the ordinary course of business which, if greater than sixty (60) days past due, (i) are being contested in good faith by appropriate proceedings if reserves adequate under GAAP shall have been established therefor or (ii) do not exceed $25,000,000 in the aggregate outstanding at any time;
(e) Indebtedness under Hedging Agreements which are for bona fide business purposes and are not speculative;
(f) other unsecured Indebtedness of the Borrower and any Guarantor (other than any ABS Subsidiary); provided that (i) no Default or Event of Default exists and is continuing immediately before and immediately after giving pro forma effect to the incurrence of such Indebtedness, (ii) the maturity of such Indebtedness is at least six (6) months after the Maturity Date, (iii) the Weighted Average Life to Maturity of such Indebtedness is greater than the number of years (calculated to the nearest one-twelfth) from the date of incurrence of such Indebtedness to the Maturity Date, (iv) such Indebtedness either (A) has terms substantially similar to those customary in high-yield debt offerings or (B) (1) does not contain financial covenants that are additional to or are more restrictive than those contained herein and (2) in the reasonable judgment of a Financial Officer of the Borrower, does not contain other covenants and events of default that are materially more restrictive, taken as a whole, than those contained herein and (v) Parent is in compliance with the financial covenants set forth in Section 9.10 as of the last day of the most recently ended Testing Period for which financial statements are available after giving pro forma effect to the incurrence of such Indebtedness (calculated as if such Indebtedness was incurred on the last day of such Testing Period);
(g) Indebtedness (other than Indebtedness of any ABS Subsidiary) evidenced by Capital Lease Obligations and Purchase Money Indebtedness; provided that, except for intercompany Capital Leases, in no event shall the aggregate principal amount of Capital Lease Obligations and Purchase Money Indebtedness permitted by this clause (g) exceed the greater of $50,000,000 and an amount equal to 2.5% of Consolidated Net Tangible Assets at any time outstanding;
(h) Indebtedness with respect to Capital Leases surety bonds, appeal bonds, advance payment bonds or customs bonds or associated with deposits, bank guarantees, customs, bids, performance, refund and purchase money surety bonds, standby letters of credit or surety and similar obligations of Parent or any Restricted Subsidiary required in the ordinary course of business or in connection with the enforcement of rights or claims of Parent or any of its Restricted Subsidiaries or in connection with judgments that do not result in a Default or an Event of Default;
(i) Indebtedness assumed by Parent or one of its Restricted Subsidiaries (other than an ABS Subsidiary), and Indebtedness of a Restricted Subsidiary (other than an ABS Subsidiary) acquired, pursuant to an acquisition or merger permitted pursuant to the terms of this Agreement (and extensions, renewals, refundings and refinancings thereof that do not increase the principal thereof except for costs incurring in connection with such extensions, renewals, refundings and refinancings) (provided that upon the incurrence of such Indebtedness, Parent is in pro forma compliance with the financial covenants described in Section 9.10 as of the last day of the most recently ended Testing Period for which financial statements are available after giving pro forma effect to the incurrence of such Indebtedness (calculated as if such Indebtedness was incurred on the last day of such Testing Period)) and any Permitted Refinancing Indebtedness in respect of any of the foregoing described in this clause (i);
(j) other Indebtedness, so long as, immediately after giving effect to the incurrence of any such Indebtedness, the aggregate principal amount of all Indebtedness incurred under this Section 9.01(j) and then outstanding does not exceed the greater of $50,000,000 and an amount equal to 2.5% of Consolidated Net Tangible Assets;
(k) Indebtedness of Parent or any of its Restricted Subsidiaries (other than an ABS Subsidiary) owed to Parent or any of its Restricted Subsidiaries (other than an ABS Subsidiary);
(l) Indebtedness of any Foreign Subsidiary used for such Foreign Subsidiary’s and/or its Foreign Subsidiaries’ working capital and general business purposes, so long as, immediately after giving effect to the incurrence of any such Indebtedness, (i) the aggregate principal amount of all Indebtedness incurred under this Section 9.01(l) and then outstanding does not exceed the greater of $200,000,000 and an amount equal to 7.5% of Consolidated Net Tangible Assets and (ii) the aggregate principal amount of all Indebtedness incurred under this Section 9.01(l) which is other than Non-Recourse Foreign Indebtedness and is then outstanding does not exceed the greater of $100,000,000 and an amount equal to 3.5% of Consolidated Net Tangible Assets;
(m) Indebtedness with respect to ABS Facilities (not including any Indebtedness permitted by Section 9.01(n)) subject to an intercreditor agreement satisfactory to the Administrative Agent, in an aggregate principal amount not to exceed $1,000,000 in the aggregate 100,000,000 at any time outstanding; provided that neither the Borrower nor any Domestic Subsidiary other than the ABS Subsidiaries is liable for such Indebtedness;
(n) Indebtedness of any ABS Subsidiary owing to Parent or any of its Restricted Subsidiaries (xother than an ABS Subsidiary) not to exceed the amount in Section 9.03(e);
(o) Indebtedness of any ABS Subsidiary owing to any other ABS Subsidiary;
(p) guarantees by a Loan Party of Indebtedness of any other Loan Party; provided that the case Indebtedness so guaranteed is permitted under any of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with Sections 9.01(a) through (o);
(q) Indebtedness consisting of Specified Contingent Obligations (provided that upon the incurrence of such Indebtedness, Parent is in pro forma compliance with the financial covenants described in Section 9.10 as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect last day of the most recently ended Testing Period for which financial statements are available after giving pro forma effect to the incurrence of such asset;Indebtedness (calculated as if such Indebtedness was incurred on the last day of such Testing Period)); and
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(fr) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability to finance insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred premiums in the ordinary course of business in accordance with customary terms and paid within an aggregate principal amount not to exceed the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion amount of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentinsurance premiums.
Appears in 2 contracts
Sources: Credit Agreement (Exterran Corp), Credit Agreement (Exterran Holdings Inc.)
Indebtedness. CreateNeither the Borrower nor any of its Subsidiaries shall directly or indirectly create, incur, assume or suffer otherwise become or remain directly or indirectly liable with respect to, or permit to exist exist, any Indebtedness, except the followingIndebtedness which, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations when aggregated with Total Adjusted Outstanding Indebtedness of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b)Borrower, but would not any extensions, renewals or replacements of such Indebtedness except exceed (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date sixty percent (60%) of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedCapitalization Value, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, however, that, in connection with a portfolio acquisition, for the six (6) consecutive quarters after such acquisition, Total Adjusted Outstanding Indebtedness permitted under the immediately preceding clause may exceed sixty percent (i60%) of Capitalization Value, but in no event exceed sixty-five percent (65%) of Capitalization Value, or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases Secured Indebtedness of the Consolidated Businesses and the Borrower’s proportionate share (determined in accordance with GAAP) of Secured Indebtedness of its Minority Holdings, fifty percent (50%) of the Capitalization Value. In addition, neither the Borrower nor any of its Subsidiaries shall create, incur, assume or purchase otherwise become liable for, directly or indirectly, or permit to exist, Indebtedness for borrowed money Indebtednessfrom the General Partner, unless such Indebtedness is unsecured and expressly subordinated to the payment of the Obligations. For purposes of Section 10.1 only, (i) Total Adjusted Outstanding Indebtedness shall be secured adjusted by deducting therefrom an amount equal to the asset subject lesser of (x) Indebtedness that by its terms is scheduled to such additional Capital Leases mature on or acquired asset in connection with before the incurrence date that is 24 months from the date of such calculation (“Maturing Indebtedness, as the case may be”), and (y) in the case of purchase money IndebtednessUnrestricted Cash, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness Capitalization Value shall be evidenced adjusted by promissory notes deducting therefrom Cash and all such notes shall be subject to a first priority Lien pursuant to Cash Equivalents and adding back the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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 caseamount, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided thatif any, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured by which Unrestricted Cash exceeds Maturing Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.0310.1(ii) only, all Obligations outstanding under (i) Secured Indebtedness shall be adjusted by deducting therefrom an amount equal to the Loan Documents will be deemed lesser of (x) Secured Indebtedness that by its terms is scheduled to have been incurred in reliance only mature on or before the exception in clause (a) date that is 24 months from the date of calculation of this Section 7.03. Notwithstanding anything to covenant (“Maturing Secured Indebtedness”), and (y) Unrestricted Cash, and (ii) Capitalization Value shall be adjusted by deducting therefrom Cash and Cash Equivalents and adding back the contrary hereinamount, no Loan Party shall have outstandingif any, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentby which Unrestricted Cash exceeds Maturing Secured Indebtedness.
Appears in 2 contracts
Sources: Credit Agreement (Simon Property Group L P /De/), Credit Agreement (Simon Property Group L P /De/)
Indebtedness. CreateThe Borrower will not, directly or indirectly, create, incur, assume assume, guaranty, or suffer to exist otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations Indebtedness of the Loan Parties Borrower under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements that is subordinated to the Obligations of such Indebtedness except (i) renewals and extensions expressly the Borrower pursuant to the Subordination Agreement; provided for in the agreements evidencing that any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable shall be owed exclusively to the obligor thereon or to partners in the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromBorrower;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in otherwise permitted by this Section, provided that the aggregate sum (without duplication) outstanding at any time outstanding; provided that any such Indebtedness of (xi) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence aggregate principal amount of such Indebtedness, as (ii) the case may beaggregate amount of Contingent Obligations permitted by Section 5.17(c), (iii) the aggregate amount secured by Liens permitted by Section 5.15(i) and (yiv) in the case aggregate unrecovered amount of purchase money IndebtednessInvestments under Section 5.16(f), shall constitute not less than 75% of the aggregate consideration paid with respect to such assetexceed $84,000,000;
(d) the SBA PPP LoanIndebtedness secured by Liens permitted by Section 5.15(i);
(e) Tax Indebtedness in respect not otherwise permitted, provided that such Indebtedness has a weighted average life to maturity greater than the then remaining weighted average life to maturity of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposesTerm Loans;
(f) Indebtedness incurred by any Loan Party under the Additional Credit Facility in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect an aggregate principal amount not to reimbursement-type obligations regarding workers compensation claims;exceed $50,000,000; and
(g) Indebtedness incurred by any Loan Party arising from a Qualifying Debt Incurrence; provided, in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result case of the borrowing incurrence of moneyany Indebtedness under subsection (e) incurred or (g) above, that simultaneously with the incurrence of such Indebtedness an amount not less than the amount of the proceeds thereof, net of costs in connection with the issuance thereof, this Amendment No. 4 and the Additional Credit Agreement and, in the ordinary course case of business in accordance with customary terms and paid within the specified timesubsection (g) above, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness net of (ix) any Loan Party owing up to any other Loan Party $50,000,000 required to prepay the Fleet Agreement and the First Union Agreement and (iiy) Indebtedness owed at the election of the Borrower, cash retained by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party it to the extent necessary to increase its aggregate cash and cash equivalents, as of the Amendment No. 4 Effective Date and after giving effect to the transactions on such Indebtedness date, by an amount not exceeding $50,000,000 (plus the aggregate amount of Scheduled Amortization of the Term Loans actually paid subsequent to December 31, 2002 and prior to the Amendment No. 4 Effective Date), is permitted applied as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full optional prepayment of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;Term Loans.
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment Section 5.18 is amended to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent read in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.entirety as follows:
Appears in 2 contracts
Sources: Credit Agreement (Universal City Development Partners LTD), Credit Agreement (Universal City Development Partners LTD)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations obligations (contingent or otherwise) of the Loan Parties Borrower existing or arising under any Swap Contract; provided that (A) such obligations are (or were) entered into by such Person in the Loan Documentsordinary 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 (B) 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;
(b) Surviving unsecured Indebtedness listed on Schedule 7.03(b)of a Subsidiary of the Borrower owed to the Borrower or a wholly-owned Subsidiary of the Borrower, but not any extensions, renewals or replacements of such which Indebtedness except shall (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases Indebtedness owed to a Loan Party, constitute “Pledged Debt” under the Security Agreement or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such IndebtednessCanadian Security Agreement, as the case may be, (ii) be on terms (including subordination terms) acceptable to the Administrative Agent and (iii) be otherwise permitted under the provisions of Section 7.03;
(c) (i) Indebtedness under the Loan Documents; and (ii) Indebtedness under the Second Amended and Restated Credit Agreement not to exceed $360,000,000 at any one time outstanding; provided that the total Indebtedness incurred pursuant to this clause (c) shall not exceed $560,000,000 at any one time outstanding; provided further, however, that notwithstanding the foregoing provisions of this clause (c), the Borrower and its Subsidiaries may incur Indebtedness under the Loan Documents and the Second Amended and Restated Credit Agreement in an aggregate amount in excess of $560,000,000 (and, for the avoidance of doubt, Indebtedness under the Second Amended and Restated Credit Agreement in excess of $360,000,000) so long as (A) immediately after giving effect to the incurrence of such Indebtedness, Holdings and its Subsidiaries shall have a Consolidated First Lien Leverage Ratio calculated on a Pro Forma Basis, as determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b), as applicable, less than 2.25 to 1.0, (B) after giving effect to the incurrence of such Indebtedness, the sum of (x) the Aggregate Commitments and (y) the aggregate outstanding principal amount of the Term Loans shall not exceed the Maximum First Lien Principal Indebtedness (as defined in the case Intercreditor Agreement), (C) any such Indebtedness in excess of purchase money Indebtedness, $560,000,000 shall constitute not less than 75% be used solely to finance all or a portion of the aggregate consideration paid with respect to purchase price of any Acquisition permitted under Section 7.03 and related fees, costs and expenses, and (D) no Default exists immediately prior to, or would result from, the issuance or incurrence of such assetIndebtedness;
(d) Indebtedness (excluding Indebtedness permitted to be incurred under Section 7.02(k)) outstanding on the SBA PPP LoanClosing Date and listed on Schedule 7.02 and any refinancings, refundings, renewals or extensions of such Indebtedness or of Indebtedness permitted under Section 7.02(g); provided that (i) no Default shall have occurred and be continuing or would result from any such refinancing, refunding, renewal or extension on a Pro Forma Basis, (ii) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and any accrued and unpaid interest thereon, (iii) the direct or any contingent obligor with respect thereto is not changed as a result of or in connection with such refinancing, refunding, renewal or extension, and (iv) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(e) Indebtedness Guarantees of Holdings, the Borrower, or any Subsidiary in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates Indebtedness otherwise permitted hereunder of the Borrower or commodities pricing risks incurred in the ordinary course any of business and not for speculative purposesits Subsidiaries;
(f) Indebtedness incurred by any Loan Party in respect of letters Capitalized Leases, Synthetic Lease Obligations, Synthetic Debt and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.01(i); provided, however, that the aggregate amount of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other all such Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsat any one time outstanding shall not exceed $25,000,000;
(g) Indebtedness incurred by of any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result Person that becomes a Subsidiary of the borrowing of money) incurred in Borrower after the ordinary course of business Closing Date in accordance with customary the terms and paid within of Section 7.03(h), which Indebtedness is existing at the specified time, unless contested time such Person becomes a Subsidiary of the Borrower (other than Indebtedness incurred in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting contemplation of guarantees resulting from endorsement such Person’s becoming a Subsidiary of negotiable instruments for collection by any Loan Party in the ordinary course of businessBorrower);
(i) Indebtedness of any Subsidiary that is not a Loan Party owing to any other Subsidiary that is not a Loan Party and (ii) other Indebtedness of Subsidiaries which are not Loan Parties in an aggregate principal amount not to exceed $5,000,000 at any time outstanding;
(i) other Indebtedness in any aggregate amount of up to $25,000,000 which may be secured by Liens permitted under Section 7.01(k);
(j) other unsecured Indebtedness, provided that (A) no Default exists immediately prior to, or would result from, on a Pro Forma Basis, the incurrence of such Indebtedness, (B) no portion of such Indebtedness is scheduled to be paid (either at maturity or as amortization or as a mandatory prepayment (except, in the case of the initial Unsecured Term Loan Facility only, any mandatory prepayments thereunder that are paid only after any mandatory prepayments then due and payable hereunder are satisfied) prior to 91 days after the Maturity Date of any Revolving Loan hereunder, (C) such Indebtedness is not Indebtedness of Holdings to the Borrower or any of its Subsidiaries, (D) the material terms and conditions of such Indebtedness are not more restrictive than the terms and conditions of this Agreement, (E) immediately after giving effect to such incurrence, Holdings and its Subsidiaries shall have a Consolidated Leverage Ratio that is 0.25 less than the level set forth in Section 7.11 of the Second Amended and Restated Credit Agreement (as in effect on the Closing Date) (i.e., if the level set forth is 6.00 to 1.00 the required level under this clause (j) shall be 5.75 to 1.00) on a Pro Forma Basis, such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) and (F) if such Indebtedness is subordinated Indebtedness, such Indebtedness is subordinated in right of payment to the Obligations pursuant to terms of subordination in form and substance acceptable to the Administrative Agent;
(k) Indebtedness evidenced by the Senior Notes and the Second Lien Notes in each case outstanding on the Closing Date;
(l) Indebtedness issued as consideration for all or any portion of the purchase price of any Acquisition permitted under Section 7.03(h), provided that (A) no Default exists immediately prior to, or would result from, on a Pro Forma Basis, the incurrence of such Indebtedness, (B) such Indebtedness is not Indebtedness of a Loan Party owing to any other Loan Party and (C) the aggregate amount of such Indebtedness shall not exceed $20,000,000;
(m) any refinancings, refundings, renewals or extensions of the Unsecured Term Loan Facility in whole or in part; provided that (i) no Default shall have occurred and be continuing or would result from any such refinancing, refunding, renewal or extension on a Pro Forma Basis, (ii) Indebtedness owed by the Borrower shall be in compliance with the financial covenant set forth in Section 7.11 of the Second Amended and Restated Credit Agreement (as in effect on the Closing Date) on a Subsidiary that is not a Guarantor Subsidiary Pro Forma Basis after giving effect to any Loan Party to such refinancing, refunding, renewal or extension, (iii) the extent amount of such Indebtedness is permitted as not increased at the time of such refinancing, refunding, renewal or extension except by an Investment pursuant amount equal to Section 7.02; provideda reasonable premium or other reasonable amount paid, thatand fees and expenses reasonably incurred, in each case connection with such refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder and any accrued and unpaid interest thereon, (Aiv) all the direct or any contingent obligor with respect thereto is not changed as a result of or in connection with such refinancing, refunding, renewal or extension, (v) such refinancing, refunding, renewing or extending Indebtedness shall be evidenced by promissory notes does not contain any mandatory prepayments or amortization and all the terms relating to principal amount, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such notes shall be subject to a first priority Lien pursuant refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to Loan Parties or the payment in full of the Obligations pursuant to Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and (vi) the interest rate and yield (as reasonably measured by the Borrower in a manner acceptable to the Administrative Agent) applicable promissory notes or an intercompany subordination agreement that in to any such caserefinancing, is refunding, renewing or extending Indebtedness does not exceed the interest rate or yield (as reasonably satisfactory measured by the Borrower in a manner acceptable to the Collateral Administrative Agent;), respectively, applicable to the Indebtedness being refinanced, refunded, renewed or extended; and
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(kn) Indebtedness issued or incurred from time to time in respect of the convertible notesSecond Lien Notes after the Closing Date or other Indebtedness secured by Liens on the Collateral that are junior to the Liens securing the Obligations (including, without limitation, Permitted Additional Pari Passu Obligations (as defined in the Second Lien Notes Indenture)); provided thatprovided, all that (x) immediately after giving effect to such issuance or incurrence, Holdings and its Subsidiaries shall have a Consolidated Secured Debt Ratio not greater than 4.5 to 1.0, (y) no Default exists immediately prior to, or would result from, on a Pro Forma Basis, the incurrence of such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parentz) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder in compliance with the terms and expressly subordinated to conditions of the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentIntercreditor Agreement.
Appears in 1 contract
Sources: Credit Agreement (Cenveo, Inc)
Indebtedness. CreateCompany shall not permit its Subsidiaries which are not Subsidiary Guarantors to, directly or indirectly, create, incur, assume or suffer guaranty, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness in excess of an aggregate amount equal to exist any Indebtedness15% of Consolidated Net Worth of Company as of the last day of the most recently ended Fiscal Quarter for all such non-Subsidiary Guarantors, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;for:
(i) Indebtedness existing on the date hereof and set forth in Schedule 7.1 and any refinancing, extension or renewals thereof to the extent the principal amount of such Indebtedness is not increased (i) any Loan Party owing except by an amount equal to any the unpaid accrued interest and premium thereon or other Loan Party amounts paid, and fees and expenses incurred, in connection with such refinancing, extension or renewal), and neither the final maturity nor the weighted average life to maturity of such Indebtedness is decreased;
(ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary under intercompany loans made to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced Subsidiary by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes Company or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral AgentSubsidiary;
(jiii) unsecured Indebtedness up to an aggregate of $750.0 million incurred in connection with a Permitted Receivables Transaction;
(other than for borrowed moneyiv) that Indebtedness which may be deemed to exist pursuant with respect to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan PartiesHedge Agreements;
(kv) Indebtedness that may exist in respect of the convertible notes; provided that, all deposits or payments made by customers or clients of such Subsidiaries;
(vi) Indebtedness owed in respect of any netting services, overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds;
(vii) Indebtedness up to an aggregate of $200,000,000 incurred in connection with or as a component of the convertible notes shall be unsecured purchase price of any property or that was existing on any property or any Person acquired by such Subsidiary at the time of acquisition thereof and subordinated assumed in right of payment to the payment in full connection with such acquisition (other than Indebtedness issued in connection with, or in anticipation of, such acquisitions), and any payment as a result of refinancing, extension or renewals thereof to the conversion extent the principal amount of such convertible notes into Equity Interests of Parent) Indebtedness is not increased (except by an amount equal to the Obligations;
(l) unpaid accrued interest and premium thereon or other unsecured Indebtednessamounts paid, provided that and fees and expenses incurred, in connection with such refinancing, extension or renewal), and neither the final maturity nor the weighted average life to maturity of such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateis decreased; and
(mviii) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been Indebtedness incurred in reliance only on connection with any Debt Offering that reduces the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentCommitments hereunder.
Appears in 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist exist, directly or indirectly, any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except
(a) Obligations of Indebtedness incurred under this Agreement and the Loan Parties under the other Loan Documents;
(b) Surviving (i) Indebtedness outstanding on the Closing Date and listed on Schedule 7.03(b6.01(b), but (ii) refinancings or renewals thereof; provided that (A) any such refinancing Indebtedness is in an aggregate principal amount not greater than the aggregate principal amount of the Indebtedness being renewed or refinanced, plus the amount of any extensionspremiums required to be paid thereon and reasonable fees and expenses associated therewith, renewals (B) such refinancing Indebtedness has a later or replacements equal final maturity and longer or equal weighted average life than the Indebtedness being renewed or refinanced and (C) the covenants, events of default, subordination and other provisions thereof (including any guarantees thereof) shall be, in the aggregate, no less favorable to the Lenders than those contained in the Indebtedness being renewed or refinanced, and (iii) Indebtedness under the Second Lien Notes issued on the Closing Date and any related guarantees (including any notes and guarantees issued in exchange therefor in accordance with the registration rights document entered into in connection with the issuance of such Second Lien Notes and any related guarantees) and any refinancing or renewal of such Second Lien Notes (together with any notes and guarantees issued in exchange for such refinancing or renewed Indebtedness except (i) renewals and extensions expressly in accordance with any registration rights agreement entered into in connection therewith); provided for in the agreements evidencing that any such Indebtedness refinancing or renewal of such Second Lien Notes shall (A) be used solely to refinance (including the payment of premium, accrued and unpaid interest and fees and expenses in connection therewith) and replace such Second Lien Notes in full, (B) be in an aggregate principal amount not to exceed $180 million, (C) be subject to the terms of the Intercreditor Agreement and (D) contain terms and conditions no worse for the Secured Parties or the Loan Parties than those of such Second Lien Notes as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromClosing Date;
(c) Indebtedness under Hedging Obligations with respect to Capital Leases and purchase money Indebtedness interest rates, foreign currency exchange rates or commodity prices, in an amount each case not to exceed $1,000,000 in the aggregate at any time outstandingentered into for speculative purposes; provided that any if such Hedging Obligations relate to interest rates, (i) such Hedging Obligations relate to payment obligations on Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall otherwise permitted to be secured incurred by the asset subject to such additional Capital Leases or acquired asset in connection with Loan Documents and (ii) the incurrence notional principal amount of such Indebtedness, as Hedging Obligations at the case may be, and (y) in time incurred does not exceed the case of purchase money Indebtedness, shall constitute not less than 75% principal amount of the aggregate consideration paid with respect Indebtedness to which such assetHedging Obligations relate;
(d) the SBA PPP LoanIndebtedness permitted by Section 6.04(f);
(e) Indebtedness in respect of Swap Contracts designed Purchase Money Obligations and Capital Lease Obligations, and refinancings or renewals thereof, in an aggregate amount not to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposesexceed $10.0 million at any time outstanding;
(f) Indebtedness incurred by Foreign Subsidiaries in an aggregate amount not to exceed $5.0 million at any Loan Party time outstanding;
(g) Indebtedness in respect of letters bid, performance or surety bonds, workers’ compensation claims, self-insurance obligations and bankers acceptances issued for the account of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created 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 Loan Party in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsotherwise permitted under this Section 6.01;
(gi) Attributable Indebtedness resulting from Sale and Leaseback Transactions incurred by any Loan Party in respect an aggregate amount not to exceed $5.0 million at any time outstanding, and refinancing or renewals thereof;
(j) Indebtedness arising from the honoring by a bank or other financial institution of accounts payable to trade creditors for goods and services and current operating liabilities a check, draft or similar instrument inadvertently (not except in the result case of the borrowing of moneydaylight overdrafts) incurred drawn against insufficient funds in the ordinary course of business in accordance with customary terms and paid business; provided, however, that such Indebtedness is extinguished within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPfive Business Days of incurrence;
(hk) Indebtedness consisting of guarantees resulting from arising in connection with endorsement of negotiable instruments for collection by any Loan Party deposit in the ordinary course of business;
(l) [Intentionally Omitted];
(i) Indebtedness consisting of additional Second Lien Notes and any related guarantees after the Closing Date; provided, that (iA) the Consolidated Net Leverage Ratio (as defined in the Second Lien Indenture as in effect on the date hereof) as of the date of incurrence of such Indebtedness after giving pro forma effect thereto is equal to or less than 4.00 to 1.00, (B) such additional Second Lien Notes and the Liens securing such additional Second Lien Notes shall be subject to the Intercreditor Agreement and (C) the entire net proceeds of such Indebtedness are used to Retire Parent Debt (including the payment of premium, accrued and unpaid interest and fees and expenses in connection therewith) in accordance with the provisions hereof, together with any Loan Party owing to notes and guarantees issued in exchange for such additional Second Lien Notes in accordance with any other Loan Party registration rights agreement entered into in connection therewith; and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to refinancings or renewals thereof (together with any Loan Party to the extent notes and guarantees issued in exchange for such Indebtedness is permitted as an Investment pursuant to Section 7.02in accordance with any registration rights agreement entered into in connection therewith); provided, that, in each case provided that any such refinancing or renewal of such additional Second Lien Notes shall (A) all be used solely to refinance and replace such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority additional Second Lien pursuant to the Collateral Documents and Notes in full, (B) all such Indebtedness shall be unsecured and subordinated in right of payment an aggregate principal amount not to exceed the principal amount (plus the payment of premium, accrued and unpaid interest and fees and expenses in full connection therewith) of the Obligations pursuant Second Lien Notes being refinanced, (C) be subject to the terms of the applicable promissory notes Intercreditor Agreement and (D) contain terms and conditions no worse for the Secured Parties or an intercompany subordination agreement that the Loan Parties than those of such additional Second Lien Notes as in any effect on the date of incurrence of such case, is reasonably satisfactory to the Collateral Agentadditional Second Lien Notes;
(ji) Indebtedness consisting of new unsecured notes or any other new unsecured Indebtedness; provided, that (A) the Consolidated Net Leverage Ratio (as defined in the Second Lien Indenture as in effect on the date hereof) as of the date of incurrence of such Indebtedness after giving pro forma effect thereto is equal to or less than 5.00 to 1.00, and (B) the entire net proceeds of such Indebtedness are used to Retire Parent Debt (including the payment of premium, accrued and unpaid interest and fees and expenses in connection therewith) in accordance with the provisions hereof, together with any notes and guarantees issued in exchange therefor in accordance with any registration rights agreement entered into in connection therewith; and (ii) refinancings or renewals thereof; provided that any such refinancing or renewal of such additional unsecured Notes or other unsecured Indebtedness shall (other than A) replace such additional unsecured Indebtedness in full and (B) contain terms and conditions no worse for borrowed money) that may be deemed to exist pursuant to any bona fide warranty the Secured Parties or contractual service obligations or performance in the ordinary course of business of the Loan PartiesParties than those of such additional unsecured Indebtedness as in effect on the date of incurrence of such additional unsecured Indebtedness;
(ko) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity DateLoan Party under any Treasury Services Agreement; and
(mp) the 2021 Preferred Stock on terms reasonably acceptable other Indebtedness of any Company in an aggregate amount not to the Administrative Agent in its sole discretion. For purposes exceed $25.0 million at any time outstanding; provided that except for up to $5.0 million of determining compliance with Attributable Indebtedness resulting from Sale and Leaseback Transactions, all Indebtedness incurred and outstanding under this Section 7.03, all Obligations outstanding under the Loan Documents will 6.01(p) shall be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentunsecured.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness listed on of the Parent and its Restricted Subsidiaries existing as of the First Amendment Effective Date and set forth in Schedule 7.03(b), but not 8.03 and any extensionsrefinancings, renewals or replacements and extensions thereof; provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except (i) renewals by an amount equal to a reasonable premium or other reasonable amount paid, and extensions expressly provided for fees and expenses reasonably incurred, in the agreements evidencing connection with such refinancing or extension and by an amount equal to any such Indebtedness as the same are in effect on the date of this Agreement existing commitments unutilized thereunder, and (ii) refinancings the terms relating to principal amount, amortization, maturity, collateral (if any) and extensions subordination (if any), and other material terms taken as a whole, of any such Indebtedness if the terms and conditions thereof refinancing, renewal or extension are not no less favorable in any material respect to the obligor thereon Loan Parties and their Restricted Subsidiaries or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that terms of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extendedrefinanced, renewed or refinanced, extended (B) exceed in it being acknowledged that the interest rate thereon may be increased to a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrommarket rate);
(c) intercompany Indebtedness permitted under Section 8.02; provided that in the case of Indebtedness owing by a Loan Party to a Subsidiary that is not a Loan Party, (i) such Indebtedness shall be subordinated to the Obligations in a manner and to an extent reasonably acceptable to the Administrative Agent and (ii) such Indebtedness shall not be prepaid unless no Default exists immediately prior to or after giving effect to such prepayment;
(d) obligations (contingent or otherwise) of any Borrower or any Restricted 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 associated with respect 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 Capital Leases and make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness (including obligations in respect of Capital Leases or Synthetic Leases) hereafter incurred by any Borrower or any of its Restricted Subsidiaries to finance the purchase of fixed assets, and renewals, refinancings and extensions thereof, provided that (i) the total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of $100,000,000 at any one time outstanding; (ii) such Indebtedness when incurred shall not to 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 under the Senior Notes in a maximum principal amount of $1,000,000 350,000,000 in the aggregate at any one time outstandingoutstanding and any refinancing, renewal or extension thereof so long as (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees, commissions, discounts (including original issue discount) and expenses reasonably incurred, in connection with such refinancing or extension, by an amount equal to accrued and unpaid interest on, and premiums on, the Indebtedness so refinanced, renewed or extended, and by an amount equal to any existing commitments unutilized thereunder, (ii) the maturity date of such Indebtedness shall be at least 181 days after the latest maturity of any Loans hereunder, (iii) such Indebtedness is not subject to any amortization payments or any mandatory prepayments or sinking fund payments (other than in connection with a change of control, asset sale or event of loss and customary acceleration rights after an event of default) in each case prior to the date at least 181 days after the latest maturity of any Loans hereunder, (iv) unless approved by the Administrative Agent, such Indebtedness is on terms and conditions that are not materially more restrictive, taken as a whole, than the terms and conditions of this Agreement and the other Loan Documents, and (v) the terms relating to principal amount, amortization, maturity, collateral (if any) and other material terms taken as a whole of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Restricted Subsidiaries than the terms of the Senior Notes (it being acknowledged that the interest rate thereon may be increased to a market rate);
(g) any Indebtedness; provided that any (i) both before and after giving effect to the incurrence of such Indebtedness and the application of the proceeds thereof, the Consolidated Net Leverage Ratio is not more than 3.75 to 1.00 and the Parent is otherwise in compliance with the financial covenants in Section 8.11, in each case on a Pro Forma Basis, with such financial covenants recomputed for the four-quarter period for which financial statements been most recently delivered to the Administrative Agent pursuant to Section 7.01(a) or 7.01(b), (xii) in no Default shall exist at the case of additional Capital Leases time of, or purchase money Indebtednesswould result from, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, (iii) the maturity date of such Indebtedness shall be at least 181 days after the latest maturity of any Loans hereunder, (iv) such Indebtedness is not subject to any amortization payments or any mandatory prepayments or sinking fund payments (other than in connection with a change of control, asset sale or event of loss and customary acceleration rights after an event of default) in each case prior to the date at least 181 days after the latest maturity of any Loans hereunder and (v) unless approved by the Administrative Agent, such Indebtedness is on terms and conditions that are not materially more restrictive than the terms and conditions of this Agreement and the other Loan Documents; provided, further that any such Indebtedness may be refinanced, renewed or extended so long as (x) the case may beamount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees, commissions, discounts (including original issue discount) and expenses reasonably incurred, in connection with such refinancing or extension, by an amount equal to accrued and unpaid interest on, and premiums on, the Indebtedness so refinanced, renewed or extended, and by an amount equal to any existing commitments unutilized thereunder and (y) (A) such Indebtedness continues to satisfy the requirements of clauses (iii), (iv) and (v) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
this subsection (g) Indebtedness incurred by and (B) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Party in respect of accounts payable to trade creditors for goods Parties and services and current operating liabilities (not their Restricted Subsidiaries than the result terms of the borrowing of money) incurred in Indebtedness being refinanced, renewed or extended (it being acknowledged that the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPinterest rate thereon may be increased to a market rate);
(h) Subordinated Indebtedness consisting that is subject at all times to subordination pursuant to the provisions of guarantees resulting a Subordination Agreement;
(i) Earn-Out Obligations incurred in connection with Permitted Acquisitions and other Acquisitions permitted pursuant to Section 8.02;
(j) Indebtedness from endorsement of negotiable instruments for collection by any Loan Party to any other Loan Party in connection with the ordinary course operation of the Loan Parties’ cash management system;
(k) [reserved];
(l) Indebtedness of any Borrower or any Restricted Subsidiary existing or arising under any Secured Treasury Management Agreements or other Treasury Management Agreement entered into in the ordinary course of business;
(im) any Guarantee provided by Stemco Products, Inc. in connection with the Stemco ▇▇▇▇▇▇ Ad Valorem Tax Relief Transaction;
(n) Indebtedness of Foreign Subsidiaries in a maximum principal amount of $100,000,000;
(o) reimbursement obligations in respect of surety and appeal bonds, indemnity and performance bonds, letters of credit, bankers’ acceptances and other obligations of a like nature incurred in the ordinary course of business;
(p) other Indebtedness in an aggregate outstanding principal amount not to exceed, at the time of incurrence of any such Indebtedness (and measured after giving effect to the incurrence thereof), the greater of (i) any Loan Party owing to any other Loan Party $100,000,000 and (ii) 6.5% of Consolidated Total Assets as of the most recent fiscal quarter end for which financial statements have been delivered to the Administrative Agent under Section 7.01(a) or 7.01(b) (as reflected in such financial statements for such fiscal quarter end);
(q) Indebtedness owed by existing at the time a Person becomes a Subsidiary or assets are acquired from a Person pursuant to a Permitted Acquisition, provided that is not a Guarantor Subsidiary to any Loan Party to the extent (i) such Indebtedness is permitted was not incurred in connection with, or in contemplation of, such Permitted Acquisition, (ii) neither the Parent nor any Restricted Subsidiary thereof (other than the Person that becomes a Subsidiary as an Investment part of such Permitted Acquisition or acquires assets pursuant to Section 7.02such Permitted Acquisition) shall have any liability or other obligation with respect to such Indebtedness and (iii) the aggregate outstanding principal amount of all such Indebtedness shall not exceed $50,000,000 at any time;
(r) Alternative Incremental Facility Indebtedness; provided, that, (i) the sum of the cumulative aggregate original principal amount of all Alternative Incremental Facility Indebtedness incurred under this Section 8.03(r) plus the cumulative aggregate original principal amount of all Incremental Facilities established under Section 2.01(c) shall not exceed, at the time any such Alternative Incremental Facility Indebtedness is established or issued (and giving effect thereto), the sum of: (A) the greater of (1) $225,000,000 and (2) Consolidated EBITDA for the most recently ended period of four fiscal quarters for which the Borrowers have delivered financial statements pursuant to Section 7.01(a) or (b), plus (B) such additional amount that would not cause the Consolidated Senior Secured Leverage Ratio, calculated on a Pro Forma Basis after giving effect to any such Alternative Incremental Facility Indebtedness, to be greater than 2.50 to 1.00 (which amount under this clause (B) shall be deemed incurred, and the Consolidated Senior Secured Leverage Ratio calculated as aforesaid, prior to giving effect to any substantially concurrent incurrence of Alternative Incremental Facility Indebtedness under the preceding clause (A)); (ii) no Default shall have occurred and be continuing, and no Default would exist after giving effect to any Alternative Incremental Facility Indebtedness, on the date on which such Alternative Incremental Facility Indebtedness is to become effective; (iii) upon giving effect to the incurrence of such Alternative Incremental Facility Indebtedness and the application of the proceeds thereof, the Borrowers would be in compliance with the financial covenants in Section 8.11, in each case (A) all on a Pro Forma Basis, with such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject financial covenants recomputed for the four-quarter period for which financial statements been most recently delivered to a first priority Lien the Administrative Agent pursuant to Section 7.01(a) or 7.01(b), and the Collateral Documents Administrative Agent shall have received a Pro Forma Compliance Certificate demonstrating such compliance; and (Biv) all the Borrower Representative shall have, on the date of incurrence of such Indebtedness shall be unsecured and subordinated in right of payment Alternative Incremental Facility Indebtedness, delivered to the payment in full Administrative Agent a certificate of the Obligations pursuant to the terms of the applicable promissory notes chief financial officer (or an intercompany subordination agreement that in any such case, other financial officer as is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes Agent) of determining compliance with this Section 7.03the Parent, all Obligations outstanding dated such date, confirming the satisfaction of the conditions set forth above and either stating that such incurrence relies solely on utilization of the amount available under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (ai)(A) above or, if that is not the case, setting forth a reasonably detailed calculation of this Section 7.03. Notwithstanding anything the Consolidated Senior Secured Leverage Ratio (calculated on a Pro Forma Basis after giving effect to the contrary hereinAlternative Incremental Facility Indebtedness being incurred) as of such date, no Loan Party which shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations be in a manner and on terms form reasonably satisfactory to the Administrative Agent, and identifying the Alternative Incremental Facility Indebtedness being incurred and specifying that it is being incurred pursuant to this Section 8.03(r);
(s) Guarantees with respect to Indebtedness of any Loan Party permitted under this Section 8.03; provided that if the Indebtedness being Guaranteed is subordinated to the Obligations, such Guarantee shall be subordinated to the Guaranty and the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness; and
(t) Attributable Indebtedness in respect of any Securitization Transaction; provided, that, the aggregate principal amount of all such Indebtedness shall not exceed $100,000,000 at any one time outstanding.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b)of a Loan Party in respect of the Senior Unsecured Notes or the Subordinated Notes, but not and any extensionsguarantee obligations of a Loan Party in respect thereof, renewals or replacements of such Indebtedness except provided (i) renewals the aggregate principal amount of all Senior Unsecured Notes and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and all Subordinated Debt shall not exceed $250,000,000; (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that all of the Indebtedness being refinanced conditions set forth in the definition of “Senior Unsecured Notes” or extended“Subordinated Debt”, as applicable, have been satisfied at the time of issuance; provided, such Indebtedness permitted under the immediately preceding clause and (iiii) or (ii) above shall not (A) include Indebtedness no Default of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in at the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence issuance of such IndebtednessSenior Unsecured Notes or Subordinated Debt, as the case may be, or would exist as a result of such issuance, including, without limitation, with the financial covenants contained herein after giving effect on a pro forma basis to the incurrence of such Indebtedness, and (y) in any Indebtedness incurred to refinance, renew, extend or replace such Senior Unsecured Notes or Subordinated Debt, as the case of purchase money Indebtednessmay be, shall constitute not less than 75% of the aggregate consideration paid in whole or in part provided that, with respect to any such assetrefinancing, renewal, extension or replacement, (a) the weighted average life to maturity of any such Indebtedness shall not be less than the weighted average life to maturity of then outstanding Credit Agreement Obligations if any, or the Senior Unsecured Notes or Subordinated Debt, as the case may be, as in effect on the date of issuance thereof; (b) the maturity of such Indebtedness shall be no less than six months after the Maturity Date; (c) the aggregate principal amount of such Indebtedness shall not exceed the aggregate principal amount of Indebtedness being so refinanced, renewed, extended or replaced (plus all accrued and unpaid interest thereon and all applicable fees, expenses and prepayment premiums directly related thereto; (d) such Indebtedness remains unsecured; and (e) such Indebtedness meets all of the other criteria set forth in the definition of Senior Unsecured Notes or Subordinated Debt, as applicable;
(c) Indebtedness outstanding on the date hereof and listed on Schedule 7.03 and any refinancings, refundings, renewals or extensions thereof; provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(d) the SBA PPP LoanIndebtedness of one Loan Party owing to another Loan Party, so long as both Persons are Loan Parties hereunder, and, in addition, Guarantees of a Loan Party in respect of Indebtedness otherwise permitted hereunder of another Loan Party;
(e) Indebtedness in respect obligations (contingent or otherwise) of the Borrowers or any Subsidiary existing or arising under any Swap Contracts designed to hedge against interest ratesContract, foreign exchange rates provided that (i) such obligations are (or commodities pricing risks incurred 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 speculative purposespurposes 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; and
(f) Indebtedness incurred by any Loan Party in respect of letters of creditcapital leases, bank guarantees, bankers’ acceptances, warehouse receipts Synthetic Lease Obligations and purchase money obligations for fixed or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid capital assets within the specified time, unless contested limitations set forth in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.027.01(i); provided, thathowever, in each case (A) that the aggregate amount of all such Indebtedness at any one time outstanding shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentexceed $5,000,000.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):Indebtedness for Money Borrowed:
(a) Obligations that is Unsecured Debt, except to the extent that:
(i) if such Indebtedness is new Indebtedness that did not exist as of the Closing Date, the Borrower and Consolidated Entities are in compliance with each of the financial covenants set forth in this Agreement both before and after giving effect to the incurrence of such Indebtedness; provided that, upon such incurrence, the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable shall be deemed to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not have (A) include Indebtedness of an obligor that was not an obligor with respect to reaffirmed the Indebtedness being extended, renewed or refinanced, representations and warranties set forth in Section 4.02(a) herein and (B) exceed in made a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any representation that no Default or Event of Default has occurred and is continuing in existence prior to or would will result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any from such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateincurrence; and
(mii) the 2021 Preferred Stock on terms reasonably acceptable aggregate Unsecured Debt of the Loan Parties (including any requested or pending Credit Extension) is less than or equal to the Administrative Agent in its sole discretion. For purposes difference between (A) the sum of determining compliance with this Section 7.03, all Obligations outstanding under (I) the Value of Income Producing Assets wholly owned by the Loan Documents will Parties that are Unencumbered Properties, multiplied by sixty percent (60%) plus (II) the Value of Non-Income Producing Assets wholly owned by the Loan Parties that are Unencumbered Properties and that are not Land Assets, Condominium Assets or Residential Assets, multiplied by sixty percent (60%), plus (III) the Value of Non-Income Producing Assets wholly owned by the Loan Parties that are Unencumbered Properties that are entitled residential Land Assets, Residential Assets or Condominium Assets (provided that the maximum amount of Condominium Assets included in such Value of Non-Income Producing Assets 83862495 prior to being multiplied by the following percentage shall be deemed to have been incurred in reliance only on $100,000,000), multiplied by fifty percent (50%), plus (IV) the exception sum of (a) the value of the items included in clause (a) of this Section 7.03. Notwithstanding anything the definition of “Value of Liquid Assets” (which items are wholly owned by the Loan Parties and not encumbered other than by Permitted Liens described in clauses (a) or (b) of the definition thereof) multiplied by one hundred percent (100%), plus (b) the value of the items included in clauses (b) and (c) of the definition of “Value of Liquid Assets” (which items are wholly owned by the Loan Parties and not encumbered other than by Permitted Liens described in clauses (a) or (b) of the definition thereof) multiplied by fifty percent (50%), less (B) the sum of (I) the amount of incurred and outstanding secured Indebtedness that is recourse to the contrary hereinBorrower and/or Consolidated Entities (not including debt recourse to a single asset entity or customary recourse carve-outs relating to nonrecourse secured Indebtedness) in excess of ten percent (10%) of Total Assets, no Loan Party plus (II) the aggregate amount by which incurred and outstanding secured recourse Indebtedness (of the Borrower and/or Consolidated Entities) exceeds seventy-five percent (75%) of the cost of the underlying individual collateral (that are not Land Assets) securing such Indebtedness, plus (III) the aggregate amount by which incurred and outstanding secured recourse Indebtedness (of the Borrower and/or Consolidated Entities) exceeds fifty percent (50%) of the cost of the underlying individual Land Assets securing such Indebtedness; provided that (y) to the extent the sum of the amounts calculated pursuant to subclauses (A)(II), (A)(III) and (A)(IV) above constitutes more than twenty percent (20%) of the total of the amount calculated pursuant to subclauses (A)(I), (A)(II), (A)(III) and (A)(IV) of this clause (a)(ii), such amount shall have outstandingbe reduced to the extent required to cause the amount calculated pursuant to such subclauses (A)(II), create (A)(III) and (A)(IV) to equal twenty percent (20%) of the total of the amount calculated pursuant to subclauses (A)(I), (A)(II), (A)(III) and (A)(IV) of this clause (a)(ii), and (z) to the extent the amount calculated pursuant to subclause (A)(III) above constitutes more than five percent (5%) of the total of the amount calculated pursuant to subclauses (A)(I), (A)(II), (A)(III) and (A)(IV) of this clause (a)(ii), such amount shall be reduced to the extent required to cause the amount calculated pursuant to such subclause (A)(III) to equal five percent (5%) of the total of the amount calculated pursuant to subclauses (A)(I), (A)(II), (A)(III) and (A)(IV) of this clause (a)(ii); and
(b) that is Secured Debt that is recourse to the Borrower and/or Consolidated Entities (not including debt recourse to a single asset entity or incur any Indebtedness owing customary recourse carve-outs relating to any other Loan Party or any Affiliate or employee nonrecourse Secured Debt) except to the extent that such Secured Debt does not, as of any Loan Party unless date of calculation, exceed an aggregate amount equal to twenty percent (20%) of Total Assets as of such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentdate.
Appears in 1 contract
Indebtedness. CreateA. The Company shall not, and shall not permit any Subsidiary to, incur, directly or indirectly, any Indebtedness (other than Indebtedness described in subsection 7.1B); provided, however, that the Company or any Subsidiary shall be permitted to incur such Indebtedness if, on the date of such incurrence, and on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness and the application of proceeds therefrom, (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the Interest Coverage Ratio as of the last day of the most recently ended Fiscal Quarter for which financial statements are available would equal or exceed 2.0:1.0.
B. Notwithstanding clause 7.1A above, the Company and its Subsidiaries may create, incur, assume or suffer guaranty, or otherwise become or remain directly or indirectly liable with respect to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):Indebtedness as follows:
(ai) Obligations Each of the Loan Parties under the Loan Documentsmay become and remain liable with respect to its respective Obligations;
(bii) Surviving The Company and its Subsidiaries, as applicable, may remain liable with respect to Indebtedness listed on described in Schedule 7.03(b7.1 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 (but including accrued but unpaid interest to be capitalized in the principal thereof and fees and expenses incurred in connection therewith);
(A) The Company and its Subsidiaries may become and remain liable with respect to Indebtedness in respect of Guaranty Obligations (other than Guaranty Obligations permitted pursuant to subsection 7.1B(i), but subsection 7.IB(vii) and subsection 7.1B(ix)) in an aggregate amount not to exceed $5,000,000 at any extensions, renewals time outstanding; and (B) the Company may become and remain liable with respect to Indebtedness in respect of Guaranty Obligations of obligations of Subsidiaries in an aggregate amount not to exceed $7,500,000 at any time outstanding;
(iv) The Company and its Subsidiaries may become and remain liable with respect to Indebtedness of the Company and its Subsidiaries incurred after the Closing Date consisting of Capital Leases or replacements other purchase money Indebtedness incurred to provide all or a portion of the purchase price or cost of construction of an asset (or to finance such purchase price within ninety (90) days of such Indebtedness except acquisition) provided, that (i) renewals and extensions expressly provided such Indebtedness when incurred shall not exceed the purchase price or cost of improvement or 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 (including accrued but unpaid interest to be capitalized in the agreements principal thereof and fees and expenses incurred in connection therewith); and (iii) the total amount of all such Indebtedness shall not exceed $5,000,000 at any time outstanding;
(v) The Company and its Subsidiaries may become and remain liable with respect to any unsecured intercompany Indebtedness among the Loan Parties, provided that any such Indebtedness owed by any Loan Party shall be fully subordinated to the Obligations hereunder on terms reasonably satisfactory to the Administrative Agent and notes evidencing any such material Indebtedness as owed to any Loan Party shall be pledged to the same are Collateral Agent on behalf of the Lenders to secure the Obligations;
(vi) The Company and its Subsidiaries may become and remain liable with respect to Indebtedness under Hedge Agreements required under subsection 6.10 and other Hedge Agreements entered into in order to manage existing or anticipated interest rate, exchange rate or commodity price risks and not for speculative purposes;
(vii) The Company and its Subsidiaries may become and remain liable with respect to any Subordinated Debt and any Guaranty Obligations in connection with such Subordinated Debt, including without limitation any Take-Out Financing that is used to redeem or otherwise repurchase Preferred Stock; provided that if such Take-Out Financing is used to redeem or otherwise repurchase Preferred Stock then the Leverage Ratio shall be less than 4.0:1.0 on a Pro Forma Basis after giving effect on to the date incurrence of this Agreement such Take-Out Financing;
(viii) The Company and its Subsidiaries may become and remain liable with respect to Indebtedness and obligations of Loan Parties owing under documentary letters of credit for the purchase of goods or other merchandise (iibut not under standby, direct pay or other letters of credit except for the letters of credit under the First Lien Credit Agreement) refinancings generally;
(ix) The Company and extensions its Subsidiaries may become and remain liable with respect to Indebtedness owed under the First Lien Credit Agreement;
(x) The Company and its Subsidiaries may become and remain liable with respect to other Indebtedness in an aggregate principal amount not to exceed $7,500,000 at any time outstanding;
(xi) The Company and its Subsidiaries may become and remain liable with respect to Indebtedness of any Person or the property or assets of any Person acquired by the Company or any of its Subsidiaries in connection with any Permitted Acquisition so long as such Indebtedness if was in existence at the time of such acquisition and was not incurred in contemplation of such transaction; and
(xii) The Company and the Subsidiary Guarantors may become and remain liable with respect to unsecured Indebtedness the proceeds of which are used to repay Obligations under this Agreement; provided, that, the terms and conditions thereof of such Indebtedness are not no less favorable to the obligor obligors thereon or to the Lenders (other than with respect to interest rate and fees) than the Indebtedness being refinanced or extendedterms of this Agreement and the other Loan Documents, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, obligations under this Agreement and all other terms and provisions of such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms are reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Transportation Technologies Industries Inc)
Indebtedness. Create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;except:
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and under the Transaction Documents;
(ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to of the Company Entities and their Restricted Subsidiaries outstanding on the Commencement Date and set forth in Schedule 15.4(c), and renewals, refinancings and extensions of all or any Loan Party part thereof (subject to the extent following proviso, “Refinancing Indebtedness”); provided that (A) the amount of such Indebtedness is permitted as not increased at the time of such refinancing, refunding, renewal or extension except by an Investment pursuant KE 135394706 amount equal to Section 7.02; provideda reasonable premium or other reasonable amount paid, thatand fees and expenses reasonably incurred, in each case (A) all connection with such Indebtedness shall be evidenced refinancing and by promissory notes and all such notes shall be subject an amount equal to a first priority Lien pursuant to the Collateral Documents any existing commitments unutilized thereunder, and (B) all the material terms relating to principal amount, amortization, maturity, and subordination (if any), and other material terms (other than pricing and yield), of any such Indebtedness shall be unsecured refinancing, refunding, renewing or extending Indebtedness, and subordinated of any agreement entered into and of any instrument issued in right of payment connection therewith, are no less favorable, in the aggregate and taken as a whole, in any material respect to the payment in full of the Obligations pursuant to Company Entities or their Restricted Subsidiaries or ▇▇▇▇ than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended (it being understood that it shall be deemed a permitted refinancing under this Section 15.4(c)(ii) if funds, raised in a public offering of debt securities, are restricted to repayment of such Indebtedness, even if a period of up to sixty (60) days (or a longer period to the extent that such funds are escrowed pursuant to arrangements satisfactory to ▇▇▇▇) intervenes between the date such public offering closes and the date that the applicable promissory notes or an intercompany subordination agreement that in any Indebtedness is repaid from such case, is reasonably satisfactory to the Collateral Agentfunds);
(jiii) unsecured intercompany Indebtedness, and Guarantees with respect to Indebtedness otherwise permitted hereunder, so long as in each case the related Investment made by the holder of such Indebtedness or by the provider of such Guarantee, as applicable, is permitted under Section 15.4(b) (other than for borrowed moneysubsection (vi) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Partiesthereof);
(kiv) obligations (contingent or otherwise) of any Company Entity or its Restricted Subsidiaries existing or arising under any Swap Contract; provided that
(A) 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, and (B) 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 (it being understood that Section 2(a)(iii) of the ISDA Master Agreement does not constitute such a provision);
(v) purchase money Indebtedness (including Attributable Indebtedness in respect of the convertible notes; provided thatCapital Leases or Synthetic Lease Obligations) incurred, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than within one hundred eighty (180) days following of the Last Out Maturity Datelater of the acquisition, lease, completion of improvements, construction, repairs or additions or commencement of full operation of any assets or property, by any Company Entity or its Restricted Subsidiary to finance all or any part of the purchase price or cost of construction or improvement of Property used in the business of such Company Entity or its Restricted Subsidiary (including, without limitation, any metal or other element, composite or alloy used as, or part of, a catalyst in the operation of the refinery assets of any of Consolidated Parties) other than Collateral; and
provided that (mA) the 2021 Preferred Stock aggregate amount of all such Indebtedness of all Company Entities and their Restricted Subsidiaries shall not exceed at any time outstanding the greater of $100,000,000 or 5% of Consolidated Net Tangible Assets (provided that the foregoing limitation on terms reasonably acceptable amount shall not apply (x) to purchase money Indebtedness (whether in the form of Capital Leases or as Indebtedness) incurred to purchase any metals or other elements, composites or alloys used as, or part of, a catalyst in the operation of the refinery assets of any of Consolidated Parties or (y) if the Company Entities demonstrate to the Administrative Agent reasonable satisfaction of ▇▇▇▇, based on adjustments made in its sole discretion. For purposes good faith using reasonable assumptions, that the Fixed Charge Coverage Ratio (ABL) on a Pro Forma 62 KE 135394706 Basis after giving effect to the incurrence of determining compliance with this Section 7.03such Indebtedness shall be at least 1.0 to 1.0), all Obligations provided, further, that any such Indebtedness incurred to finance the purchase of Refinery Assets constituting Equipment shall, at any time that the Refinery Asset Borrowing Base Component is greater than $0, not exceed at any time outstanding under $5,000,000, (B) such Indebtedness when incurred shall not exceed the Loan Documents will be deemed to have been lesser of (x) the purchase price or cost of construction or improvement and (y) the fair market value of the asset(s) financed, plus in each case, fees and expenses reasonably incurred in reliance only on connection with such refinancing, (C) no such Indebtedness shall be refinanced for a principal amount in excess of the exception principal balance outstanding thereon at the time of such refinancing plus reasonable premiums or other reasonable amounts paid, and fees and expenses reasonably incurred, in clause connection with such refinancing, (aD) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party such refinancing Indebtedness shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to a final maturity date no earlier than the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.earlier of
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness outstanding on the date hereof and listed on Schedule 7.03(b)7.02 and any refinancings, but not any extensionsrefundings, renewals or replacements extensions thereof; provided, that, the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable by an amount equal to the obligor thereon a reasonable premium or to the Lenders than the Indebtedness being refinanced or extendedother reasonable amount paid, and the average life to maturity thereof is greater than or fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to that of any existing commitments unutilized thereunder and the Indebtedness being refinanced direct or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an any contingent obligor with respect to the Indebtedness being extendedthereto is not changed, renewed as a result of or refinancedin connection with such refinancing, (B) exceed in a principal amount the Indebtedness being renewedrefunding, extended renewal or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromextension;
(c) Indebtedness with (i) in respect to Capital Leases of Capitalized Leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.01(i); provided, however, that, the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $5,000,000 and (ii) in respect of any refinancing of Indebtedness incurred pursuant to this clause (c);
(d) unsecured Indebtedness of Holdings or a Subsidiary owing to Holdings or a Subsidiary to the extent permitted under Section 7.03 (“Intercompany Debt”);
(e) Guarantees of Holdings or any Subsidiary in respect of Indebtedness otherwise permitted hereunder of Holdings or any Subsidiary;
(f) Indebtedness of any Person that becomes a Subsidiary of the Borrower after the date hereof in a transaction permitted hereunder in an aggregate principal amount not to exceed $1,000,000 5,000,000; provided, that, such Indebtedness is existing at the time such Person becomes a Subsidiary of the Borrower and was not incurred solely in contemplation of such Person’s becoming a Subsidiary of the Borrower;
(g) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided, that, (i) such obligations are (or were) entered into by such Person in the aggregate at ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates and (ii) such Swap Contract does not contain any time outstanding; provided that provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(h) Guarantees in the ordinary course of business in respect of obligations of Holdings or any such of its Subsidiaries (not for borrowed money) to a supplier, customer, franchisee, lessor or licensee;
(i) Indebtedness representing deferred compensation to current or former directors, officers, employees, members of management, managers and consultants of Holdings or any of its Subsidiaries (xand their respective estates, spouses and former spouses) in the case ordinary course of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetbusiness;
(d) the SBA PPP Loan;
(ej) Indebtedness in respect of Swap Contracts designed to hedge against interest rates(i) netting services, foreign exchange rates or commodities pricing risks overdraft protections and similar arrangements in each case in connection with deposit accounts and (ii) credit card and purchase card services;
(k) Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, customs, Taxes and other similar tax guarantees, in each case incurred in the ordinary course of business and not for speculative purposesin connection with the borrowing of money;
(fi) Indebtedness consisting of (a) the financing of insurance premiums or (b) take-or-pay obligations contained in supply arrangements, in the case of the foregoing clauses (a) and (b) in the ordinary course of business and (ii) Indebtedness incurred by Holdings or any Loan Party of its Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance insurance, or other Indebtedness with respect to reimbursement-reimbursement type obligations regarding workers workers’ compensation claims;
(gm) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods unfunded pension fund and services other employee benefit plan obligations and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms to the extent that the unfunded amounts are permitted to remain unfunded under Applicable Law and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPwould not otherwise cause an Event of Default under Section 8.01(i);
(hn) Indebtedness consisting customer deposits and advance payments received in the ordinary course of guarantees resulting business from endorsement of negotiable instruments customers for collection by any Loan Party goods and services purchased in the ordinary course of business;
(i) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (iexcept in the case of daylight overdrafts) any Loan Party owing to any other Loan Party drawn against insufficient funds in the ordinary course of business; provided, that, such Indebtedness is extinguished within five (5) Business Days of incurrence and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to in respect of any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance Cash Management Agreements entered into in the ordinary course of business of the Loan Partiesbusiness;
(kp) Indebtedness incurred by the Borrower or any Subsidiary in a Permitted Acquisition, any other Investment permitted hereunder or any Disposition, in each case constituting indemnification obligations or obligations in respect of the convertible notes; provided thatearnouts, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (purchase price adjustments, or other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligationssimilar adjustments;
(lq) other unsecured Indebtedness, provided that such Indebtedness matures in an aggregate principal amount not less than one hundred eighty (180) days following the Last Out Maturity Dateto exceed $10,000,000 at any time outstanding; and
(mr) the 2021 Preferred Stock all premiums (if any), interest (including any post-petition interest), fees, expenses, charges and additional or contingent interest on terms reasonably acceptable to the Administrative Agent obligations described in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause clauses (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentthrough (q) above.
Appears in 1 contract
Sources: Credit Agreement (nCino, Inc.)
Indebtedness. CreateExcept as permitted or contemplated by this Agreement, create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals Debt or replacements of such Indebtedness except (i) renewals and extensions expressly provided obligation for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinancedmoney borrowed, or (C) guarantee, or endorse, or otherwise be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset become contingently liable in connection with the incurrence obligations of any Person (including, without limitation, any Affiliate), except:
7.1.1 Indebtedness for taxes not at the time due and payable or which are being actively contested in good faith by appropriate proceedings and against which reserves deemed adequate by Lender have been established by Obligor, but only if the non-payment of such Indebtedness, as taxes being contested does not result in a Lien upon any property of Obligor that has priority over the case may be, and (y) Lien held by Lender;
7.1.2 Contingent liabilities arising out of the endorsement of negotiable instruments in the case ordinary course of purchase money Indebtedness, shall constitute not less than 75% collection or similar transactions in the ordinary course of the aggregate consideration paid with respect to such assetbusiness;
7.1.3 Accounts payable to trade creditors which are not aged more than ninety (d90) the SBA PPP Loan;
days from billing date and current operating expenses (eother than for borrowed money) Indebtedness which are not more than thirty (30) days past due, in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks each case incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified timesuch time period, unless the same are actively being contested in good faith and by appropriate and lawful proceedings and reserved for substantially in accordance Obligor shall have set aside such reserves, if any, with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection respect thereto as have been reasonably determined by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity DateObligor; and
7.1.4 Debt for money borrowed from the Lender;
7.1.5 Capitalized Lease Obligations which do not cause Obligor to be in violation of Section 6.19 of this Agreement;
7.1.6 The Secured Note; and
7.1.7 Any existing outstanding debts or other liabilities of any Obligor and any Subsidiary of Borrower, including any lines of credit (mand the amounts outstanding thereunder as of the Closing Date) as disclosed on Schedule 7.1 to this Agreement; provided that the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations amounts outstanding under each obligation of such Obligor or Subsidiary shall not at any time exceed the Loan Documents will be deemed to have been incurred in reliance only amounts set forth on Schedule 7.1 without the exception in clause (a) express written consent of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentLender.
Appears in 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations Indebtedness existing on the date hereof and set forth in SCHEDULE 6.01 and any extensions or renewals of such Indebtedness to the Loan Parties extent the principal amount of such Indebtedness is not increased, neither the final maturity nor the weighted average life to maturity of such Indebtedness is decreased, such Indebtedness, if subordinated to the Obligations, remains so subordinated on terms no less favorable to the Lenders, and the original obligors in respect of such Indebtedness remain the only obligors thereon;
(b) Indebtedness created under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect created under the Second Lien Loan Documents and any Permitted Refinancing Indebtedness used to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of Refinance such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) Indebtedness of the SBA PPP LoanBorrower or any Subsidiary to Pacific Energy or any of its subsidiaries; PROVIDED that (i) any such Indebtedness shall not have been transferred or pledged to an third party, (ii) such Indebtedness shall be unsecured, (iii) such Indebtedness shall be subordinated to the Obligations on terms and conditions satisfactory to the Agent and the Lenders in their sole discretion, (iv) such Indebtedness shall be permitted by Section 6.04(c) and (v) the aggregate principal amount of all Indebtedness of the Borrower or any Subsidiary to Pacific Energy or to any subsidiary of Pacific Energy that is not a Loan Party shall not exceed $5,000,000 at any time outstanding;
(e) Indebtedness in respect of Swap Contracts designed the Borrower or any Subsidiary incurred to hedge against interest ratesfinance the acquisition, foreign exchange rates construction or commodities pricing risks improvement of real property (other than Oil and Gas Properties), improvements thereto and equipment, 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 in prior to or within 90 days after such acquisition or the ordinary course completion of business such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this paragraph (e), when combined with the aggregate principal amount of all Capital Lease Obligations and Synthetic Lease Obligations incurred pursuant to Section 6.01(f) shall not for speculative purposesexceed $7,500,000 at any time outstanding;
(f) Capital Lease Obligations and Synthetic Lease Obligations in an aggregate principal amount, when combined with the aggregate principal amount of all Indebtedness incurred by pursuant to Section 6.01(e), not in excess of $7,500,000 at any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimstime outstanding;
(g) Indebtedness under performance bonds or with respect to workers' compensation claims, in each case incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(h) Guarantees permitted under Section 6.04;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed constituting Hedging Agreements permitted by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agentthis Agreement;
(j) unsecured other Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness Borrower or the Subsidiaries in respect of the convertible notes; provided that, all such Indebtedness an aggregate outstanding principal amount not in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than excess $5,000,000 at any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agenttime.
Appears in 1 contract
Sources: First Lien Credit Agreement (Pacific Energy Resources LTD)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness outstanding on the date hereof as shown on the financial statements of Borrower provided to the Administrative Agent (which, in the case of each item of Indebtedness in excess of $1,000,000 is also listed on Schedule 7.03(b)7.02) and any refinancings, but not any extensionsrefundings, replacements, renewals or replacements extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable by an amount equal to the obligor thereon a reasonable premium or to the Lenders than the Indebtedness being refinanced or extendedother reasonable amount paid, and the average life to maturity thereof is greater than or fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to that any existing commitments unutilized thereunder, as a result of the Indebtedness being refinanced or extended; providedin connection with such refinancing, such Indebtedness permitted under the immediately preceding clause (i) refunding, renewal or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromextension;
(c) Guarantees of the Borrower and any of its Subsidiaries in respect of (i) the Revolving Credit Agreement, and in respect of any refinancings, refundings, replacements, renewals or extensions thereof provided that the aggregate principal amount of the related lending commitments are not increased to an amount which is in excess of $150,000,000, and of Swap Contracts and other related obligations of the Guarantor to the extent permitted under the Revolving Credit Agreement, up to $750,000,000, and (ii) Indebtedness otherwise permitted hereunder of the Borrower and its Subsidiaries;
(d) Indebtedness in respect of Capitalized Leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.01(h); provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $5,000,000;
(e) Swap Contracts consisting of foreign currency transactions having a tenor of not more than 60 days, and other Swap Contracts with respect to Capital Leases and purchase money Indebtedness in an aggregate notional amount not in excess of the amount of the Loans; and
(f) unsecured Indebtedness in an aggregate principal amount not to exceed $1,000,000 in the aggregate 5,000,000 at any time outstanding; provided that . For purposes of this Section 7.02, any such item of Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall incurred under this Section will be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, separately valued for exchange rate purposes as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect date of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course its incurrence and no Event of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the Default shall result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to under this Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment solely as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentforeign currency movements thereafter.
Appears in 1 contract
Sources: Credit Agreement (International Rectifier Corp /De/)
Indebtedness. CreateCompany shall not permit its Subsidiaries which are not Subsidiary Guarantors to, directly or indirectly, create, incur, assume or suffer guaranty, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness in excess of an aggregate amount equal to exist any Indebtedness15% of Consolidated Net Worth of Company as of the last day of the most recently ended Fiscal Quarter for all such non-Subsidiary Guarantors, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;for:
(i) Indebtedness existing on the date hereof and set forth in Schedule 7.1 and any refinancing, extension or renewals thereof to the extent the principal amount of such Indebtedness is not increased (i) any Loan Party owing except by an amount equal to any the unpaid accrued interest and premium thereon or other Loan Party amounts paid, and fees and expenses incurred, in connection with such refinancing, extension or renewal), and neither the final maturity nor the weighted average life to maturity of such Indebtedness is decreased;
(ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary under intercompany loans made to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced Subsidiary by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes Company or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral AgentSubsidiary;
(jiii) unsecured Indebtedness up to an aggregate of $1.5 billion incurred in connection with a Permitted Receivables Transaction;
(other than for borrowed moneyiv) that Indebtedness which may be deemed to exist pursuant with respect to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan PartiesHedge Agreements;
(kv) Indebtedness that may exist in respect of the convertible notes; provided that, all deposits or payments made by customers or clients of such Subsidiaries;
(vi) Indebtedness owed in respect of any netting services, overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds;
(vii) Indebtedness up to an aggregate of $200,000,000 incurred in connection with or as a component of the convertible notes shall be unsecured purchase price of any property or that was existing on any property or any Person acquired by such Subsidiary at the time of acquisition thereof and subordinated assumed in right of payment to the payment in full connection with such acquisition (other than Indebtedness issued in connection with, or in anticipation of, such acquisitions), and any payment as a result of refinancing, extension or renewals thereof to the conversion extent the principal amount of such convertible notes into Equity Interests of Parent) Indebtedness is not increased (except by an amount equal to the Obligations;
(l) unpaid accrued interest and premium thereon or other unsecured Indebtednessamounts paid, provided that and fees and expenses incurred, in connection with such refinancing, extension or renewal), and neither the final maturity nor the weighted average life to maturity of such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateis decreased; and
(mviii) Indebtedness incurred in connection with any Debt Offering that reduces the 2021 Preferred Stock term loan commitments under the Bridge Facility Credit Agreement; provided that each issuer or guarantor of such Indebtedness becomes a Loan Party on terms reasonably acceptable or prior to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Term Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentFunding Date.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness outstanding on the date hereof and listed on Schedule 7.03(b7.02 (including Indebtedness evidenced by the Intercompany Note and the European Credit Note), but not and any extensionsrefinancings, refundings, renewals or replacements extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable by an amount equal to the obligor thereon a reasonable premium or to the Lenders than the Indebtedness being refinanced or extendedother reasonable amount paid, and the average life to maturity thereof is greater than or fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to that of any existing commitments unutilized thereunder plus any accrued but unpaid interest thereon and the Indebtedness being refinanced direct or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an any contingent obligor with respect to the Indebtedness being extendedthereto is not changed, renewed as a result of or refinancedin connection with such refinancing, (B) exceed in a principal amount the Indebtedness being renewedrefunding, extended renewal or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromextension;
(c) Indebtedness with in respect to Capital Leases of capitalized leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.01(i); provided, however, that, the aggregate amount of all such Indebtedness in an amount at any one time outstanding hereunder shall not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset500,000;
(d) the SBA PPP LoanReserved;
(e) Guarantees by the Parent or Borrowers of Indebtedness of any Loan Party and by any Loan Party of Indebtedness of the Borrowers or any other Guarantor, provided that such Indebtedness is otherwise permitted by this Section 7.02;
(f) other unsecured Indebtedness of the Parent and the Borrowers and the Borrowers’ Subsidiaries, in an aggregate principal amount, when added to the Indebtedness incurred under subsection (c) above shall not exceed $500,000 at any time outstanding;
(g) obligations (contingent or otherwise) of the Parent or the Borrowers or any Subsidiary existing or arising under any Swap Contract, provided that 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;”
(h) intercompany Indebtedness amongst Loan Parties and their Subsidiaries provided, that the Parent and the other Borrowers shall not make intercompany loans or advances to any Foreign Subsidiary (other than Foreign Subsidiaries acquired in the TiNet Acquisition) after the Second Restatement Date in an aggregate principal amount of more $1,000,000 at any one time outstanding and intercompany loans or advances to Foreign Subsidiaries acquired in the TiNet Acquisition in such maximum amount at any one time outstanding as may be agreed to by the Required Lenders in writing in their reasonable discretion;
(i) Acquisition-Related Debt;
(j) Indebtedness incurred in favor of insurance companies (or their financing affiliates) in connection with the financing of insurance premiums;
(k) Indebtedness in respect of Swap Contracts designed netting services, overdraft protections and otherwise in connection with deposit accounts to hedge against interest ratesthe extent incurred in the ordinary course of business;
(l) Indebtedness consisting of promissory notes issued by any Loan Party to former, foreign exchange rates future or commodities pricing risks current officers, directors, consultants or employees of the Parent or Borrowers and any of their respective Subsidiaries or their respective estates to finance the purchase or redemption of Equity Interests of the Borrowers to the extent the applicable Restricted Payment is permitted by Section 7.06;
(m) Indebtedness consisting of indemnification, adjustment of purchase price, working capital adjustments or similar adjustments incurred in connection with a Permitted Acquisition or a Disposition permitted under Section 7.05;
(n) obligations in respect of surety, stay, customs and appeal bonds, performance bonds and performance and completion guaranties and obligations of a like nature incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party or obligations in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments credit related thereto;
(o) reimbursement obligations with respect to letters of credit issued or created in the ordinary course of business, including in respect of bids, trade contracts, governmental contracts and leases (other than for the repayment of Indebtedness), statutory obligations, workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-reimbursement type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(mp) the 2021 Preferred Stock on terms reasonably acceptable non-cash accruals of interest, accretion or amortization of original issue discount and/or pay-in-kind interest with respect to the Administrative Agent in its sole discretion. For purposes of determining compliance with Indebtedness permitted under this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent7.02.
Appears in 1 contract
Indebtedness. CreateThe Borrower shall not, and shall not permit any Subsidiary of the Borrower to, at any time create, incur, assume or suffer permit to exist any Indebtedness, except or agree, become or remain liable (contingently or otherwise) to do any of the followingforegoing, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations Indebtedness of the Loan Borrower in favor of the Lender Parties under pursuant to this Agreement and the other Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b)of the Borrower under the Term Loan Agreement, in aggregate principal amount not to exceed $225,000,000 (but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromthereof);
(c) Indebtedness of the Borrower or any of its Subsidiaries not exceeding $8,250,000 in principal amount, issued in connection with respect the acquisition by the Borrower or a Subsidiary of all of the Shares of Capital Stock of ICV (such Indebtedness being referred to Capital Leases herein as the "ICV Notes"); and purchase money Indebtedness of the Borrower under the Note Backup Agreement and the letters of credit subject thereto;
(d) Indebtedness of the Borrower under the Senior Notes, in an aggregate principal amount not to exceed $1,000,000 in the aggregate at 112,000,000 (but not any time outstanding; provided that extensions, renewals or refinancings of any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loanthereof);
(e) Indebtedness in respect constituting Capitalized Lease Obligations of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks the Borrower and its Subsidiaries incurred in the ordinary course of business from time to time, and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred Borrower and its Subsidiaries secured by Liens described in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 1 contract
Indebtedness. CreateIssue, incurincur or assume any Indebtedness (excluding any Disqualified Stock or any preferred Equity Interests); provided that the Borrowers and the Restricted Subsidiaries may issue, incur or assume Indebtedness (“Ratio Debt”) so long as (i) such Indebtedness does not mature or suffer have any scheduled amortization or payments, repurchases or redemptions of principal (other than customary amortization payments), in each case, prior the final maturity date of the Revolving Credit Commitments at the time such Indebtedness is incurred and such Indebtedness does not have a shorter Weighted Average Life to exist Maturity than the Revolving Credit Commitments then outstanding, in each case other than Indebtedness in an aggregate principal amount that does not exceed the greater of (a) $50,000,000 and (b) 25% of Consolidated EBITDA as of the date any such Indebtedness is incurred, (ii) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, except the followingInterest Coverage Ratio is 2.00 to 1.00 or greater, without duplication calculated on a Pro Forma Basis, (which constitutes iii) the aggregate principal amount of Ratio Debt incurred by Restricted Subsidiaries that are not Guarantors, when aggregated with the amount of Permitted Refinancing Indebtedness incurred by Restricted Subsidiaries that are not Guarantors in respect of Ratio Debt, may not exceed $25,000,000 at any time outstanding, (iv) to the extent such Indebtedness is secured by the Collateral, it will be subject to intercreditor or lien subordination arrangements reasonably satisfactory to the Administrative Agent, and (v) no Event of Default shall exist or would result therefrom. The foregoing limitation will not apply to (collectively, “Permitted Indebtedness”):
(a) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur including any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.Revolving Credit Commitment Increase);
Appears in 1 contract
Sources: Credit Agreement (Leslie's, Inc.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, (without duplication (which constitutes “Permitted Indebtedness”duplication):
(a) Obligations of Indebtedness existing on the Loan Parties under the Loan Documents;
(bdate hereof and set forth in Schedule 6.01(a) Surviving Indebtedness listed on Schedule 7.03(b), but not and any extensions, renewals or replacements of such Indebtedness except existing mortgages and Capital Lease Obligations; provided, however, that (i) renewals and extensions expressly provided for in the agreements evidencing principal amount of any such Indebtedness as extension, renewal or replacement shall not exceed the same are in effect on principal amount of the date of this Agreement and mortgage or Capital Lease Obligation so extended, renewed or replaced, (ii) refinancings the mortgage or Capital Lease Obligation so extended, renewed or replaced shall not be secured by any property or asset that was not already pledged to secure the existing mortgage or Capital Lease Obligation, and extensions of any (iii) such Indebtedness if extension, renewal or replacement is not on terms materially more restrictive to the terms and conditions thereof are not Borrower or its Subsidiaries or materially less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced mortgage or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being Capital Lease Obligation so extended, renewed or refinancedreplaced;
(b) Indebtedness represented by the Loan Documents; provided, however, that Indebtedness consisting of commercial paper of the Borrower may also be incurred pursuant to this clause (Bb) exceed in a to the extent the sum of such Indebtedness and the aggregate principal amount of Loans then outstanding do not exceed the Indebtedness being renewed, extended or refinanced, or Total Commitment at such time (Csubject to Section 6.01(n) be incurred, created or assumed if any Default or Event to the extent such sum is in excess of Default has occurred and is continuing or would result therefrom;$100,000,000).
(c) Indebtedness incurred upon the acquisition of any property or asset secured by Liens on such property or asset in accordance with respect to Capital Leases and Section 6.02(b); provided, however, that the amount of such Indebtedness shall not exceed the purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that price of any such Indebtedness (x) in the case of additional Capital Leases property or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP LoanIndebtedness secured by Liens permitted under Section 6.02(i), 6.02(j) or 6.02(m);
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks Subsidiaries existing at the time they are acquired by the Borrower and not incurred in the ordinary course contemplation of business and not for speculative purposessuch acquisition;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsof Subsidiaries not prohibited by Section 6.09;
(g) Indebtedness incurred by of (i) the Borrower to any Loan Party wholly owned Subsidiary, Choice Hotels Franchising or Quality Hotels; (ii) any wholly owned Subsidiary, Choice Hotels Franchising or Quality Hotels to the Borrower; and (iii) any Subsidiary, Choice Hotels Franchising or Quality Hotels to any wholly owned Subsidiary (or to Choice Hotels Franchising or Quality Hotels)(for the purposes of this clause (g), "wholly owned Subsidiary" includes any wholly owned subsidiary of Choice Hotels Franchising and/or Quality Hotels, any Subsidiary that would otherwise constitute a wholly owned Subsidiary but for directors' qualifying shares or similar matters, and any Subsidiary the only direct shareholders, members or participants in respect of 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 business in accordance with customary terms and paid within the specified timewhich are wholly owned Subsidiaries, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPChoice Hotels Franchising or Quality Hotels);
(h) Indebtedness consisting represented by notes or letters of guarantees resulting from endorsement credit issued for the account of negotiable instruments the Borrower or any Subsidiary in connection with insurance policies and in a form substantially similar to the notes or letters of credit issued for collection by the account of the Borrower or any Loan Party Subsidiary set forth in Schedule 6.01(h) issued in connection with existing insurance policies of the ordinary course of businessBorrower or such Subsidiary;
(i) Indebtedness represented by utility bonds, performance bonds, state self insurance bonds and miscellaneous other bonds other than those existing on the date hereof and listed in Schedule 6.01(a) (including any extensions, renewals and replacements), the aggregate principal amount of such Indebtedness at any one time not to exceed $20,000,000 (isubject to Section 6.01(n) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right excess 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, is reasonably satisfactory to the Collateral Agent$20,000,000);
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan PartiesBorrower consisting of Guarantees in connection with pension and deferred compensation arrangements arising in connection with the Distribution; provided, however, that the aggregate amount of such Indebtedness shall not exceed $40,000,000;
(k) Indebtedness in respect consisting of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the ObligationsManor Care Note;
(l) Non-Recourse Hotel Indebtedness; provided, that, so long as the Manor Care Note remains in effect or any principal, interest or any other unsecured Indebtednessexpenses or amounts payable thereunder shall be unpaid, provided that the proceeds of the incurrence of such Non-Recourse Hotel Indebtedness matures not less than one hundred eighty shall be applied solely to prepay amounts outstanding under the Manor Care Note;
(180m) days following the Last Out Maturity DateIndebtedness consisting of Sale and Lease-back Transactions permitted under Section 6.03; and
(mn) other unsecured Indebtedness of the 2021 Preferred Stock on terms reasonably acceptable Borrower in an aggregate principal amount at any one time outstanding not to exceed $100,000,000; provided, however, that the Administrative Agent covenants and events of default contained in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder with an aggregate principal amount in excess of $10,000,000 shall not be more restrictive of the Borrower and expressly subordinated to its Subsidiaries than those in this Agreement; and provided further, that the Loans and other Obligations in a manner and on terms satisfactory to aggregate amount of Guarantees by the Administrative AgentBorrower may not exceed $50,000,000.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Choice Hotels Holdings Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):Indebtedness except:
(a) Obligations of the Loan Parties under the Loan DocumentsCredit Agreement Obligations;
(b) Surviving Indebtedness listed on Schedule 7.03(b)and obligations owing under Hedge Agreements entered into in order to manage existing or anticipated interest rate, but not any extensions, renewals exchange rate or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing commodity price risks incurred in the ordinary course of business and not for speculative purposes;
(fc) Indebtedness incurred existing on the Closing Date and listed on Schedule 9.1, and any refinancings, refundings, renewals or extensions thereof; provided that (i) the principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability an amount equal to a reasonable premium or other employee benefits reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder, and (ii) the final maturity date and weighted average life of such refinancing, refunding, renewal or propertyextension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing, casualty refunding, renewal or extension;
(d) Capital Lease Obligations and purchase money Indebtedness in an aggregate amount not to exceed $5,000,000 at any time outstanding;
(e) Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person in connection with an Investment permitted pursuant to Section 9.3, to the extent that (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, (ii) neither KMG nor any Subsidiary thereof (other than such Person and its Subsidiaries or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability insurance or self-insurance or other Indebtedness obligation with respect to reimbursement-type obligations regarding workers compensation claimssuch Indebtedness and (iii) the aggregate outstanding principal amount of such Indebtedness does not exceed $10,000,000 at any time outstanding;
(f) Guarantees with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section;
(g) unsecured intercompany Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPextent permitted pursuant to Section 9.3;
(h) Indebtedness consisting arising from the honoring by a bank or other financial institution of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party a check, draft or other similar instrument drawn against insufficient funds in the ordinary course Ordinary Course of businessBusiness;
(i) Indebtedness of (i) any Loan Party owing under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, thatworkers’ compensation claims, in each case (A) all such Indebtedness shall be evidenced by promissory notes incurred in the Ordinary Course of Business, and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated reimbursement obligations in right respect of payment to the payment in full any of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agentforegoing;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to of any bona fide warranty Borrower Party or contractual service obligations or performance any Subsidiary thereof incurred in the ordinary course Ordinary Course of business Business to finance the payment of premiums for a twelve-month period for insurance, provided that the Loan Parties;aggregate outstanding principal amount of such Indebtedness shall not at any time exceed $3,000,000; and
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Borrower Party or any Affiliate or employee of Subsidiary thereof not otherwise permitted pursuant to this Section in an aggregate principal amount not to exceed $15,000,000 at any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agenttime outstanding.
Appears in 1 contract
Sources: Credit Agreement (KMG Chemicals Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the Loan Parties purpose of directly mitigating risks associated with fluctuations in interest rates;
(b) Indebtedness under the Loan Documents;
(bc) Surviving Indebtedness listed on Schedule 7.03(b), but not 7.02 and any extensions, renewals or replacements Refinancings thereof; provided that the amount of such Indebtedness is not increased at the time of such Refinancing except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such Refinancing and by an amount equal to any existing commitments unutilized thereunder and the direct or any contingent obligor with respect thereto is not changed, as a result of or in connection with such Refinancing; and provided, still further, that the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such Refinanced Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Borrower or the Lenders than the terms of any agreement or instrument governing the Indebtedness being Refinanced and the interest rate applicable to any such Refinanced Indebtedness does not exceed the then applicable market interest rate;
(d) Indebtedness under any Junior Subordinated Indenture, so long as (i) renewals and extensions expressly provided for the interest rate on such Indebtedness does not exceed 10%, (ii) there are no financial covenants contained in the agreements evidencing any documents related to such Indebtedness and (iii) such Indebtedness is Subordinated Debt
(e) other Subordinated Debt which qualifies as tier 2 capital as determined in accordance with the same then-current regulations of the applicable Bank Regulatory Authorities;
(f) Guarantees by the Borrower
(i) (A) of Indebtedness of any Subsidiary and (B) of ordinary course obligations of any Subsidiary so long as (x) all Guarantees under this subclause (i) are unsecured and (y) the aggregate principal amount thereof shall not exceed $30,000,000; and
(ii) of any Indebtedness or other obligations of Barrington Bank & Trust Company, N.A., pursuant to that certain Corporate Guaranty Agreement, a copy of which was previously delivered to the Lenders, executed by the Borrower in effect on favor of the date Government National Mortgage Association dated October 29, 2015, so long as any Guarantee under this subclause (ii) is unsecured;
(g) the Existing Mortgage Loan (which may be Refinanced with the issuance of this Agreement other Indebtedness so long as (i) such Indebtedness does not increase the principal amount of the Indebtedness so Refinanced and (ii) refinancings and extensions of any Liens securing such Indebtedness if the terms and conditions thereof are not less favorable extended to the obligor thereon or to the Lenders than any additional property prohibited from securing the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromso Refinanced);
(ch) Indebtedness with respect to Capital Leases and purchase money other unsecured Indebtedness in an aggregate principal amount not to exceed $1,000,000 in the aggregate 300,000,000 at any time outstanding; , provided that any Indebtedness in excess of such Indebtedness (x) in the case limit which is comprised of additional Capital Leases or purchase money Indebtedness, Senior Debt shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection permitted with the incurrence written consent of such Indebtednessall Lenders in their discretion, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;and
(i) Indebtedness in the form of letters of credit (and reimbursement obligations in respect thereof) issued for the account of, or confirmed on behalf of, (i) any Loan Party owing to any other Loan Party and Borrower or (ii) Indebtedness owed by a Subsidiary that is Borrower and any of its Subsidiaries as co-borrowers or co-applicant parties, the aggregate amount thereof, drawn or undrawn, not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentexceed $45,000,000.
Appears in 1 contract
Indebtedness. CreateThe Loan Parties will not create, incur, assume or suffer permit to exist any Indebtedness, except (the following, without duplication (which constitutes “following being called "Permitted Indebtedness”"):
(ai) Obligations of the Loan Parties Indebtedness created hereunder and under the other Loan Documents;
(bii) Surviving any other Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect existing on the date Effective Date which is set forth in Schedule 6.01(n)(i) and has been designated on such schedule as Indebtedness that will remain outstanding following the funding of this Agreement the Loans, and (ii) refinancings and extensions any extension, renewal, refunding or replacement of any such Indebtedness if the Indebtedness, provided that (A) such extension, renewal, refunding or replacement is pursuant to terms and conditions thereof that are not less favorable to the obligor thereon or to Loan Parties and the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that terms of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed renewed, refunded or refinanced, replaced and (B) exceed in a principal after giving effect to such extension, renewal, refunding or replacement, the amount of such Indebtedness is not greater than the amount of Indebtedness being renewedoutstanding immediately prior to such extension, extended renewal, refunding or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromreplacement;
(ciii) Indebtedness with respect to Capital Leases intercompany loans among the Parent and purchase money Indebtedness in an amount its Subsidiaries (or among any Subsidiaries), provided that (A) intercompany loans permitted by this clause (iii) shall not to exceed (1) $1,000,000 800,000 in the aggregate at any time outstanding; provided that outstanding with respect to any such Indebtedness loans to Spandex Limited, (2) $400,000 in the aggregate at any time outstanding with respect to any loans to Ultramark Adhesive Products Ltd., (3) $300,000 in the aggregate with respect to any loans made by any Loan Party to any Foreign Subsidiary (other than a Loan Party), and (4) notwithstanding clauses (1), (2), and (3) of this clause (iii) (but nevertheless also subject to the individual limits set forth therein), (x) in the case aggregate amount of additional Capital Leases or purchase money Indebtedness, intercompany loans at any time outstanding permitted by this clause (iii) shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may benot exceed $1,500,000, and (y) any intercompany loan permitted by this clause (iii) will cease to be permitted if it is not repaid in the case of purchase money Indebtednessfull within 30 days after it is made, shall constitute not less than 75% of the aggregate consideration paid (B) with respect to any of such asset;
intercompany loans that are evidenced by one or more promissory notes, such promissory notes are pledged to the Agent pursuant to the terms hereunder, and (dC) there are no restrictions whatsoever on the SBA PPP Loan;
(e) Indebtedness in respect ability of Swap Contracts designed the applicable obligor to hedge against interest ratesrepay such loan, foreign exchange rates or commodities pricing risks incurred and further provided that book entry extensions of credit for product purchases in the ordinary course of business will not be deemed to be Indebtedness so long as (x) the amount of such extensions of credit that are made after the Effective Date does not exceed the Permitted Book Entry Amount in the aggregate at any time with respect to amounts owed by Persons that are organized outside of the United States to Persons that are organized in the United States, (y) none of such extensions of credit for product purchases may be outstanding for more than 90 days, except that up to $500,000 of such extensions of credit for product purchases that are made after the Effective Date may be outstanding at any time for more than 90 days, but less than 150 days, and (z) all such extensions of credit which are outstanding in whole or in part as of the Effective Date shall be listed on Schedule 7.02(a)(iii) (and amounts in excess of the thresholds, or outstanding for more than the number of days, set forth in clause (x) or (y) of this proviso or which were made prior to the Effective Date and not for speculative purposeslisted on Schedule 7.02(a)(iii) shall be deemed to be intercompany loans);
(fiv) other Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in after the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
Effective Date (g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially determined on a consolidated basis without duplication in accordance with GAAP) consisting of Capitalized Lease Obligations and/or secured by Liens permitted under Section 7.02(b)(viii), in an aggregate principal amount at any time outstanding not in excess of $2,000,000;
(hv) Revolving Credit Indebtedness consisting in an aggregate principal amount not to exceed at any time outstanding, the lower of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes $49,500,000 (plus interest and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents fees payable thereunder), and (B) all such Indebtedness shall be unsecured and subordinated in right of payment the aggregate amount available to the payment Loan Parties under the Borrowing Base (as defined in full the Revolving Credit Agreement as in effect on the date hereof) plus ten percent (10%) of such amount available under this clause (B), provided that the Revolving Credit Agent and the Borrowers shall have executed and delivered to the Agent the Intercreditor Agreement; and the extension of maturity, replacement, refinancing or modification of the Obligations terms thereof, provided that such extension, replacement, refinancing or modification (x) is pursuant to terms that are not less favorable (as determined in the Agent's discretion) to the Loan Parties and the Lenders than the terms of the applicable promissory notes Revolving Credit Indebtedness being so extended, replaced, refinanced or an intercompany subordination agreement that in any such casemodified, (y) is reasonably satisfactory subject to the Collateral AgentIntercreditor Agreement or a similar intercreditor agreement having substantially the same terms and conditions as the Intercreditor Agreement and (z) shall not provide for the incurrence of Indebtedness thereunder in excess of $49,500,000 at any time outstanding;
(jvi) unsecured Contingent Indebtedness of up to (other than for borrowed moneyA) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in $85,000,000 under the ordinary course of business of GECC Vendor Program Arrangement and (B) $12,500,000 under the Loan PartiesCanadian Vendor Program Arrangement;
(kvii) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the ObligationsGuarantees permitted under Section 7.01(c);
(lviii) other unsecured Indebtedness owing under that certain Loan Agreement dated as of December 1, 1984 between the Connecticut Development Authority and the Parent, that certain Reimbursement Agreement dated as of December 1, 1984 between the Parent and Citibank, N.A., and any extension, renewal, refunding or replacement of such Indebtedness, provided that (A) such extension, renewal, refunding or replacement is pursuant to terms that are not less favorable to the Loan Parties and the Lenders than the terms of the Indebtedness being extended, renewed, refunded or replaced and (B) after giving effect to such extension, renewal, refunding or replacement, the amount of such Indebtedness matures is not less greater than one hundred eighty (180) days following the Last Out Maturity Dateamount of such Indebtedness outstanding immediately prior to such extension, renewal, refunding or replacement; and
(mix) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent Unsecured Indebtedness in its sole discretion. For purposes an aggregate principal amount not in excess of determining compliance $5,000,000 at any one time outstanding (plus interest and fees payable with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentrespect thereto).
Appears in 1 contract
Indebtedness. Create(i) The Company shall not create, incur, assume assume, become or suffer be or remain liable in any manner in respect of, or allow to exist exist, any Indebtedness, Indebtedness except the following, without duplication (which constitutes “Permitted Indebtedness”):for:
(a) Obligations of the Loan Parties under the Loan DocumentsIndebtedness for taxes, assessments and similar governmental charges not yet due and payable or being contested in good faith and adequately reserved against in accordance with GAAP;
(b) Surviving Indebtedness listed arising from litigation or proceedings being contested in good faith and adequately reserved against or in respect of judgments for the payment of money remaining unsatisfied and in effect for any period less than sixty (60) days or in respect of which a stay of execution shall have been obtained pending an appeal or proceeding for review;
(c) Indebtedness, not for borrowed money, incurred, and to be paid, on Schedule 7.03(b)a customary open account basis in the ordinary course of business for normal and customary operating activities;
(d) Regularly scheduled periodic payments under long term leases existing on the date hereof, but not any extensionsas set forth on Exhibit G-1 hereto;
(e) Indebtedness evidenced by the Notes;
(f) Commitments;
(g) Indebtedness to members of the Company, renewals or replacements of their affiliates, provided such Indebtedness except (i) renewals and extensions expressly provided for in (x) may not be incurred or repaid (principal or interest) if at the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in time a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may becontinuing, and (y) is not outstanding for greater than thirty (30) days (subject to the repayment limitation set forth in the case of purchase money Indebtednesspreceding clause (x)), shall constitute not less than 75% of or (ii) is subordinated to the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary Facility on terms and paid within conditions acceptable to the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPCredit Agent;
(h) Indebtedness consisting of guarantees resulting from endorsement the Company specifically identified in Exhibit G annexed hereto (which Exhibit G includes a description of negotiable instruments for collection by any Loan Party Indebtedness outstanding, or available to be drawn, under existing arrangements of the type described in the ordinary course preceding clause (g)); provided (with the exception of businessPermitted Redemptions, to the extent constituting Indebtedness) that the Company shall not, without the prior consent of the Credit Agent, prepay such Indebtedness or consent or agree to any such prepayment or other change in the terms of such Indebtedness that is adverse to the Company;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party ▇▇▇▇▇▇ ▇▇▇, to the extent such Indebtedness is permitted as an Investment pursuant directly relating to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full or arising out of the Obligations pursuant to the terms origination, sale, repurchase, or servicing of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;Mortgage Loans; or
(j) unsecured Purchase money Indebtedness and Indebtedness under operating leases, (other than i) for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance the acquisition by the Company of equipment for use in the ordinary course of business of the Loan Parties;
Company’s business, and (kii) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment an aggregate amount outstanding at any time not to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentexceed $1,000,000.
Appears in 1 contract
Sources: Mortgage Warehousing and Security Agreement (Ares Commercial Real Estate Corp)
Indebtedness. CreateThe Borrower will not, and will not permit any of its Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness incurred pursuant to this Agreement and the Loan Parties under the Loan other Credit Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such intercompany Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromby Section 7.06(c);
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in Capitalized Lease Obligations initially incurred after the Closing Date; provided that the aggregate Capitalized Lease Obligations outstanding at any time outstanding; provided that any such Indebtedness (x) in the case of additional under all Capital Leases or purchase money Indebtednessincurred in reliance on this clause (c) after the Closing Date, when added to the aggregate outstanding amount of Indebtedness incurred in reliance on Section 7.04(e), shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetexceed $75,000,000 at any time;
(d) Indebtedness of the SBA PPP Loan;
(e) Indebtedness Borrower under Interest Rate Agreements entered into to protect it against fluctuations in interest rates in respect of Swap Contracts designed to hedge against interest ratesIndebtedness otherwise permitted under this Agreement, foreign exchange rates or commodities pricing risks incurred in so long as the ordinary course entering into of business such Interest Rate Agreements are bona fide hedging activities and are not for speculative purposes;
(e) Indebtedness incurred pursuant to purchase money mortgages permitted by Section 7.03(m); provided that the aggregate outstanding amount of Indebtedness incurred in reliance on this clause (e), when added to the aggregate outstanding amount of all Capitalized Lease Obligations incurred in reliance on Section 7.04(c), shall not exceed $75,000,000 at any time;
(f) Indebtedness incurred by under the Spinco Senior Notes or any Loan Party securities issued in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect exchange therefor pursuant to reimbursement-type obligations regarding workers compensation claimsany registered exchange offer;
(g) Indebtedness incurred by (the “Scheduled Existing Indebtedness”) in existence on, and which is to continue in effect after, the Closing Date (excluding Intercompany Debt) and which is listed on Annex VI hereto, without giving effect to any Loan Party in respect of accounts payable subsequent extension, renewal or refinancing thereof, except as permitted pursuant 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPSection 7.04(i);
(h) Indebtedness consisting of guarantees resulting from endorsement the Borrower or any of negotiable instruments its Subsidiaries which may be deemed to exist in connection with agreements providing for collection indemnification, purchase price adjustments and similar obligations in connection with Permitted Acquisitions or sales of assets permitted by 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 Loan Party in the ordinary course of businessother Person);
(i) Indebtedness Permitted Refinancing Indebtedness, so long as no Default or Event of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that Default is not a Guarantor Subsidiary to any Loan Party to in existence at the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full time of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agentincurrence thereof and immediately after giving effect thereto;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 1 contract
Indebtedness. CreateNo Loan Party shall, nor shall it permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromExisting Credit Agreement;
(c) Indebtedness with respect to Capital Leases outstanding on the date hereof and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at listed on Schedule 7.03 and any time outstandingrefinancings, refundings, renewals or extensions thereof; provided that any (i) the amount of such Indebtedness (x) in is not increased at the case time of additional Capital Leases such refinancing, refunding, renewal or purchase money Indebtednessextension except by an amount equal to a reasonable premium or other reasonable amount paid, shall be secured by the asset subject to such additional Capital Leases or acquired asset and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the incurrence terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no more restrictive on the Loan Parties (when taken as whole) than the case may beterms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended (when taken as a whole) and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate (y) as determined in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetgood faith by Holdings);
(d) Guarantees of (i) a Loan Party in respect of Indebtedness otherwise permitted hereunder of the SBA PPP Loanother Loan Parties and (ii) Indebtedness of Subsidiaries which are not Loan Parties, provided that the aggregate principal amount of Indebtedness at any time outstanding guaranteed in accordance with this clause (ii) shall not exceed $75 million;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest ratescapital leases, foreign exchange rates Synthetic Lease Obligations and purchase money obligations for fixed or commodities pricing risks incurred in capital assets; provided, however, that the ordinary course aggregate amount of business and all such Indebtedness at any one time outstanding shall not for speculative purposesexceed $150 million;
(f) Indebtedness incurred secured by a Permitted Lien set forth in clauses (2), (4), (11), (12), (14), (16), (22) (provided that the aggregate amount of such Indebtedness, together with the Indebtedness permitted pursuant to clause (d) above, at any Loan Party in respect one time outstanding shall not exceed $150 million), (24), (25) and (26) of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or definition thereof and any other employee benefits or property, casualty or liability insurance or self-insurance or clause to the extent deemed to constitute Indebtedness (other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;than indebtedness for borrowed money); and
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other Other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (James Hardie Industries PLC)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties Borrower and its Subsidiaries under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement Agreement, and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to (i) Capital Leases existing on the Closing Date as specified on Schedule 7.03(c) and (ii) additional Capital Leases incurred after the Closing Date and purchase money Indebtedness in an aggregate amount not to exceed $1,000,000 250,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(fe) Indebtedness incurred by the Borrower or any Loan Party of its Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, performance bonds, surety bonds, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance self‑insurance or other Indebtedness with respect to reimbursement-type reimbursement‑type obligations regarding workers compensation claims;
(gf) Indebtedness incurred by the Borrower or any Loan Party of its Subsidiaries in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(hg) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by the Borrower or any Loan Party of its Subsidiaries in the ordinary course of business;
(h) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Borrower or any of its Subsidiaries;
(i) (i) Indebtedness of (i) any Loan Party owing to any other Loan Party Party, (ii) [reserved] and (iiiii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and Documents, (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral AgentRequired Lenders, and (C) any payment by any Guarantor Subsidiary under any guaranty of the Obligations shall result in a pro rata 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;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan PartiesBorrower consisting of ABL Indebtedness in an aggregate principal amount not to exceed $15,000,000;
(k) Guarantee Obligations with respect to Indebtedness in respect permitted pursuant to clauses (a), (b), (c), (d), (e), (f) and (j) of this Section 7.03;
(l) the convertible notes; provided that, all such Indebtedness in respect Existing Letters of Credit and any replacement letters of credit issued by a replacement issuing bank after the convertible notes shall be unsecured Closing Date;
(m) pension withdrawal liability and subordinated in right of payment to the payment in full (other than any payment a leasehold guaranty incurred as a result of the conversion Chapter 7 bankruptcy proceedings of such convertible notes into Equity Interests ▇▇▇▇▇▇-▇▇▇▇▇▇ Custom Controls Holdings LLC in an aggregate amount not to exceed $5,900,000 (comprised of Parent) $4,300,000 of pension withdrawal liability and $1,600,000 of liability related to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateleasehold guaranty); and
(mn) the 2021 Preferred Stock on terms reasonably acceptable Indebtedness of any Loan Party or any Subsidiary thereof not otherwise permitted pursuant to the Administrative Agent this Section 7.03 in its sole discretionan aggregate principal amount not to exceed $500,000 at any time outstanding. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentRequired Lenders. Notwithstanding anything in this Section 7.03 to the contrary, no Loan Party will create or incur (or permit any of its Subsidiaries to create or incur) any Indebtedness (other than the Obligations) which is subordinated or junior in right of payment or priority to the ABL Indebtedness but is senior in right of payment or priority to the Obligations.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Williams Industrial Services Group Inc.)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(bin respect of capital leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets, including real estate, within the limitations set forth in Section 7.01(i), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect constituting an Investment permitted pursuant to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetSection 7.02(c);
(d) Indebtedness of a Subsidiary acquired or assumed after the SBA PPP LoanClosing Date and Indebtedness of a Person merged or consolidated with or into the Company or any of its Subsidiaries after the Closing Date, which Indebtedness in each case existed at the time of such acquisition, merger, consolidation or conversion into the Company or a Subsidiary and was not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement and any Liens securing such Indebtedness shall be in compliance with Section 7.01(k) and any refinancing, renewals or extensions thereof, provided that amount of the Indebtedness secured thereby is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder; provided that no Default shall result from the assumption of such Indebtedness (regardless of principal amount);
(e) Indebtedness of Subsidiaries of the Company (including any existing bilateral Indebtedness of such Subsidiaries but excluding any Indebtedness of such Subsidiaries under the Loan Documents) in respect an aggregate principal amount not to exceed at any time the greater of Swap Contracts designed (i) U.S.$600,000,000 and (ii) 10% of Consolidated Net Worth, determined as of the end of the then immediately preceding fiscal year; provided that, such permissible amount referred to hedge against interest rates, foreign exchange rates or commodities pricing risks in clauses (i) and (ii) of this clause (e) shall be reduced by any Indebtedness of any Subsidiaries of the Company that is incurred in the ordinary course of business and not for speculative purposesoutstanding under Section 7.03(f);
(f) secured Indebtedness of the Company and its Subsidiaries incurred in connection with the Liens permitted under Section 7.01(n) in an aggregate principal amount not to exceed U.S.$100,000,000 at any time; 95 sf-3344711
(g) unsecured Indebtedness of the Company if, after giving effect to such Indebtedness, the Company shall be in compliance with the financial covenants set forth in Section 7.12 on a pro forma basis as of the last day of the fiscal quarter most recently ended;
(h) Indebtedness permitted by any Loan Party Section 7.01(j);
(i) Indebtedness constituting all payment and reimbursement obligations due in respect of letters all Performance Credits, performance-based bank guarantees and performance-based surety bonds, provided that, such obligations are repaid within three Business Days of creditbecoming due and payable; and
(j) Indebtedness in respect of cash management operations, bank guaranteesnetting services, bankers’ acceptancescash pooling arrangements, warehouse receipts or automatic clearinghouse arrangements, daylight overdraft protections, employee credit card programs and other cash management and similar instruments issued or created arrangements in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by and any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentGuarantees thereof.
Appears in 1 contract
Sources: Credit Agreement (Jacobs Engineering Group Inc /De/)
Indebtedness. CreateThe Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist guaranty, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except except:
(i) the followingObligations;
(ii) Indebtedness arising under the Related Agreements;
(iii) Indebtedness in respect of the Capital Securities;
(iv) Additional Parent Debt in an aggregate principal amount not to exceed $200,000,000 at any time outstanding; provided, without duplication (which constitutes “Permitted Indebtedness”):
that all such Indebtedness (a) Obligations shall be unsecured, (b) shall be incurred after the Closing Date and (c) shall be extinguished on or prior to the consummation of the Loan Parties under the Loan DocumentsAssurant IPO;
(bv) Surviving Indebtedness listed existing on the Closing Date and set forth on Schedule 7.03(b)6.2, but but, in each case, not any extensions, renewals or replacements of such Indebtedness except (ia) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (iib) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (ia) or (iib) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, refinanced or (C) be incurred, created or assumed if any Potential Event of Default or Event of Default has occurred and is continuing or would result therefrom;
(cvi) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured owing by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing Borrower to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02Subsidiary; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) that all such Indebtedness shall be unsecured and subordinated in 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, case is reasonably satisfactory to the Collateral Administrative Agent;
(jvii) unsecured Indebtedness owing by any wholly-owned Subsidiary of the Borrower to the Borrower or to another wholly-owned Subsidiary of the Borrower;
(other than for borrowed moneyviii) Indebtedness owing by any non-wholly-owned Subsidiary of the Borrower to the Borrower or to a wholly-owned Subsidiary of the Borrower; provided, $650,000,000 CREDIT AGREEMENT that may be deemed the aggregate principal amount of all such Indebtedness under this clause (ix) shall not exceed $10,000,000 at any time outstanding;
(ix) purchase money Indebtedness and Capital Leases, in each case incurred in the ordinary course of business after the Closing Date, (a) in an aggregate principal amount (including the capitalized portion of any Capital Leases) not to exist pursuant to exceed $3,000,000 at any bona fide warranty time outstanding and (b) any Capital Lease in connection with the Ohio Sale/leaseback Transaction;
(x) Indebtedness of any Insurance Subsidiary in respect of letters of credit issued under letter of credit facilities and (a) securing obligations under Reinsurance Agreements or contractual service obligations or performance Retrocession Agreements entered into in the ordinary course of business of the Loan Parties;
such Subsidiary or (kb) Indebtedness issued in respect lieu of the convertible notes; provided thatdeposits to satisfy any requirements imposed by any Applicable Insurance Regulatory Authority, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment any case to the payment in full (other than any payment as a result extent such letters of the conversion of such convertible notes into Equity Interests of Parent) credit are not drawn upon or, if and to the Obligations;
extent drawn upon, such drawing is reimbursed not later than ten (l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (18010) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock receipt by such Subsidiary of notice of payment on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes such letter of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.credit;
Appears in 1 contract
Sources: Credit Agreement (Assurant Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
Documents (b) Surviving Indebtedness listed on Schedule 7.03(b)including, but not any extensionswithout limitation, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in connection with the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness Ventas Purchase Option ABL Loans in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such principal amount of Converting ABL Loans immediately prior to the Ventas Purchase Option Assignment);
(b) Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect Borrowers and their Restricted Subsidiaries set forth in Schedule 8.03 (and renewals, refinancings and extensions thereof (not exceeding the principal amount of the Indebtedness so renewed, refinanced or extended) on terms and conditions not materially less favorable (taken as a whole) to such assetthe applicable debtor(s) or to the Lenders);
(c) intercompany Indebtedness permitted under Section 8.02;
(d) obligations (contingent or otherwise) of the SBA PPP Loan;
(e) Indebtedness in respect of Borrowers or any Restricted Subsidiary existing or arising under any Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred Contract entered into in the ordinary course of business and not for speculative purposes;
(fe) purchase money Indebtedness incurred by any Loan Party (including obligations in respect of letters Capital Leases or Synthetic Leases) hereafter incurred by the Borrowers or any of credittheir Restricted Subsidiaries to finance the purchase of fixed assets, bank guaranteesand renewals, bankers’ acceptancesrefinancings and extensions thereof; provided that (i) the total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of the greater of (A) $190,000,000 and (B) 40% of Consolidated EBITDA 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 (other than for interest, warehouse receipts or similar instruments issued or created in the ordinary course of businesspremiums, including penalties and fees);
(f) Securitization Transactions (solely 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 Collateral of a type that would not constitute ABL Priority Collateral) in an aggregate principal amount at any one time outstanding not to reimbursement-type obligations regarding workers compensation claimsexceed the greater of (A) $75,000,000100,000,000 and (B) 25% of Consolidated EBITDA;
(g) intercompany Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not under the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPLHP Cash Management Transfer System;
(h) Indebtedness consisting under performance bonds, surety bonds, letter of guarantees resulting from endorsement of negotiable instruments credit obligations to provide security for collection by any Loan Party workers’ compensation claims and bank overdrafts, in each case in the ordinary course of business;
(i) Indebtedness in the form of trade payables and accrued expenses incurred in the ordinary course of business;
(j) other Indebtedness in an aggregate principal amount not to exceed the greater of (iA) $190,000,000215,000,000 and (B) 4045 % of Consolidated EBITDA at any Loan Party owing to one time outstanding;
(k) Indebtedness of the Borrowers or any other Loan Party and in the form of loans from the Captive Insurance Subsidiary in an aggregate principal amount at any time outstanding not to exceed twenty percent (ii20%) of the total assets of the Captive Insurance Subsidiary, as shown on the most recent balance sheet of the Captive Insurance Subsidiary in accordance with GAAP;
(l) Earn-Out Obligations not to exceed $10,000,000 in the aggregate at any one time outstanding;
(m) Guarantees by any Borrower or its Restricted Subsidiaries of Indebtedness owed permitted to be incurred by a such Borrower or Restricted Subsidiary in accordance with the provisions of this Agreement; provided that in the event such Indebtedness that is not a Guarantor Subsidiary to being Guaranteed is Subordinated Indebtedness, then any related Guarantee of any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral AgentLoans;
(jn) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance of the Loan Parties incurred in the ordinary course of business under financing arrangements related to the prepayment of premiums and deductibles under the Loan Parties’ insurance policies;
(ko) Indebtedness in respect of Non-Guarantor Restricted Subsidiaries, together with any Indebtedness incurred by Non-Guarantor Restricted Subsidiaries pursuant to Section 8.03(u) and to Section 8.03(v) below not to exceed the convertible notes; provided that, all such Indebtedness in respect greater of the convertible notes shall be unsecured (A) $190,000,000 and subordinated in right (B) 40% of payment to the payment in full (other than Consolidated EBITDA at any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligationsone time outstanding;
(lp) other unsecured Indebtedness(a) Indebtedness incurred pursuant to the Term Loan Facility by the Borrowers or any Loan Party in an aggregate principal amount of commitments, loans or letters of credit thereunder (without any duplication thereof) not to exceed the sum of (x) $900,000,000 and (y) any incremental loan facilities permitted thereunder as in effect on the Amendment No. 1 Effective Date; provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable is subject to the Administrative Agent terms of the Intercreditor Agreement in its sole discretion. For purposes the capacity of determining compliance with this Section 7.03“Term Loan Obligations” and (b) after consummation of the Ventas Purchase Option, all Obligations outstanding Indebtedness assigned to the Ventas Assignees under the Term Loan Documents will be deemed Facility in an amount equal to have been incurred the Ventas Purchase Option Term Loan Amount (as defined in reliance only the Term Loan Credit Agreement as in effect on the exception Original Closing Date) (the “Ventas Purchase Option Term Loans”) (provided that the guarantees in clause (a) respect of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder by Parent, Borrowers and expressly Loan Parties thereunder shall be subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.Non-Ventas Purchase Option ABL Loans);
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan DocumentsDocuments (including Indebtedness in respect of any Incremental Facility established in accordance with the terms of Section 11.01(b));
(b) Surviving Indebtedness listed of the Borrower and its Subsidiaries outstanding on the Closing Date and set forth in Schedule 7.03(b)8.03, but and renewals, refinancings, replacements and extensions thereof that do not any extensions, renewals or replacements (i) increase the amount of such Indebtedness (except (i) renewals by the amount of a reasonable premium or other reasonable amount paid, accrued and extensions expressly provided for unpaid interest and fees and expenses reasonably incurred, in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and connection therewith), (ii) refinancings and extensions shorten the final maturity or the average life to maturity of any such Indebtedness if or (iii) cause the terms and conditions thereof are not of subordination, if any, taken as a whole, of such Indebtedness to be materially less favorable to the obligor thereon or to the Lenders than the terms of subordination, taken as a whole, under the 2010 Junior Note Indenture, as in effect on the Closing Date;
(c) intercompany Indebtedness being refinanced and Guarantees with respect to Indebtedness, so long as in each case the related Investment made by the holder of such Indebtedness or extendedby the provider of such Guarantee, as applicable, is permitted under Section 8.02 (other than Section 8.02(f));
(d) 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 hedging or 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 (including Swap Contracts entered into 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 the Borrower or any Subsidiary), 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;
(e) (i) purchase money Indebtedness (excluding obligations in respect of Capital Leases and Synthetic Lease Obligations) hereinafter incurred by the Borrower or any of its Subsidiaries in an aggregate principal amount that does not exceed $70,000,000 at any one time outstanding; and (ii) Indebtedness hereinafter incurred by the Borrower or any of its Subsidiaries under any Channel Financing Facility in an aggregate principal amount that, when taken together with the aggregate then outstanding principal amount of Indebtedness incurred under all other Channel Financing Facilities of the Consolidated Parties, does not exceed $30,000,000 at any one time outstanding;
(f) obligations of the Borrower or any of its Subsidiaries in connection with any Permitted Receivables Financing, to the extent such obligations constitute Indebtedness;
(g) Indebtedness of any Person in existence at the time that such Person becomes a Subsidiary after the Closing Date; provided that such Indebtedness is not created in contemplation of or in connection with such Person becoming a Subsidiary, and renewals, refinancings, replacements and extensions thereof that do not (i) increase the amount of such Indebtedness (except by the amount of a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection therewith) or (ii) shorten the final maturity or the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromIndebtedness;
(ch) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in arising from the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case honoring by a bank or other financial institution of additional Capital Leases a check, draft or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge similar instrument drawn against interest rates, foreign exchange rates or commodities pricing risks incurred insufficient funds in the ordinary course of business and not for speculative purposesextinguished within two Business Days of its incurrence;
(fi) Indebtedness incurred by Guarantees of obligations of any Loan Consolidated Party for customary indemnification, purchase price adjustments and similar obligations arising under purchase and sale agreements entered into in respect of Acquisitions and Dispositions permitted under Section 8.02 or Section 8.05, as applicable, and reimbursement obligations of any Consolidated Party in respect of letters of credit, bank guaranteessurety bonds and performance bonds delivered in connection therewith;
(j) Indebtedness of Excluded Subsidiaries in an aggregate principal amount which shall not, bankers’ acceptancesat the time when created, warehouse receipts incurred or similar instruments assumed, exceed $100,000,000 at any time outstanding;
(k) additional unsecured Indebtedness of the Borrower (and unsecured Guarantees thereof by any Guarantor); provided that (i) the terms, taken as a whole, of any such Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are not materially less favorable to the Consolidated Parties or created the Lenders than the terms of documents governing or evidencing the 2009 Senior Notes, as in effect on the ordinary course Closing Date, (ii) either (A) the proceeds of businesssuch Indebtedness are used to refinance then existing Indebtedness of the Borrower or (B) the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, including in respect upon giving effect on a Pro Forma Basis to the incurrence of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or such additional Indebtedness and to the concurrent retirement of any other Indebtedness of any Consolidated Party, (1) the Consolidated Total Leverage Ratio would not exceed 4.50 to 1.00 and (2) the Loan Parties would otherwise be in compliance with the financial covenants set forth in Section 8.11(a) - (d) as of the most recent fiscal quarter end with respect to reimbursementwhich the Administrative Agent has received the Required Financial Information and (iii) in the case of Indebtedness incurred pursuant to clause (ii)(B) above, the aggregate principal amount of all such Indebtedness incurred after the Closing Date (together with any accumulated, pay-type obligations regarding workers compensation claimsin-kind, or capitalized interest thereon) shall not exceed $200,000,000;
(gl) additional unsecured Subordinated Indebtedness incurred of the Borrower (and unsecured Guarantees thereof by any Loan Party Guarantor that are subordinated to the Obligations on identical terms); provided that (i) the terms, taken as a whole, of any such Subordinated Indebtedness, and of any agreement entered into and of any instrument issued in respect connection therewith, are not materially less favorable to the Consolidated Parties or the Lenders than the terms of accounts payable documents governing or evidencing the 2010 Junior Notes, as in effect on the Closing Date, and (ii) either (A) the proceeds of such Subordinated Indebtedness are used to trade creditors for goods and services and current operating liabilities (not the result refinance then existing Indebtedness of the borrowing Borrower or (B) the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to the incurrence of moneysuch additional Subordinated Indebtedness and to the concurrent retirement of any other Indebtedness of any Consolidated Party, (1) incurred the Consolidated Total Leverage Ratio would not exceed 4.50 to 1.00 and (2) the Loan Parties would otherwise be in compliance with the ordinary course financial covenants set forth in Section 8.11(a) - (d) as of business in accordance the most recent fiscal quarter end with customary terms and paid within respect to which the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in Administrative Agent has received the ordinary course of businessRequired Financial Information;
(i) Indebtedness arising under Capital Leases and Synthetic Lease Obligations hereinafter incurred by the Borrower or any of its Subsidiaries in an aggregate principal amount that, when taken together with the Remaining Present Value of such outstanding Capital Leases and Synthetic Lease Obligations relating to Sale and Leaseback Transactions entered into after the Closing Date in accordance with Section 8.05(e)(ii), does not exceed $150,000,000 at any time outstanding;
(n) other secured or unsecured Indebtedness of Loan Parties in an aggregate principal amount which shall not exceed $20,000,000 at any time outstanding;
(o) other unsecured Indebtedness of Loan Parties in an aggregate principal amount which shall not exceed $25,000,000 at any time outstanding; and
(p) other unsecured Indebtedness maturing after the Maturity Date; provided that 100% of the net proceeds of such Indebtedness are used to repay, refinance or replace Indebtedness outstanding under this Agreement and the Notes.
(q) Notwithstanding any provision to the contrary set forth in this Section 8.03, the aggregate outstanding principal amount of all Indebtedness incurred by the Excluded Subsidiaries (other than (i) any Loan Party owing Indebtedness owed to any other Loan Consolidated Party and (ii) renewals, refinancings, replacements and extensions of Indebtedness owed existing on the Closing Date and permitted by a Subsidiary that is Section 8.03(b)), at any time on or after the Closing Date shall not a Guarantor Subsidiary exceed an amount equal to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (Ai) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and $250,000,000 minus (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(mii) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations then outstanding Attributed Principal Amount under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentPermitted Receivables Financing.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, Indebtedness (exclusive of trade debt) except the following, without duplication (which constitutes “Permitted Indebtedness”):
in respect of (a) Obligations of the Loan Parties under the Loan Documents;
Indebtedness to Lenders; (b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided incurred for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness Capital Expenditures permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
Section 7.6 hereof; (c) Indebtedness disclosed on Schedule 5.8(b) hereto, together with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; refinancing, refunding, renewal, modification, extension or replacement thereof (provided that any such Indebtedness (x) in refinancing, refunding, renewal, modification, extension or replacement may not increase the case of additional Capital Leases principal amount or purchase money Indebtedness, shall be secured by extend the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence maturity date of such Indebtedness), as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) Indebtedness owed to Customers of such Borrower arising from the SBA PPP Loan;
receipt of advance payments from a Customer, (e) Indebtedness obligations of such Borrower in respect of Swap Contracts designed to hedge against interest ratesperformance bonds and completion, foreign exchange rates or commodities pricing risks incurred guarantee, surety and similar bonds, in each case obtained in the ordinary course of business to support statutory and not for speculative purposes;
contractual obligations arising in the Ordinary Course of Business, (f) Indebtedness incurred by any Loan Party in respect arising from the honoring of letters a bank or other financial institution of credita check, bank guarantees, bankers’ acceptances, warehouse receipts draft or other similar instruments issued or created instrument drawn against insufficient funds in the ordinary course Ordinary Course of businessBusiness, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
and (g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed not to exist pursuant to exceed the aggregate amount of $500,000 at any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03time outstanding. Notwithstanding anything herein to the contrary hereincontrary, no Loan Party shall have outstandingBorrower shall, create or after the Closing Date, incur any additional Indebtedness owing to any other Loan Party or any Affiliate or employee Key until the financing statement in favor of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated Key, as of record on the Closing Date, has been amended to limit the Loans and other Obligations in a manner and on terms satisfactory collateral described therein to the Administrative Agentspecific office equipment financed by Key.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Osteotech Inc)
Indebtedness. Create, assume, incur, assume or suffer to exist or otherwise become or remain liable in respect of any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except other than: (i) renewals Indebtedness evidenced by the Note(s); (ii) existing Indebtedness, listed on a schedule provided to Lender as of the Closing Date, and extensions expressly provided for in the agreements evidencing any such Indebtedness as case of the same are line of credit with Northwest Farm Credit Services, PCA in effect place on the date of this Agreement Loan Agreement, any subsequently utilized commitment under that line of credit; (iii) purchase money Indebtedness, including capital leases, not to exceed $1,000,000.00 annually; (iv) Indebtedness related to Permitted Liens; (v) Indebtedness incurred or assumed after the date hereof, which has been subordinated to the obligations of Borrower to Lender hereunder and (ii) refinancings and extensions of any such Indebtedness if under the Notes on terms and conditions thereof are not less favorable satisfactory to Lender; (vi) Timber Fund Indebtedness, to the obligor thereon or to extent allowed under the Lenders governing documents of such Timber Fund; (vii) additional secured Indebtedness of a Subsidiary (other than that provided for under Section 7.03 f.(vi) above) in aggregate over the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that term of the Indebtedness being refinanced or extendedLoan(s), not to exceed $8,000,000.00; (viii) additional unsecured Indebtedness, in the aggregate over the term of the Loan(s), not to exceed $10,000,000.00; provided, such however, total additional Indebtedness permitted allowed under the immediately preceding clause (ivii) or and (iiviii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 10,000,000.00, in the aggregate at any time outstandingpoint in time, over the term of the Loan(s); provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (yix) in obligations to secure the case performance of purchase money Indebtednessbids, shall constitute not less trade contracts (other than 75% for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks a like nature incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Master Loan Agreement (Pope Resources LTD Partnership)
Indebtedness. CreateNone of the Loan Parties will create, incur, assume incur or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;except:
(i) Indebtedness of (i) any Loan Party owing to any under this Credit Agreement and the other Loan Party and Documents (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to including, without limitation, any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of any Incremental Facility);
(ii) Permitted Debt;
(iii) obligations of the convertible notes; provided that, all such Indebtedness Company under or in respect of the convertible notes shall be unsecured and subordinated in right of payment interest rate Swap Contracts up to an aggregate notional principal amount not to exceed at any time an amount equal to the payment Commitments of all the Lenders in full (other than the aggregate at such time, provided that the term of any payment as a result of such interest rate Swap Contract does not extend beyond the conversion of such convertible notes into Equity Interests of Parent) last Maturity Date applicable to the ObligationsFacilities as in effect at the time of entry into such interest rate Swap Contract;
(liv) Guarantees and letters of credit permitted by Section 7.13;
(v) Indebtedness of the Company owed to any Restricted Subsidiary and Indebtedness of any Restricted Subsidiary owed to any other unsecured IndebtednessRestricted Subsidiary;
(vi) Indebtedness issued and outstanding on the Agreement Date to the extent set forth on Schedule 7.12 and any renewals, provided that such extensions or refundings thereof in a principal amount not to exceed the amount so renewed, extended or refunded;
(vii) Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateincurred as consideration for any acquisition permitted hereunder and consisting solely of a deferred or contingent obligation to deliver Parent Company Stock; and
(mviii) Other Indebtedness of the 2021 Preferred Stock on terms reasonably acceptable Company or any Restricted Subsidiary, to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause extent not otherwise permitted by clauses (ai) through (vii) of this Section 7.03. Notwithstanding anything to 7.12, so long as the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee aggregate principal amount of any Loan Party unless all such Indebtedness is expressly permitted hereunder and expressly subordinated outstanding at any one time pursuant to this clause (viii) shall not exceed the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentsum of $60,000,000.
Appears in 1 contract
Sources: Credit Agreement (CSC Holdings Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties under the Loan DocumentsOrdinary Course Indebtedness;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts 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 Ordinary Course of business Business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(hc) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of businessIntra-Company Debt;
(id) Indebtedness of Borrowers, the Guarantors and their Subsidiaries (iwhether secured or unsecured) which is Recourse to Borrowers, the Guarantors or any Loan Party owing to any other Loan Party and of their Subsidiaries (ii) but excluding Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed and the Casden Loan Documents) in an aggregate principal amount not to exceed at any time an amount equal to the sum of (v) $120,000,000, plus (w) while the Lincoln Place Construction Financing is outstanding, the lesser of $151,000,000 or any portion of the Lincoln Place Construction Financing which constitutes Recourse Indebtedness, plus (x) until the earlier of June 30, 2002 and the date that the Villa Azure Construction Financing is refinanced, the lesser of $75,000,000 or any portion of the Villa Azure Construction Financing which constitutes Recourse Indebtedness, plus (y) until the earlier of September 30, 2002 and the date that the Park Vista Construction Financing is refinanced, the lesser of $27,200,000 or any portion of the Park Vista Construction Financing which constitutes Recourse Indebtedness, plus (z) commencing upon the earlier of October 1, 2002 and the date on which the Indebtedness described in both clauses (x) and (y) have been incurred in reliance only refinanced, Indebtedness consisting of Park La Brea Construction Debt, provided that the aggregate amount of any Park La Brea Construction Debt included under this clause (z) shall not exceed an aggregate amount equal to $60,000,000 at any time and shall not be outstanding for longer than six months from the date of assumption or incurrence, as applicable. Such Recourse Indebtedness outstanding on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness date hereof is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and listed on terms satisfactory to the Administrative Agent.Schedule 7.01(d);
Appears in 1 contract
Sources: Credit Agreement (Apartment Investment & Management Co)
Indebtedness. Create(a) The Borrower shall not directly or indirectly create, incur, assume or assume, suffer to exist or otherwise be or become liable with respect to any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):Indebtedness except:
(ai) Obligations of the Loan Parties Indebtedness under the Loan Documentsthis Agreement;
(bii) Surviving Indebtedness listed on Schedule 7.03(b)accounts payable (other than for borrowed money) arising, but not any extensionsand accrued expenses incurred, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any ordinary course of business so long as such Indebtedness as the same accounts payable are in effect on payable within sixty (60) days of the date of this Agreement the respective goods are delivered or the respective services are rendered and (ii) refinancings unless such accounts payable are being contested in good faith and extensions of any such Indebtedness by appropriate legal, administrative or other proceedings diligently conducted and so long as adequate reserves have been established with respect thereto in accordance with the Borrower’s Accounting Principles, and only if the terms and conditions thereof failure to pay such accounts payable could not reasonably be expected to have a Material Adverse Effect) are not less favorable to the obligor thereon or to the Lenders no more than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause ninety (i90) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromdays past due;
(ciii) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not or lease obligations to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks extent incurred in the ordinary course of business to finance the acquisition or licensing of intellectual property or items of equipment (and Indebtedness incurred to finance any such obligations); provided, that (A) if such obligations are secured, they are secured only by Liens upon the equipment or intellectual property being financed and (B) the aggregate principal amount and the capitalized lease portion of such obligations at any time outstanding do not for speculative purposesat any time exceed $10,000,000 in the aggregate;
(fiv) Indebtedness incurred by any Loan Party in respect of the Permitted Swap Agreements;
(v) Subordinated Shareholder Loans; and
(vi) Other unsecured (except in the case of cash collateralized letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created which Indebtedness may be secured) Indebtedness to be used for working capital purposes in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party letters of credit, cash deposits and guarantees in respect of accounts payable to trade creditors connection with bids for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured IndebtednessPPAs, provided that the principal amount of such Indebtedness matures obligations outstanding do not less than one hundred eighty (180) days following at any time exceed $20,000,000 in the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentaggregate.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):
Indebtedness except: (a) Obligations of the Loan Parties under the Loan Documents;
Obligations; (b) Surviving Indebtedness and obligations owing under Hedge Agreements entered into in order to manage existing or anticipated interest rate, exchange rate or commodity price risks and not for speculative purposes; (c) Indebtedness existing on the Closing Date and listed on Schedule 7.03(b)8.1, but not and any extensionsrefinancings, refundings, renewals or replacements extensions thereof; provided that (i) the principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except (i) renewals by an amount equal to a reasonable premium or other reasonable amount paid, and extensions expressly provided for fees and expenses reasonably incurred, in the agreements evidencing connection with such refinancing and by an amount equal to any such Indebtedness as the same are in effect on the date of this Agreement and existing commitments unutilized thereunder, (ii) refinancings the final maturity date and extensions weighted average life of such refinancing, refunding, renewal or extension shall not be prior to or shorter than that applicable to the Indebtedness immediately prior to such refinancing, refunding, renewal or extension and (iii) any refinancing, refunding, renewal or extension of any such Subordinated Indebtedness if the shall be (A) on subordination terms and conditions thereof are not less at least as favorable to the obligor thereon or to Lenders and (B) not materially more restrictive on the Lenders Parent Borrower and its Subsidiaries than the Subordinated Indebtedness being refinanced or extendedrefinanced, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced refunded, renewed or extended; provided, such Indebtedness permitted under the immediately preceding clause (id) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Attributable Indebtedness with respect to Capital Lease Obligations, Synthetic Leases and purchase money Indebtedness in an aggregate amount not to exceed $1,000,000 in the aggregate 75,000,000150,000,000 at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.85 103755581_3 119311063_5
Appears in 1 contract
Sources: Credit Agreement (Ubiquiti Inc.)
Indebtedness. CreateThe Credit Parties will not create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness created hereunder and under the other Loan Documents;
(b) Surviving Existing Debt on the Closing Date which is set forth in Schedule 8.1 and has been designated on such schedule as Indebtedness listed on Schedule 7.03(b)that will remain outstanding following the funding of the initial Loans, but not and any extensionsextension, renewals renewal, refunding or replacements replacement of any such Indebtedness except Indebtedness, provided that (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the extension, renewal, refunding or replacement is pursuant to terms and conditions thereof that are not less favorable to the obligor thereon or to Credit Parties and the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that terms of the Indebtedness being refinanced extended, renewed, refunded or extended; providedreplaced and (ii) after giving effect to such extension, renewal, refunding or replacement, the amount of such Indebtedness is not greater than the amount of Indebtedness outstanding immediately prior to such extension, renewal, refunding or replacement;
(c) Intercompany loans among the Parent and its Subsidiaries (or among any Subsidiaries), provided that (i) (A) intercompany loans permitted by this clause (c) shall not exceed $800,000 in the aggregate at any time outstanding with respect to any loans to Spandex Limited, (B) intercompany loans permitted by this clause (c) shall not exceed $400,000 in the aggregate at any time outstanding with respect to any loans to Ultramark Adhesive Products Ltd., (C) intercompany loans permitted by this clause (c) shall not exceed $300,000 in the aggregate with respect to any loans made by the Borrowers and their Domestic Subsidiaries to any Applicable Credit Party (other than Spandex Limited and Ultramark Adhesive Products Ltd.) and/or to any Subsidiary of an Applicable Credit Party other than a Domestic Subsidiary, and (D) notwithstanding clauses (A), (B), and (C) of this clause (c) (but nevertheless also subject to the individual limits set forth therein), (x) the aggregate amount of intercompany loans at any time outstanding permitted by this clause (c) shall not exceed $1,500,000, and (y) any intercompany loan permitted by this clause (c) will cease to be permitted if it is not repaid in full within 30 days after it is made, (ii) with respect to any of such intercompany loans that are evidenced by one or more promissory notes, such promissory notes are pledged to the Agent pursuant to the terms hereunder, and (iii) there are no restrictions whatsoever on the ability of the applicable obligor to repay such loan, and further provided that book entry extensions of credit for product purchases in the ordinary course of business will not be deemed to be Indebtedness permitted under so long as (i) the immediately preceding amount of such extensions of credit that are made after the Closing Date does not exceed the Permitted Book Entry Amount in the aggregate at any time with respect to amounts owed by Persons that are organized outside of the United States to Persons that are organized in the United States, (ii) none of such extensions of credit for product purchases that are made after the Closing Date may be outstanding for more than 90 days, except that up to $500,000 of such extensions of credit for product purchases that are made after the Closing Date may be outstanding at any time for more than 90 days, but less than 150 days, and (iii) all such extensions of credit which are outstanding in whole or in part on the Closing Date shall be listed on Schedule 8.1 (and amounts in excess of the thresholds, or outstanding for more than the number of days, set forth in clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect this proviso or which were made prior to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount Closing Date but are not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, listed on Schedule 8.1 shall be secured by the asset subject deemed to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetbe intercompany loans);
(d) other Indebtedness incurred after the SBA PPP LoanClosing Date (determined on a consolidated basis without duplication in accordance with GAAP) consisting of Capital Lease Obligations and/or secured by Liens permitted under Section 8.2(h), in an aggregate principal amount at any time outstanding not in excess of $2,000,000;
(e) Indebtedness under the Tranche B Documents in respect an aggregate principal amount not in excess of Swap Contracts designed to hedge against $71,500,000 (plus interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposesfees payable thereunder);
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsGuarantees permitted under section 8.3;
(g) Contingent Indebtedness incurred by any Loan Party in respect of accounts payable (x) up to trade creditors for goods $85,000,000 under the GECC Vendor Program Arrangement, (y) up to $12,500,000 under the Canadian Vendor Program Arrangement, and services and current operating liabilities (not the result of the borrowing of moneyz) incurred up to $40,000,000 in the ordinary course of business in accordance with customary terms and paid within aggregate under the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPOther Vendor Program Arrangements;
(h) Indebtedness consisting owing under that certain Loan Agreement dated as of guarantees resulting from endorsement December 1, 1984 between the Connecticut Development Authority and the Parent, that certain Reimbursement Agreement dated as of negotiable instruments for collection by December 1, 1984 between the Parent and Citibank, N.A., and any Loan Party in extension, renewal, refunding or replacement of such Indebtedness, provided that (i) such extension, renewal, refunding or replacement is pursuant to terms that are not less favorable to the ordinary course Credit Parties and the Lenders than the terms of businessthe Indebtedness being extended, renewed, refunded or replaced and (ii) after giving effect to such extension, renewal, refunding or replacement, the amount of such Indebtedness is not greater than the amount of such Indebtedness outstanding immediately prior to such extension, renewal, refunding or replacement;
(i) Unsecured Indebtedness in a principal amount not in excess of $5,000,000 at any one time outstanding (plus interest and fees payable with respect thereto). The Indebtedness permitted by clauses (a) through (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.038.1 are referred to herein as "Permitted Indebtedness". Notwithstanding anything Each of clauses (a) through (i) of this Section 8.1 constitutes an independent and separate exception to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations covenant set forth in a manner and on terms satisfactory to the Administrative Agentthis Section 8.1.
Appears in 1 contract
Sources: Credit and Security Agreement (Gerber Scientific Inc)
Indebtedness. CreateThe Parent shall not, and shall cause each Restricted Subsidiary not to, directly or indirectly, create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):other than:
(a) Obligations of the Loan Parties Indebtedness under the Loan Note Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of unsecured intercompany Indebtedness; provided that if such Indebtedness except (i) renewals and extensions expressly provided for in is owed by the agreements evidencing Parent or any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are its Subsidiaries to a Person that is not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provideda Note Party, such Indebtedness must be Subordinated Indebtedness and shall be permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromby Section 9.5(c);
(c) Indebtedness with respect to Capital Leases outstanding on the Closing Date and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at listed on Schedule 9.6 and any time outstandingrefinancings, refundings, renewals or extensions thereof; provided that any the amount of such Indebtedness (x) in is not increased at the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence time of such Indebtednessrefinancing, as the case may berefunding, and (y) in the case of purchase money Indebtednessrenewal or extension or, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetreplacement Indebtedness, is not increased above the amount outstanding on the Closing Date, except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder;
(d) obligations under Swap Contracts entered into by the SBA PPP LoanCompany for bona fide hedging activities and not for speculative purposes;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest ratescapital leases and Synthetic Lease Obligations within the limitations set forth in Section 9.4(o); provided, foreign exchange rates or commodities pricing risks incurred in however, that the ordinary course aggregate amount of business and all such Indebtedness at any one time outstanding shall not for speculative purposesexceed $20,000,000;
(f) Indebtedness incurred by of the Company or any Loan Party Note Guarantor under any Credit Facility in respect an aggregate principal amount outstanding at any time not to exceed the sum of letters (i) $650,000,000 plus (ii) an additional amount if, after giving pro forma effect to the incurrence of creditsuch additional amount, bank guaranteesthe Consolidated Secured Leverage Ratio calculated on a pro forma basis is equal to or less than 3.50:1.00 (assuming all such additional amounts were secured, bankers’ acceptanceswhether or not so secured, warehouse receipts or similar instruments issued or created in and including for this purpose the ordinary course full amount of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness draw with respect to reimbursement-type obligations regarding workers compensation claimsany revolving credit facility (whether or not borrowed));
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPPermitted Unsecured Indebtedness;
(h) Subordinated Indebtedness consisting or unsecured senior Indebtedness of guarantees resulting from endorsement the Parent or any Restricted Subsidiary; provided that after giving pro forma effect to the incurrence of negotiable instruments for collection such Indebtedness, the Interest Coverage Ratio, calculated on a Pro Forma Basis, as of the most recently ended fiscal quarter would not be less than 2.00:1.00; provided, further, that (i) such Indebtedness shall have a maturity date at least six months after the scheduled maturity date of the Notes, (ii) such Indebtedness shall have a weighted average life to maturity longer than the weighted average life to maturity of the Obligations of the Note Parties in respect of the Notes, (iii) such Indebtedness shall have covenants no more restrictive than those in this Agreement as in effect at the time of the issuance or incurrence thereof and (iv) the aggregate amount of Indebtedness incurred by any Loan Party in Restricted Subsidiaries that are Non-Note Parties, when aggregated with the ordinary course amount of businessIndebtedness assumed by Restricted Subsidiaries that are Non-Note Parties pursuant to clause (i) below, does not exceed $25,000,000;
(i) Indebtedness of any Person that becomes a Restricted Subsidiary after the Closing Date pursuant to a Permitted Investment, which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary and was not incurred in contemplation of such Person becoming a Restricted Subsidiary, that is non-recourse to (and is not assumed by any of) the Company or any Restricted Subsidiary (other than any Subsidiary of such Person that is a Subsidiary on the date such Person becomes a Restricted Subsidiary after the Closing Date); provided that (i) any Loan Party owing after giving pro forma effect to any other Loan Party the incurrence of such Indebtedness, either (a) the Interest Coverage Ratio of the Parent and its Restricted Subsidiaries, calculated on a Pro Forma Basis, as of the most recently ended fiscal quarter would not be less than 2.00:1.00 or (b) the Interest Coverage Ratio of the Company and its Restricted Subsidiaries, calculated on a Pro Forma Basis, is greater than immediately prior to such incurrence and (ii) the aggregate amount of Indebtedness owed assumed by a Subsidiary Restricted Subsidiaries that is not a Guarantor Subsidiary to any Loan Party to are Non-Note Parties, when aggregated with the extent such amount of Indebtedness is permitted as an Investment incurred by Restricted Subsidiaries that are Non-Note Parties pursuant to Section 7.02; providedclause (h) above, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agentdoes not exceed $25,000,000;
(j) unsecured Indebtedness (of the Company or any Restricted Subsidiary not otherwise permitted hereunder in an aggregate principal amount, which when aggregated with the principal amount of all other than for borrowed money) that may be deemed to exist Indebtedness then outstanding and incurred pursuant to this clause (j), does not at any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Partiesone time outstanding exceed $50,000,000;
(k) Indebtedness incurred pursuant to a Permitted Debt Offering so long as the aggregate principal amount of such Indebtedness, together with any Indebtedness outstanding pursuant to Section 9.6(f) in respect excess of $550,000,000, does not exceed the convertible notes; provided thatsum of (i) $100,000,000 plus (ii) an additional amount if, after giving pro forma effect to the incurrence of such additional amount, the Consolidated Secured Leverage Ratio calculated on a pro forma basis is equal to or less than 3.50:1.00 (assuming all such Indebtedness in additional amounts were secured, whether or not so secured, and including for this purpose the full amount of draw with respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full any revolving credit facility (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;whether or not borrowed)); and
(l) other unsecured with respect to any of the foregoing Indebtedness, provided that any Guarantee of such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in given by a manner and on terms satisfactory to the Administrative AgentNote Guarantor.
Appears in 1 contract
Sources: Note Purchase Agreement (Global Cash Access Holdings, Inc.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist exist, directly or indirectly, any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness incurred under this Agreement and the Loan Parties under the other Loan Documents, including, for the avoidance of doubt, any Incremental Loans permitted to be incurred hereunder;
(b) Surviving Indebtedness listed outstanding on Schedule 7.03(b)the Closing Date, but not any extensions, renewals or replacements of such Indebtedness except including (i) renewals the Indebtedness under the Second Out Term Loan Documents in an aggregate principal amount of $225,000,000 (plus the amount of interest paid in kind and extensions expressly provided for in added to the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement principal thereof) and (ii) refinancings Indebtedness under outstanding letters of credit;
(c) Indebtedness consisting of Hedging Obligations, in each case entered into in the ordinary course of business and extensions not for speculative purposes or taking a “market view”; 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 in respect of a revolving credit facility in a maximum principal amount not to exceed $25,000,000 at any time outstanding, which maximum principal amount may be increased to include a letter of credit subfacility in an aggregate face amount not to exceed, together with the face amount under any letter of credit facility under subclause (f), $7,500,000, so long as there is no obligor under any such Indebtedness if under this clause (d) that is not a Loan Party hereunder;
(e) Indebtedness of Borrower and its Subsidiaries in respect of Purchase Money Obligations, Synthetic Lease Obligations and Capital Lease Obligations in an aggregate amount (together with any refinancing thereof permitted under clause (m)) not to exceed, at any time outstanding, $25,000,000, provided, however, that, in the terms case of Purchase Money Obligations, (A) such Indebtedness is incurred within 120 days after such acquisition, installation, construction, repair, replacement or improvement of such fixed or capital assets (including Equity Interests of any Person owning the applicable fixed or capital assets) by such Person and conditions (B) the amount of such Indebtedness does not exceed 100% of the cost of such acquisition, installation, construction, repair, replacement or improvement, as the case may be;
(f) Indebtedness with respect to a letter of credit facility in a maximum face amount not to exceed at any time, together with the maximum face amount of any letter of credit subfacility under clause (d) above, $7,500,000;
(g) Indebtedness in respect of bid, performance or surety bonds issued for the account of any Company in the ordinary course of business, including guarantees or obligations of any Company incurred in the ordinary course of business with respect to letters of credit supporting such bid, performance or surety obligations (in each case other than for an obligation for money borrowed), in an aggregate amount at any time outstanding not to exceed $5,000,000;
(h) Contingent Obligations of any Company in respect of Indebtedness otherwise permitted under this Section 6.01 (other than this Section 6.01(h));
(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; provided, however, that such Indebtedness is extinguished within ten (10) Business Days of incurrence;
(j) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(k) Indebtedness of any Foreign Subsidiary in an aggregate outstanding principal amount for all such Foreign Subsidiaries in an amount not to exceed, at any time outstanding, $5,000,000, provided that such Indebtedness is not directly or indirectly recourse to any of the Companies or of their respective assets, other than to such Foreign Subsidiary or any Subsidiary thereof are which is a Foreign Subsidiary;
(l) Indebtedness of any Company in an aggregate principal amount for all Companies in an amount not less favorable to exceed, at any time outstanding, $10,000,000, provided that no Event of Default shall have occurred and be continuing at the obligor time such Indebtedness is incurred or would result from the incurrence thereof; provided further that the aggregate principal amount of Indebtedness at any time outstanding incurred pursuant to this subclause (l) by any Company that is not a Guarantor shall not exceed $5,000,000;
(m) Indebtedness which represents a refinancing or renewal of any of the Indebtedness described in any of clauses (b), (e), (s) or (t) of this Section 6.01; provided that (A) any such refinancing Indebtedness is in an aggregate principal amount (or aggregate amount, as applicable) not greater than the aggregate principal amount (or aggregate amount, as applicable) of the Indebtedness being renewed or refinanced, plus the amount of any reasonable premiums required to be paid thereon and reasonable fees and expenses associated therewith, (B) such refinancing Indebtedness has a later or equal final maturity and longer or equal weighted average life to the Lenders maturity than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (BC) exceed the covenants, events of default, subordination (including lien subordination) and other terms, conditions and provisions thereof (including any guarantees thereof or security documents in a principal amount respect thereof) shall be, in the aggregate, no less favorable to the Administrative Agent, the Collateral Agent and the Lenders than those contained in the Indebtedness being renewed, extended renewed or refinanced, or (CD) be incurred, created or assumed if any no Default or Event of Default has occurred and is continuing or would result therefromtherefrom and (E) any such Indebtedness that is refinancing or renewing any Indebtedness under the Second Out Term Loan Documents and Section 6.01(s) will be subject to the Intercreditor and Collateral Agency Agreement;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(fn) Indebtedness incurred to pay premiums for insurance policies maintained by Borrower or any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party Subsidiary thereof in the ordinary course of business;
(io) Indebtedness of (i) any Loan Party owing Contingent Obligations with respect to any bonds issued to support workers’ compensation, unemployment or other Loan Party insurance or self-insurance obligations, and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, thatsimilar obligations, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance incurred in the ordinary course of business of the Loan Partiesbusiness;
(kp) Indebtedness constituting indemnification, deferred purchase price adjustments, earn-outs or other similar contingent payment obligations incurred in connection with any Investment or Disposition not prohibited hereunder (other than, in the case of a Disposition, guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition), so long as the amount does not exceed the gross proceeds actually received by Borrower or the applicable Subsidiary, as the case may be, in connection with any such Disposition;
(q) Indebtedness in respect of take-or-pay obligations contained in supply agreements entered into in the convertible notes; provided that, all such Indebtedness in respect ordinary course of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligationsbusiness;
(lr) other unsecured IndebtednessIndebtedness representing deferred compensation to directors, officers, employees, members of management and consultants of Borrower or any of its Subsidiaries incurred in the ordinary course of business;
(s) Indebtedness consisting of any “Incremental Term Loans” as defined and incurred under the Second Out Term Loan Credit Agreement as in effect on the date hereof, incurred in an aggregate principal amount not to exceed $25,000,000 plus the amount of interest that is paid in kind and added to principal thereof minus the original principal amount of Incremental Loans incurred under Section 2.17;
(t) Indebtedness of any Person that becomes a Subsidiary after the date hereof, or Indebtedness of any Person that is assumed by Borrower or any of its Subsidiaries in connection with the acquisition of assets by Borrower or any of its Subsidiaries, in an aggregate principal amount not to exceed $20,000,000 at any time outstanding for all such Subsidiaries; provided that such Indebtedness matures (i) in the case of Indebtedness of any Person that becomes a Subsidiary after the date hereof, exists at the time such Person becomes a Subsidiary, (ii) is not less created in anticipation or contemplation of such Person becoming a Subsidiary and (iii) is not directly or indirectly recourse to any of the Companies or any of their respective assets, other than one hundred eighty to the Person that becomes a Subsidiary or, in the case of an acquisition of assets, to the Person acquiring such assets;
(180u) days following Indebtedness in an outstanding principal amount not to exceed $100,000,000 at any time, so long as (i) the Last Out Maturity DateTotal Net Leverage Ratio does not exceed the Incurrence Leverage Level at the time of incurrence of such Indebtedness and immediately after giving effect thereto, (ii) such Indebtedness is not incurred prior to September 30, 2020, (iii) no Default or Event of Default exists before and immediately after the incurrence of such Indebtedness, (iv) there is no obligor in respect of such Indebtedness that is not a Loan Party and (v) Borrower shall have delivered an Officers’ Certificate to the Administrative Agent certifying as to compliance with the foregoing requirements in clauses (i)-(iv);
(v) Finance Lease Obligations in an amount not to exceed $75,000,000; and
(mw) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent Indebtedness constituting Investments in its sole discretioncompliance with Section 6.04. For purposes of determining compliance with this Section 7.03any dollar-denominated restriction on the incurrence of Indebtedness, all Obligations outstanding under the Loan Documents will dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to extend, replace, refund, refinance, renew or defease other Indebtedness denominated in a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance, such dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless connection with such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentrefinancing.
Appears in 1 contract
Sources: Senior Secured Term Loan Credit Agreement (Internap Corp)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except Borrower in respect of (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement Existing Subordinated Obligations and (ii) refinancings and extensions in respect of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any New Subordinated Obligations incurred when no Default or Event of Default has occurred and is remains continuing or would result therefrom, and provided that giving pro forma effect to the incurrence of New Subordinated Obligations as of the last day of the then most recently ended Fiscal Quarter, Borrower is in compliance with the financial covenants set forth in Article VII;
(c) other Indebtedness outstanding on the date hereof and listed on Schedule 7.03 and any refinancings, refundings, renewals or extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder;
(d) Contingent Obligations of the Borrower in respect of Indebtedness otherwise permitted hereunder;
(e) obligations (contingent or otherwise) of the Borrower or any Restricted Subsidiary existing or arising under Swap Contracts in respect of Indebtedness having an aggregate notional amount not in excess of $200,000,000;
(f) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.01(d); provided, however, that:
(i) the aggregate amount of all such Indebtedness secured by ▇▇▇▇▇ on personal property and fixtures located at or associated with the Las Vegas North Project or any Alternative Project at any one time outstanding shall not exceed $50,000,000; and
(ii) the aggregate amount of all other such Indebtedness at any one time outstanding shall not exceed $50,000,000; and
(g) Indebtedness permitted under Completion Guaranties permitted by Section 7.02(f)(iv);
(h) Indebtedness owed to and Contingent Obligations in favor of Borrower or any Restricted Subsidiary;
(i) Indebtedness consisting of Contingent Obligations of Restricted Subsidiaries doing business in the State of New Jersey with respect to Capital Leases and purchase money Indebtedness bonds issued by the Casino Reinvestment Development Authority in an aggregate amount not to exceed $1,000,000 5,000,000;
(j) Indebtedness in an aggregate outstanding principal amount not to exceed $20,000,000 at any time which was incurred by a Person prior to the acquisition of that Person by Borrower or its Restricted Subsidiaries and was not incurred in contemplation of such acquisition; and
(k) other unsecured Indebtedness of Borrower and its Restricted Subsidiaries in an aggregate principal amount not to exceed $25,000,000 at any time outstanding; provided further that the Borrower shall not permit (whether or not otherwise permitted under this Section) any such Restricted Subsidiary to create, incur, assume or suffer to exist any portion of the Indebtedness and Contingent Obligations permitted in this Section, except for (xi) Indebtedness and Contingent Obligations in existence on the Closing Date, (ii) its Guaranty, (iii) Indebtedness owed to, and Contingent Obligations in favor of, Borrower or another Restricted Subsidiary, (iv) Indebtedness permitted under Section 7.03(f) in the case respect of additional Capital Leases Property of or purchase money Indebtednessused by that Restricted Subsidiary, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be(v) Indebtedness under Section 7.03(i) and Section 7.03(j), and (yvi) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested an aggregate principal amount not in good faith by appropriate proceedings and reserved excess of $5,000,000 for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentRestricted Subsidiary.
Appears in 1 contract
Sources: Credit Agreement (Aztar Corp)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
Documents (b) Surviving Indebtedness listed on Schedule 7.03(b)including, but not any extensionswithout limitation, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in connection with the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness Ventas Purchase Option ABL Loans in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such principal amount of Converting ABL Loans immediately prior to the Ventas Purchase Option Assignment);
(b) Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect Borrowers and their Restricted Subsidiaries set forth in Schedule 8.03 (and renewals, refinancings and extensions thereof (not exceeding the principal amount of the Indebtedness so renewed, refinanced or extended) on terms and conditions not materially less favorable (taken as a whole) to such assetthe applicable debtor(s) or to the Lenders);
(c) intercompany Indebtedness permitted under Section 8.02;
(d) obligations (contingent or otherwise) of the SBA PPP Loan;
(e) Indebtedness in respect of Borrowers or any Restricted Subsidiary existing or arising under any Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred Contract entered into in the ordinary course of business and not for speculative purposes;
(fe) purchase money Indebtedness incurred by any Loan Party (including obligations in respect of letters Capital Leases or Synthetic Leases) hereafter incurred by the Borrowers or any of credittheir Restricted Subsidiaries to finance the purchase of fixed assets, bank guaranteesand renewals, bankers’ acceptancesrefinancings and extensions thereof; provided that (i) the total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of the greater of (A) $120,000,000 and (B) 40% of Consolidated EBITDA 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 (other than for interest, warehouse receipts or similar instruments issued or created in the ordinary course of businesspremiums, including penalties and fees);
(f) Securitization Transactions (solely 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 Collateral of a type that would not constitute ABL Priority Collateral) in an aggregate principal amount at any one time outstanding not to reimbursement-type obligations regarding workers compensation claimsexceed the greater of (A) $75,000,000 and (B) 25% of Consolidated EBITDA;
(g) intercompany Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not under the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPLHP Cash Management Transfer System;
(h) Indebtedness consisting under performance bonds, surety bonds, letter of guarantees resulting from endorsement of negotiable instruments credit obligations to provide security for collection by any Loan Party workers’ compensation claims and bank overdrafts, in each case in the ordinary course of business;
(i) Indebtedness in the form of trade payables and accrued expenses incurred in the ordinary course of business;
(j) other Indebtedness in an aggregate principal amount not to exceed the greater of (iA) $100,000,000 and (B) 30% of Consolidated EBITDA at any Loan Party owing to one time outstanding;
(k) Indebtedness of the Borrowers or any other Loan Party and in the form of loans from the Captive Insurance Subsidiary in an aggregate principal amount at any time outstanding not to exceed twenty percent (ii20%) of the total assets of the Captive Insurance Subsidiary, as shown on the most recent balance sheet of the Captive Insurance Subsidiary in accordance with GAAP;
(l) Earn-Out Obligations not to exceed $10,000,000 in the aggregate at any one time outstanding;
(m) Guarantees by any Borrower or its Restricted Subsidiaries of Indebtedness owed permitted to be incurred by a such Borrower or Restricted Subsidiary in accordance with the provisions of this Agreement; provided that in the event such Indebtedness that is not a Guarantor Subsidiary to being Guaranteed is Subordinated Indebtedness, then any related Guarantee of any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral AgentLoans;
(jn) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance of the Loan Parties incurred in the ordinary course of business under financing arrangements related to the prepayment of premiums and deductibles under the Loan Parties’ insurance policies;
(ko) Indebtedness in respect of Non-Guarantor Restricted Subsidiaries, together with any Indebtedness incurred by Non-Guarantor Restricted Subsidiaries pursuant to Section 8.03(u) and to Section 8.03(v) below not to exceed the convertible notes; provided that, all such Indebtedness in respect greater of the convertible notes shall be unsecured (A) $100,000,000 and subordinated in right (B) 30% of payment to the payment in full (other than Consolidated EBITDA at any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligationsone time outstanding;
(lp) other unsecured Indebtedness(a) Indebtedness incurred pursuant to the Term Loan Facility by the Borrowers or any Loan Party in an aggregate principal amount of commitments, loans or letters of credit thereunder (without any duplication thereof) not to exceed the sum of (x) $825.0 million and (y) any incremental loan facilities permitted thereunder as in effect on the Closing Date; provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable is subject to the Administrative Agent terms of the Intercreditor Agreement in its sole discretion. For purposes the capacity of determining compliance with this Section 7.03“Term Loan Obligations” and (b) after consummation of the Ventas Purchase Option, all Obligations outstanding Indebtedness assigned to the Ventas Assignees under the Term Loan Documents will be deemed Facility in an amount equal to have been incurred the Ventas Purchase Option Term Loan Amount (as defined in reliance only the Term Loan Credit Agreement as in effect on the exception date hereof) (the “Ventas Purchase Option Term Loans”) (provided that the guarantees in clause (a) respect of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder by Parent, Borrowers and expressly Loan Parties thereunder shall be subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.Non-Ventas Purchase Option ABL Loans);
Appears in 1 contract
Indebtedness. CreateFurniture Brands will not, and will not permit any of its Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(ai) Obligations of Indebtedness incurred pursuant to this Agreement and the Loan Parties under the Loan other Credit Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any so long as no Default or Event of Default has occurred and is continuing then exists or would result therefrom, Permitted Indebtedness shall be permitted on terms and conditions set forth in the definition of Permitted Indebtedness;
(ciii) Indebtedness with respect outstanding on the Effective Date shall be permitted to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness extent (x) the same is listed on Schedule VI or (y) the aggregate principal amount of such Indebtedness does not exceed $500,000, in the case of each case, together with any refinancings or renewals thereof, so long as, in each such case, no additional Capital Leases obligors or purchase money Indebtednessguarantors, shall be secured by the asset subject to such additional Capital Leases or acquired asset security, is provided in connection with the incurrence of respective such Indebtedness, renewal or refinancing and so long as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute principal amount is not less than 75% of the aggregate consideration paid with respect to such assetincreased as a result thereof;
(div) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business accrued expenses and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of current trade 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(iv) Indebtedness under Interest Rate Protection Agreements entered into with respect to other Indebtedness permitted under this Section 10.03 so long as the entering into of such Interest Rate Protection Agreements are bona fide hedging activities and are not for speculative purposes;
(vi) Indebtedness of the Borrowers and their Subsidiaries evidenced by Capitalized Lease Obligations to the extent permitted pursuant to Section 10.01(v), and Indebtedness secured by Liens permitted under Section 10.01(vi); provided that in no event shall the aggregate principal amount of Capitalized Lease Obligations and other Indebtedness permitted by this clause (vi) exceed $20,000,000;
(vii) Indebtedness under Currency Hedging Agreements so long as (i) any Loan Party owing such Currency Hedging Agreement is reasonably related to income (in currencies other than Dollars) derived from foreign operations of the Borrowers or any Subsidiary (or any Foreign Sales Corporation) or otherwise related to purchases (in currencies other Loan Party than Dollars) permitted hereunder from foreign suppliers and (ii) such Currency Hedging Agreements do not exceed a notional amount equal to $30,000,000 in the aggregate at any one time;
(viii) intercompany Indebtedness owed by among the Borrowers and their Subsidiaries;
(ix) Indebtedness of a Subsidiary existing at the time of acquisition thereof by Furniture Brands or a Subsidiary thereof (or Indebtedness assumed at the time of such an acquisition of an asset securing such Indebtedness), provided that is (a) such Indebtedness was not a Guarantor Subsidiary to incurred in connection with, or in contemplation of, such acquisition and (b) any Loan Party to the extent Lien securing such Indebtedness is permitted as an Investment pursuant to under Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent10.01(vii);
(jx) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty in respect of bid, performance, advance payment or contractual service obligations or performance surety bonds entered into in the ordinary course of business of the Loan Partiesconsistent with past practices;
(kxi) Indebtedness in respect Contingent Obligations (a) of the convertible notes; provided that, all such Indebtedness in respect Borrowers or any of their Subsidiaries as a guarantor of the convertible notes shall be unsecured lessee under any lease pursuant to which the Borrower (or a Subsidiary) is the lessee so long as such lease is otherwise permitted hereunder, (b) of Furniture Brands constituting guarantees by Furniture Brands of trade payables owing by its Subsidiaries in their ordinary course of business, (c) of Furniture Brands and/or Thomasville consisting of guarantees (with the maximum amount guaranteed at any time pursuant to this clause (c) not to exceed $7,500,000 in the aggregate) of actual or potential claims under Environmental Laws referred to in Section 10.01(xiii)(y) and subordinated in right (d) of payment to the payment in full (other than Borrowers or any payment Subsidiary as a result guarantor of the conversion of such convertible notes into Equity Interests of Parent) lessee under any lease pursuant to which a third party is the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Datelessee; and
(mxii) the 2021 Preferred Stock on terms reasonably acceptable Contingent Obligations of Furniture Brands pursuant to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentTax Sharing Agreements.
Appears in 1 contract
Sources: Credit Agreement (Furniture Brands International Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
Documents (b) Surviving Indebtedness listed on Schedule 7.03(b)including, but not any extensionswithout limitation, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in connection with the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness Ventas Purchase Option ABL Loans in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such principal amount of Converting ABL Loans immediately prior to the Ventas Purchase Option Assignment);
(b) Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect Borrowers and their Restricted Subsidiaries set forth in Schedule 8.03 (and renewals, refinancings and extensions thereof (not exceeding the principal amount of the Indebtedness so renewed, refinanced or extended) on terms and conditions not materially less favorable (taken as a whole) to such assetthe applicable debtor(s) or to the Lenders);
(c) intercompany Indebtedness permitted under Section 8.02;
(d) obligations (contingent or otherwise) of the SBA PPP Loan;
(e) Indebtedness in respect of Borrowers or any Restricted Subsidiary existing or arising under any Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred Contract entered into in the ordinary course of business and not for speculative purposes;
(fe) purchase money Indebtedness incurred by any Loan Party (including obligations in respect of letters Capital Leases or Synthetic Leases) hereafter incurred by the Borrowers or any of credittheir Restricted Subsidiaries to finance the purchase of fixed assets, bank guaranteesand renewals, bankers’ acceptancesrefinancings and extensions thereof; provided that (i) the total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of the greater of (A) $190,000,000 and (B) 40% of Consolidated EBITDA 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 (other than for interest, warehouse receipts or similar instruments issued or created in the ordinary course of businesspremiums, including penalties and fees);
(f) Securitization Transactions (solely 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 Collateral of a type that would not constitute ABL Priority Collateral) in an aggregate principal amount at any one time outstanding not to reimbursement-type obligations regarding workers compensation claimsexceed the greater of (A) $75,000,000 and (B) 25% of Consolidated EBITDA;
(g) intercompany Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not under the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPLHP Cash Management Transfer System;
(h) Indebtedness consisting under performance bonds, surety bonds, letter of guarantees resulting from endorsement of negotiable instruments credit obligations to provide security for collection by any Loan Party workers’ compensation claims and bank overdrafts, in each case in the ordinary course of business;
(i) Indebtedness in the form of trade payables and accrued expenses incurred in the ordinary course of business;
(j) other Indebtedness in an aggregate principal amount not to exceed the greater of (iA) $190,000,000 and (B) 40% of Consolidated EBITDA at any Loan Party owing to one time outstanding;
(k) Indebtedness of the Borrowers or any other Loan Party and in the form of loans from the Captive Insurance Subsidiary in an aggregate principal amount at any time outstanding not to exceed twenty percent (ii20%) of the total assets of the Captive Insurance Subsidiary, as shown on the most recent balance sheet of the Captive Insurance Subsidiary in accordance with GAAP;
(l) Earn-Out Obligations not to exceed $10,000,000 in the aggregate at any one time outstanding;
(m) Guarantees by any Borrower or its Restricted Subsidiaries of Indebtedness owed permitted to be incurred by a such Borrower or Restricted Subsidiary in accordance with the provisions of this Agreement; provided that in the event such Indebtedness that is not a Guarantor Subsidiary to being Guaranteed is Subordinated Indebtedness, then any related Guarantee of any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral AgentLoans;
(jn) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance of the Loan Parties incurred in the ordinary course of business under financing arrangements related to the prepayment of premiums and deductibles under the Loan Parties’ insurance policies;
(ko) Indebtedness in respect of Non-Guarantor Restricted Subsidiaries, together with any Indebtedness incurred by Non-Guarantor Restricted Subsidiaries pursuant to Section 8.03(u) and to Section 8.03(v) below not to exceed the convertible notes; provided that, all such Indebtedness in respect greater of the convertible notes shall be unsecured (A) $190,000,000 and subordinated in right (B) 40% of payment to the payment in full (other than Consolidated EBITDA at any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligationsone time outstanding;
(lp) other unsecured Indebtedness(a) Indebtedness incurred pursuant to the Term Loan Facility by the Borrowers or any Loan Party in an aggregate principal amount of commitments, loans or letters of credit thereunder (without any duplication thereof) not to exceed the sum of (x) $900,000,000 and (y) any incremental loan facilities permitted thereunder as in effect on the Effective Date; provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable is subject to the Administrative Agent terms of the Intercreditor Agreement in its sole discretion. For purposes the capacity of determining compliance with this Section 7.03“Term Loan Obligations” and (b) after consummation of the Ventas Purchase Option, all Obligations outstanding Indebtedness assigned to the Ventas Assignees under the Term Loan Documents will be deemed Facility in an amount equal to have been incurred the Ventas Purchase Option Term Loan Amount (as defined in reliance only the Term Loan Credit Agreement as in effect on the exception Original Closing Date) (the “Ventas Purchase Option Term Loans”) (provided that the guarantees in clause (a) respect of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder by ▇▇▇▇▇▇, Borrowers and expressly Loan Parties thereunder shall be subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.Non-Ventas Purchase Option ABL Loans);
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Ardent Health Partners, LLC)
Indebtedness. Create, incur, assume or suffer to exist any IndebtednessIndebtedness (provided that during any Investment Grade Period, except the followingthis Section 8.03 shall only restrict any Indebtedness created, without duplication (which constitutes “Permitted Indebtedness”):incurred, assumed or suffered to exist by any Subsidiary that is not an Immaterial Domestic Subsidiary or an Immaterial Foreign Subsidiary), except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness listed outstanding on the Effective Date and set forth in Schedule 7.03(b)8.03 hereto, but not and any extensionsrefinancings and extensions thereof; provided, renewals or replacements of such Indebtedness except that, (i) renewals and extensions expressly provided for in the agreements evidencing with respect to any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and or extensions of any such Indebtedness, (A) the amount of such Indebtedness is not increased at the time of such refinancing or extension except (1) by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing or extension and by an amount equal to any existing commitments unutilized thereunder and (2) if the amount of such increase is otherwise permitted under this Section 8.03 and (B) the material terms taken as a whole of such refinancing or extension either (1) reflect market terms at the time of issuance thereof, as reasonably determined by the Borrower in good faith, or (2) shall, taken as a whole, not be more favorable to the lenders providing such Indebtedness than the terms and conditions thereof are not less favorable applicable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, extended and (ii) the average life amount of any Indebtedness stated on Schedule 8.03 hereto that is subject to maturity thereof is greater than or equal a revolving loan facility shall be the maximum amount available to that of be borrowed thereunder on the Effective Date (excluding increase options under such facilities);
(c) intercompany Indebtedness being refinanced or extendedpermitted under Section 8.02; provided, such that, in the case of Indebtedness permitted under the immediately preceding clause owing by a Loan Party to a Subsidiary that is not a Loan Party, (i) or such Indebtedness shall by its terms be subordinated in right of payment to the prior payment in full of the Obligations in form and substance reasonably acceptable to the Administrative Agent and (ii) above such Indebtedness shall not be prepaid unless no Default exists immediately prior to or after giving effect to such prepayment;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract; provided, that, (i) such obligations are (or were) entered into by such Person in the ordinary course of business or in connection with the Loans made under this Agreement 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) purchase money Indebtedness (including obligations in respect of capital leases and Synthetic Lease Obligations) incurred to finance the purchase of fixed or capital assets, and renewals, refinancings and extensions thereof; provided, that, (i) at the time of incurrence the aggregate outstanding principal amount of all such Indebtedness shall not exceed the greater of (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, $100,000,000 at any one time outstanding and (B) exceed in a principal amount 2.5% of Consolidated Total Assets as of the Indebtedness being renewed, extended or refinanced, most recent four fiscal quarter period preceding the date of such transaction for which financial statements were required to be delivered pursuant to Section 7.01(a) or (Cb) be incurred(or, created or assumed if prior to the first such delivery, the financial statements for the fiscal quarter ended September 30, 2025) and (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed;
(f) [reserved];
(g) During any Non-Investment Grade Period, (i) Indebtedness of the Borrower and its Domestic Subsidiaries; provided, that, (A) at the time of incurrence of such Indebtedness, no Default or Event of Default has occurred and is continuing continuing, (B) after giving effect to the incurrence of such Indebtedness on a Pro Forma Basis, the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 (without giving effect to the Leverage Increase Period thereunder, unless such Indebtedness is incurred to finance a Qualified Acquisition which triggered such Leverage Increase Period), (C) such Indebtedness shall not include any financial maintenance covenants that are more restrictive in any respect on the Loan Parties than the financial maintenance covenants in Section 8.11 of this Agreement, (D) such Indebtedness is not subject to any amortization payments or would result therefromany mandatory prepayments or sinking fund payments (other than in connection with a change of control, asset sale or event of loss and customary acceleration rights after an event of default and, in the case of a term loan secured on a pari passu basis with the Obligations pursuant to an Intercreditor Agreement (a “Pari Passu Term Loan”), excess cash flow) in each case, prior to the date that is ninety one (91) days after (or, in the case of a Pari Passu Term Loan or other type of Indebtedness secured on a pari passu basis with the Obligations pursuant to an Intercreditor Agreement (collectively, “Pari Passu Indebtedness”), simultaneously with) the then-latest Maturity Date, and (E) such Indebtedness shall not mature at any time on or prior to the date that is ninety one (91) days after (or, in the case of a Pari Passu Indebtedness, simultaneously with) the then-latest Maturity Date; and (ii) without limiting the right of the Borrower or any of its Domestic Subsidiaries to incur Indebtedness in reliance on Section 8.03(g)(i), any refinancings and extensions of Indebtedness originally incurred pursuant to Section 8.03(g)(i); provided, that, at the time of such refinancing or extension, and after giving effect thereto, (A) no Default or Event of Default has occurred and is continuing, (B) the amount of such Indebtedness shall not be increased except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing or extension and by an amount equal to any existing commitments unutilized thereunder, (C) such Indebtedness shall not include any financial maintenance covenants that are more restrictive in any respect on the Loan Parties than the financial maintenance covenants in this Agreement, (D) such Indebtedness shall not be subject to any amortization payments or any mandatory prepayments or sinking fund payments (other than in connection with a change of control, asset sale or event of loss and customary acceleration rights after an event of default and, in the case of a Pari Passu Term Loan, excess cash flow) in each case, prior to the date that is ninety one (91) days after (or, in the case of a Pari Passu Indebtedness, simultaneously with) the then-latest Maturity Date, (E) such Indebtedness shall not mature at any time on or prior to the date that is ninety one (91) days after (or, in the case of a Pari Passu Indebtedness, simultaneously with) the then-latest Maturity Date, (F) such Indebtedness shall be secured on the same or junior basis to the Indebtedness that it refinances and (G) such Indebtedness shall have no shorter maturity than the Indebtedness it refinances; provided, further, that (x) the aggregate principal amount of Indebtedness under this clause (g) that may be incurred by any Subsidiary that is not a Loan Party shall not exceed (together with Indebtedness incurred under Section 8.03(n)) the greater of (I) $300,000,000 at any time outstanding and (II) 7.5% of Consolidated Total Assets as of the most recent four fiscal quarter period preceding the date of such transaction for which financial statements were required to be delivered pursuant to Section 7.01(a) or (b) (or, prior to the first such delivery, the financial statements for the fiscal quarter ended September 30, 2025) and (y) if secured, such Indebtedness shall be secured only by the Collateral and subject to an Intercreditor Agreement providing that such liens are pari passu or junior to the Liens securing the Obligations;
(ch) Indebtedness with respect to Capital Leases and purchase money During any Non-Investment Grade Period, other Indebtedness in an aggregate outstanding principal amount at the time of incurrence not to exceed the greater of (i) $1,000,000 in 235,000,000 and (ii) 30% of Consolidated EBITDA as of the aggregate most recent four fiscal quarter period preceding the date of such transaction for which financial statements were required to be delivered pursuant to Section 7.01(a) or (b) (or, prior to the first such delivery, the financial statements for the fiscal quarter ended September 30, 2025), at any time outstanding; provided ;
(i) Indebtedness which constitutes a Lien on investment property or general intangibles that any such represent Equity Interests of a Foreign Subsidiary and which is otherwise a Permitted Lien and Indebtedness that constitutes a Permitted Lien under the following: Sections 8.01(c), 8.01(d), 8.01(e), 8.01(h), 8.01(l), 8.01(m), 8.01(n), 8.01(p), 8.01(q) and 8.01(t);
(xj) Indebtedness consisting of indemnification obligations or adjustments in respect of the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset price (including earn-outs) in connection with the incurrence of such Indebtedness, as the case may be, and any Permitted Acquisition or any Disposition permitted under Section 8.05;
(yk) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid Guarantees with respect to such assetIndebtedness permitted under this Section 8.03;
(dl) the SBA PPP Loan;
(e) Indebtedness in respect unsecured reimbursement obligations of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business Loan Parties and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party their respective Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts bank guaranties, surety or performance bonds, and similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(im) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full secured reimbursement obligations of the Obligations pursuant Loan Parties and their respective Subsidiaries in respect of letters of credit, bankers’ acceptances, bank guaranties, surety or performance bonds in a stated amount not to the terms of the applicable promissory notes or an intercompany subordination agreement that in exceed $50,000,000 at any such case, is reasonably satisfactory to the Collateral Agenttime outstanding;
(jn) unsecured Indebtedness (other than for borrowed money) that which may be deemed to exist pursuant to any bona fide warranty guarantees, performance, statutory or contractual service similar obligations (including in connection with workers’ compensation) or performance obligations in respect of letters of credit, surety bonds, bank guarantees or similar instruments related thereto incurred in the ordinary course of business business, or pursuant to any appeal obligation, appeal bond or letter of the Loan Partiescredit in respect of judgments that do not constitute an Event of Default;
(ko) Indebtedness in respect connection with cash management services, including treasury, depository, overdraft, credit or debit card, purchasing cards, electronic funds transfer, cash pooling arrangements, netting services, and other cash management arrangements of Borrower or any Subsidiary, in each case in the convertible notes; provided that, all such Indebtedness in respect ordinary course of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligationsbusiness;
(lp) During any Non-Investment Grade Period, other unsecured IndebtednessIndebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed (together with Indebtedness incurred by non-Loan Parties under Section 8.03(g)) the greater of (i) $300,000,000 at any one time outstanding and (ii) 7.5% of Consolidated Total Assets as of the most recent four fiscal quarter period preceding the date of such transaction for which financial statements were required to be delivered pursuant to Section 7.01(a) or (b) (or, provided that prior to the first such Indebtedness matures not less than one hundred eighty (180) days following delivery, the Last Out Maturity Datefinancial statements for the fiscal quarter ended September 30, 2025); and
(mq) During any Investment Grade Period, other Indebtedness in an aggregate outstanding principal amount, plus (without duplication) the 2021 Preferred Stock on terms reasonably acceptable aggregate outstanding principal amount of Indebtedness secured by ▇▇▇▇▇ permitted pursuant to Section 8.01(ii), in the Administrative Agent in its sole discretionaggregate, not to exceed 15% of Consolidated Net Tangible Assets as of the last day of the then most recently ended fiscal quarter. For purposes of determining compliance with this Section 7.038.03, all Obligations outstanding under in the Loan Documents will be deemed to have been incurred event that any proposed Indebtedness meets the criteria of more than one of the categories of Indebtedness permitted in reliance only on the exception in clause clauses (a) through (n) above, the Borrower shall be permitted to divide or classify such item on the date of its incurrence, and from time to time may reclassify, in any manner that complies with this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless 8.03 at such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agenttime.
Appears in 1 contract
Sources: Credit Agreement (Hubspot Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness under this Agreement and the Loan Parties under the other Loan Documents;
; (b) Surviving Indebtedness (including, without limitation, credit lines) outstanding on the date hereof and listed on Schedule 7.03(b)7.03 and any refinancings, but not any extensionsrefundings, renewals or replacements extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except (i) renewals by an amount equal to a reasonable premium or other reasonable amount paid, and extensions expressly provided for fees and expenses reasonably incurred, in the agreements evidencing connection with such refinancing and by an amount equal to any such Indebtedness as the same are existing commitments unutilized thereunder and, in effect on the date of this Agreement and (ii) refinancings and extensions respect of any such Indebtedness if that is material, the direct and contingent obligors thereof shall not be changed, in each case, as a result of or in connection with such refinancing, refunding, renewal or extension; provided still further that the terms relating to principal amount, amortization, maturity, collateral (if any) and conditions thereof subordination (if any), and other material terms taken as a whole, of any such extending, refunding or refinancing Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are not no less favorable in any material respect to the obligor thereon Loan Parties or to the Lenders than the Indebtedness being refinanced terms of any agreement or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to instrument governing the Indebtedness being extended, renewed refunded or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
; (c) Indebtedness with respect (in addition to Capital Leases and purchase money Indebtedness the allowances in the other subsections of this Section 7.03) in an aggregate principal amount at any time outstanding not to exceed $1,000,000 in the aggregate at any time outstanding10% of Tangible Assets; provided that any such the Company and its Subsidiaries shall not be permitted to incur additional Indebtedness under this subsection (xc) in during the case existence of additional Capital Leases an Event of Default or purchase money Indebtedness, shall be secured by the asset subject if an Event of Default would occur after giving effect to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
; (d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement Guarantees of negotiable instruments for collection by any Loan Party in the ordinary course of business;
Company with respect to (i) Indebtedness of any Subsidiary to the extent that such Subsidiary's Indebtedness is permitted to be incurred pursuant to a subsection (iother than this subsection (d)) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary of any Person that is not a Guarantor Subsidiary, provided that the aggregate principal amount of such Indebtedness shall not at any time exceed $10,000,000 (without giving effect to any write-offs or write-downs of such Indebtedness); (e) intercompany loans (other than intercompany loans made to or by Grupo Eurocir in an amount exceeding $1,000,000) (i) involving only the Company and a Qualified Subsidiary, (ii) between Qualified Subsidiaries, (iii) between Non-Qualified Subsidiaries, (iv) from a Non-Qualified Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, thatCompany or a Qualified Subsidiary, in each case case, so long as the payee with respect to such intercompany loans is Solvent, both before and after giving effect to such intercompany loan and (Av) intercompany loans from the Company or any Qualified Subsidiary to a Non-Qualified Subsidiary in an aggregate amount for all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject under this clause (v) not to a first priority Lien pursuant to the Collateral Documents and exceed $20,000,000 at any time; (Bf) all such Indebtedness shall be unsecured and subordinated in right consisting of payment to the payment in full Permitted Swap Obligations; (g) Indebtedness of the Obligations Grupo Eurocir or Indebtedness incurred pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
its existing joint venture arrangements; and (jh) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance Indebtedness of a type described in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause subsections (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly through (g) above) subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentIndebtedness under this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Macdermid Inc)
Indebtedness. CreateIt will not, and will not permit any Subsidiary to, directly or indirectly, create, incur, assume assume, or suffer otherwise become or remain directly or indirectly liable with respect to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations the Operating Partnership may remain liable with respect to the Indebtedness evidenced by the Mortgage Notes and become and remain liable with respect to Funded Debt incurred in connection with any extension, renewal or refunding of Indebtedness evidenced by the Loan Parties under Mortgage Notes, provided that (i) the Loan Documentsprincipal amount of such Funded Debt shall not exceed the principal amount of such Indebtedness evidenced by the Mortgage Notes being extended, renewed, or refunded, and (ii) such Funded Debt complies with the requirements set forth in clauses (i) and (ii) of Section 8.01(f);
(b) Surviving Indebtedness listed on Schedule 7.03(b)the Operating Partnership may become and remain liable with respect to Funded Debt, but not including Borrowings under this Agreement, or to renew, refund or refinance any extensionssuch Funded Debt, renewals or replacements of such Indebtedness except provided that (i) renewals the aggregate principal amount of Funded Debt incurred under this Section 8.01(b) and extensions expressly outstanding at any time shall not exceed the sum of (A) $75,000,000 plus (B) an amount equal to the net cash proceeds received by it from the general partner of the Operating Partnership or from the MLP as a capital contribution or as consideration for the issuance by it of additional partnership interests, and (ii) if such Funded Debt is to be secured under the Security Documents as provided for in Section 8.02(i), the agreements evidencing any agreement or instrument pursuant to which such Indebtedness Funded Debt is incurred (if not this Agreement as the same are in effect on the date of this Agreement and (iiClosing Date) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness contains no financial or business covenants that are more restrictive on it or its Subsidiaries than, or that are in addition to, those contained in this Article VIII and (B) specifies no events of an obligor that was not an obligor default (other than with respect to the Indebtedness being extended, renewed payment of principal and interest on such Funded Debt or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event accuracy of Default has occurred representations and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset warranties made in connection with such agreement or instrument) which are capable of occurring prior to the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% occurrence of the aggregate consideration paid with respect to such assetEvents of Default specified in Article IX;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Revolving Credit Agreement (Lakehead Pipe Line Partners L P)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness under this Agreement and the Loan Parties under the other Loan Documents;
(b) Surviving Indebtedness (including, without limitation, credit lines) outstanding on the date hereof and listed on Schedule 7.03(b)8.03(b) and any refinancings, but not any extensionsrefundings, renewals or replacements extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except (i) renewals by an amount equal to a reasonable premium or other reasonable amount paid, and extensions expressly provided for fees and expenses reasonably incurred, in the agreements evidencing connection with such refinancing and by an amount equal to any such Indebtedness as the same are existing commitments unutilized thereunder and, in effect on the date of this Agreement and (ii) refinancings and extensions respect of any such Indebtedness if that is material, the direct and contingent obligors thereof shall not be changed, in each case, as a result of or in connection with such refinancing, refunding, renewal or extension; provided still further that the terms relating to principal amount, amortization, maturity, collateral (if any) and conditions thereof subordination (if any), and other material terms taken as a whole, of any such extending, refunding or refinancing Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are not no less favorable in any material respect to the obligor thereon Loan Parties or to the Lenders than the Indebtedness being refinanced terms of any agreement or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to instrument governing the Indebtedness being extended, renewed refunded or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect (in addition to Capital Leases and purchase money Indebtedness the allowances in the other subsections of this Section 8.03) in an aggregate principal amount at any time outstanding not to exceed $1,000,000 in the aggregate at any time outstanding10% of Tangible Assets; provided that any such the Company and its Subsidiaries shall not be permitted to incur additional Indebtedness under this subsection (xc) in during the case existence of additional Capital Leases an Event of Default or purchase money Indebtedness, shall be secured by the asset subject if an Event of Default would occur after giving effect to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) Indebtedness consisting of Guarantees of the SBA PPP LoanCompany with respect to (i) Indebtedness of any Subsidiary to the extent that such Subsidiary’s Indebtedness is permitted to be incurred pursuant to a subsection (other than this subsection (d)) and (ii) Indebtedness of any Person that is not a Subsidiary, provided that the aggregate principal amount of such Indebtedness shall not at any time exceed $20,000,000 (without giving effect to any write-offs or write-downs of such Indebtedness);
(e) intercompany loans (i) involving only the Company and a Qualified Subsidiary, (ii) between Qualified Subsidiaries, (iii) between Non-Qualified Subsidiaries, (iv) from a Non-Qualified Subsidiary to the Company or a Qualified Subsidiary, in each case, so long as the payee with respect to such intercompany loans is Solvent, both before and after giving effect to such intercompany loan and (v) intercompany loans from the Company or any Qualified Subsidiary to a Non-Qualified Subsidiary in an aggregate amount for all such Indebtedness in respect of Swap Contracts designed under this clause (v) not to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposesexceed $20,000,000 at any time;
(f) Indebtedness incurred by any Loan Party in respect consisting of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;Permitted Swap Obligations; and
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance Indebtedness of a type described in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause subsections (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly through (f) above) subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentIndebtedness under this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Macdermid Inc)
Indebtedness. CreateThe Loan Parties will not permit any Consolidated Party to contract, create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness arising under this Agreement and the Loan Parties under the other Loan Documents;
(b) Surviving Indebtedness listed on of the Borrowers and their Subsidiaries set forth in Schedule 7.03(b)7.01 (and renewals, but not any extensions, renewals or replacements refinancings and extensions thereof; provided that (x) the amount of such Indebtedness except is not increased at the time of such renewal, refinancing or extension, (iy) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof of such renewal, refinancing or extension are materially not less favorable to such Borrowers or Subsidiary, taken as a whole and (z) the obligor thereon maturity date of such renewal, refinancing or to extension shall be a date after the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromMaturity Date);
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness (including obligations in an amount respect of Capital Leases or Synthetic Lease Obligations) hereafter incurred by the Borrowers or any of their Subsidiaries to finance the purchase of fixed assets provided that (i) the total of all such Indebtedness for all such Persons taken together along with all Indebtedness incurred pursuant to Section 7.01(i) shall not to exceed $1,000,000 in the aggregate 75,000,000 at any one time outstanding; provided that any (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (xiii) in the case of additional Capital Leases or purchase money Indebtedness, no such Indebtedness shall be secured by refinanced for a principal amount in excess of the asset subject to such additional Capital Leases or acquired asset in connection with principal balance outstanding thereon at the incurrence time of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetrefinancing;
(d) obligations (contingent or otherwise) of the SBA PPP Loan;
Borrowers or any Subsidiary existing or arising under any Swap Contracts, provided that such obligations are (eor were) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with purchases, sales, 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 speculative purposespurposes of speculation or taking a “market view;
(e) intercompany Indebtedness and Guarantees permitted under Section 7.06;
(f) in addition to the Indebtedness otherwise permitted by this Section 7.01, other Indebtedness incurred by the Borrowers or any Loan Party in respect of letters their Subsidiaries after the Closing Date, provided that (i) such Indebtedness shall be unsecured and (ii) the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to the incurrence of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in such Indebtedness and to the ordinary course concurrent retirement of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or any other Indebtedness of any Consolidated Party, the Loan Parties would be in compliance with respect to reimbursement-type obligations regarding workers compensation claimsthe financial covenants set forth in Section 6.10(a)-(c);
(g) Indebtedness incurred by any Loan Party in respect of accounts payable pursuant 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing the 6.95% Debentures in an aggregate outstanding principal amount not to any other Loan Party exceed $22,500,000 and (ii) Indebtedness owed by a Subsidiary the Medium-Term Notes in an aggregate outstanding principal amount not to exceed $48,800,000, including, in the case of clauses (i) and (ii), any renewals, refinancings and extensions thereof; provided that is not a Guarantor Subsidiary to any Loan Party to (w) the extent amount of such Indebtedness is permitted as an Investment pursuant to Section 7.02; providednot increased at the time of such renewal, thatrefinancing or extension, in each case (Ax) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes such renewal, refinancing or an intercompany subordination agreement that in any extension are materially not less favorable to such caseBorrowers or Subsidiary, is reasonably satisfactory to the Collateral Agent;
taken as a whole, (jy) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect is unsecured, and (z) the maturity date of the convertible notes such renewal, refinancing or extension shall be unsecured and subordinated in right of payment to a date after the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(mh) unsecured Indebtedness owing by the Company pursuant to the 7½% Senior Notes issued on November 3, 2009 and due 2019 in an aggregate principal amount not to exceed $150,000,000 (and renewals, refinancings and extensions thereof; provided that (x) the 2021 Preferred Stock on amount of such Indebtedness is not increased at the time of such renewal, refinancing or extension, (y) the terms reasonably acceptable of such renewal, refinancing or extension are materially not less favorable to such Borrowers or Subsidiary, taken as a whole and (z) the maturity date of such renewal, refinancing or extension shall be a date after the Maturity Date); and
(i) in addition to the Indebtedness otherwise permitted by this Section 7.01, other secured Indebtedness incurred by the Borrowers or any of their Subsidiaries after the Closing Date, provided that (i) the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to the incurrence of such Indebtedness and to the concurrent retirement of any other Indebtedness of any Consolidated Party, the Loan Parties would be in its sole discretion. For purposes of determining compliance with this the financial covenants set forth in Section 7.03, 6.10(a)-(c) and (ii) the aggregate principal amount of such secured Indebtedness taken together along with all Obligations outstanding under the Loan Documents will be deemed Indebtedness incurred pursuant to have been incurred in reliance only on the exception in clause (aSection 7.01(c) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentnot exceed $75,000,000.
Appears in 1 contract
Sources: Term Loan Agreement (Potlatch Corp)
Indebtedness. Create, issue, incur, assume assume, become liable in respect of or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations Indebtedness of the any Loan Parties under the Party pursuant to any Loan DocumentsDocument;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for of Holdings to the Borrower in the agreements evidencing any such Indebtedness as the same are connection with Investments permitted in effect on the date of this Agreement and Section 7.7(f)(i), (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable Loan Party (other than Holdings) to the obligor thereon Borrower or any Subsidiary, and (iii) of any Subsidiary that is not a Loan Party to (x) any Loan Party (other than Holdings) to the Lenders than the Indebtedness being refinanced or extendedextent such Investment is permitted under Section 7.7(f), and the average life to maturity thereof (y) any Person that is greater than or equal to not a Loan Party, provided that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted incurred under the immediately preceding this clause (iy) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if $10,000,000 at any Default or Event of Default has occurred and is continuing or would result therefromone time outstanding;
(c) Guarantee Obligations incurred in respect of any Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetpermitted hereunder;
(d) Indebtedness outstanding as of the SBA PPP LoanOriginal Closing Date and listed on Schedule 7.2(d) and any refinancings, refundings, renewals or extensions thereof (without increasing, or shortening the maturity of, the principal amount thereof);
(e) Indebtedness incurred to finance the acquisition, construction, development, maintenance, upgrade or improvement of any assets (including, without limitation, Capital Lease Obligations and as incurred pursuant to Sale-Leaseback Transactions), which may be secured by Liens permitted by Section 7.3(g), in respect an aggregate principal amount, when aggregated with the amount of Swap Contracts designed Indebtedness outstanding under clause (ii) of Section 7.2(i) at such time, not to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposesexceed $25,000,000 at any one time outstanding;
(f) [(i) ](i) Indebtedness incurred by any Loan Party of the Borrower in respect of letters the Senior Subordinated Notes in an aggregate principal amount not to exceed $200,000,000 and (ii) Guarantee Obligations of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including any Subsidiary Guarantor in respect of workers compensation claimssuch Indebtedness, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with provided that such Guarantee Obligations are subordinated to the same extent as the obligations of the Borrower in respect to reimbursement-type obligations regarding workers compensation claimsof the Senior Subordinated Notes;
(g) additional subordinated Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing Borrower that (i) has a final maturity date at least 180 days after the later of moneythe Tranche B Term Maturity Date and the latest Incremental Term Maturity Date and no scheduled payments of principal thereon prior to the later of the Tranche B Term Maturity Date and the latest Incremental Term Maturity Date and (ii) incurred is subject to terms (other than as to interest rate and equity components, which shall be consistent with transactions of a similar nature conducted at such time) substantially similar to (or less restrictive taken as a whole to the Loan Parties than) the Senior Subordinated Notes so long as after giving effect to the incurrence thereof, the Borrower would be in compliance with the ordinary course covenants set forth in Section 7.1 after giving Pro Forma Effect to the incurrence of business in accordance with customary terms such Indebtedness and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPuse of the proceeds thereof;
(h) Indebtedness consisting arising from agreements of guarantees resulting from endorsement the Borrower or any Subsidiary providing for indemnification, adjustment of negotiable instruments for collection by purchase price or similar obligations incurred or assumed in connection with Permitted Acquisitions or any Loan Party Disposition permitted under Section 7.5;
(i) Indebtedness of any Person that becomes a Subsidiary Guarantor in connection with a Permitted Acquisition after the Original Closing Date and any refinancings, refundings, renewals or extensions thereof (without increasing the principal amount thereof) in an aggregate principal amount not to exceed $20,000,000 at any one time outstanding; provided that such Indebtedness (i) exists at the time such Person becomes a Subsidiary Guarantor and is not created in contemplation of or in connection with such Person becoming a Subsidiary Guarantor and (ii) may exceed $20,000,000 to the extent that the aggregate principal amount of such additional Indebtedness, when aggregated with the amount of Indebtedness outstanding under Section 7.2(e) at such time, does not exceed $25,000,000 at any one time outstanding;
(j) Indebtedness with respect to surety, appeal and performance bonds and similar arrangements in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(jk) unsecured Indebtedness (other than for borrowed moneyincluding, without limitation, overdraft facilities) that may not otherwise permitted hereunder in an aggregate principal amount not exceeding $5,000,000 at any time outstanding; and
(l) [ (l) Indebtedness of Holdings in respect of Specified Holdings Securities, so long as (i) on the date of incurrence thereof, no Default or Event of Default shall have occurred and be deemed to exist pursuant to any bona fide warranty continuing or contractual service obligations or performance would result therefrom, (ii) after giving Pro Forma Effect in the ordinary course calculation of business Consolidated Holdings Total Debt to the incurrence thereof, the use of the Loan Parties;
proceeds thereof to repay Indebtedness and any Indebtedness repaid since the end of the last fiscal quarter ending prior to the incurrence thereof for which financial statements have been delivered to the Lenders, the Holdings Consolidated Leverage Ratio (k) as calculated as of the end of the last fiscal quarter ending prior to the incurrence of Indebtedness in respect of such Specified Holdings Securities for which financial statements have been delivered to the convertible notes; provided thatLenders) does not exceed 5.75 to 1.0, all and ([iii]ii) such Indebtedness in respect has a final maturity date at least 91 days after, and does not provide for any scheduled payments of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full principal thereon or (other than pursuant to customary requirements to make prepayment or redemption offers upon asset sales or change of control events) any payment as a result mandatory redemption or redemption at the option of the conversion holder thereof (in whole or in part) prior to, the later of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following Tranche B Term Maturity Date and the Last Out latest Incremental Term Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03clarification, all Obligations outstanding under the Loan Documents will be deemed to have been incurred conditions in reliance only on clauses (i)-(iii) in the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party immediately preceding sentence shall have outstanding, create or incur any Indebtedness owing not apply to any other Loan Party accretion in the principal amount or liquidation value of any Specified Holdings Securities or any Affiliate pay-in-kind notes or employee Capital Stock issued for the payment of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentinterest or dividends thereon.
Appears in 1 contract
Sources: Credit Agreement (Mq Associates Inc)
Indebtedness. Create, incur, assume or suffer to exist any IndebtednessIndebtedness (including any Earn-Out Obligations), except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties under the Loan DocumentsObligations;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals the Loan Parties and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect their Subsidiaries existing on the date of this Agreement Closing Date and (ii) set forth in Schedule 8.1 and refinancings and extensions of any such Indebtedness if the representations, warranties, covenants, events of default and other material terms and conditions thereof are not materially less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (Ai) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, refinanced or (Bii) exceed in a principal amount the Indebtedness being renewed, extended or refinanced;
(c) purchase money Indebtedness (including obligations in respect of Capital Leases but excluding Synthetic Leases) hereafter incurred by the Loan Parties or any of their Subsidiaries to finance the purchase of fixed assets; provided that (i) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed, (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 at any time outstanding shall not exceed $40,000,000;
(d) Indebtedness in respect of any Swap Agreement that is entered into in the ordinary course of business to hedge or mitigate risks to which any Loan Party or any of its Subsidiaries is exposed in the conduct of its business or the management of its liabilities (Cit being acknowledged by the Borrower that a Swap Agreement entered into for speculative purposes or of a speculative nature is not a Swap Agreement entered into in the ordinary course of business to hedge or mitigate risks);
(e) intercompany Indebtedness permitted under Section 8.3; provided that any Indebtedness of a Loan Party owing to any Subsidiary that is not a Loan Party shall be incurredsubject to a Subordination Agreement acceptable to the Administrative Agent in its sole discretion;
(f) Indebtedness assumed in connection with (or attaching to assets of a Person that becomes a Subsidiary in connection with) a Permitted Acquisition; provided that (i) the aggregate amount of such Indebtedness shall not exceed $7,500,000 in the aggregate at any time outstanding and (ii) such Indebtedness exists at the time such Person becomes a Subsidiary or such Permitted Acquisition occurs and is not created in contemplation of or in connection therewith;
(g) Guarantees with respect to Indebtedness permitted under this Section 8.1;
(h) current Indebtedness maturing in less than one (1) year and incurred in the ordinary course of business for raw materials, created supplies, equipment, services Taxes or assumed if labor;
(i) so long as in the aggregate such Indebtedness does not exceed $4,000,000, Indebtedness consisting of the financing of insurance premiums in the ordinary course of business or consistent with past practice;
(j) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations (including, in each case, letters of credit issued to provide such bonds, guaranties and similar obligations), in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(k) Indebtedness arising from overdraft facilities and/or 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;
(l) Indebtedness due to sellers in connection with Permitted Acquisitions, including any Earn-Out Obligations incurred in connection thereto, so long as for all other Permitted Acquisitions, the aggregate principal amount of such Indebtedness shall not exceed $20,000,000 at any time outstanding and shall, at the request of the Administrative Agent, be subject to a Subordination Agreement acceptable to the Administrative Agent in its sole discretion;
(m) Incremental Equivalent Debt;
(n) other unsecured Indebtedness in an aggregate principal amount not exceeding $20,000,000 at any time outstanding; and
(o) other senior unsecured Indebtedness (“Senior Unsecured Indebtedness”) of the Borrower in an aggregate principal amount not to exceed $350,000,000; provided that:
(i) no Default or Event of Default has occurred and is continuing immediately prior to or would result therefrom;
(c) Indebtedness with respect after giving effect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness;
(ii) the Borrower shall have delivered to the Administrative Agent a certificate signed by an Authorized Officer of the Borrower demonstrating that, as upon giving effect to the case may beincurrence of such Indebtedness and the application of proceeds thereof on a Pro Forma Basis, (A) the Borrower shall be in compliance with the financial covenants set forth in Section 8.8, and (B) the Consolidated Total Leverage Ratio shall not exceed the ratio that is 0.25:1.00 less than the otherwise permitted maximum Consolidated Total Leverage Ratio under Section 8.8(a) for the applicable Fiscal Quarter;
(iii) the maturity date of such Indebtedness shall be at least 181 days after the later of the Revolving Commitment Termination Date and the Term Loan A Maturity Date at the time of issuance of such Senior Unsecured Indebtedness;
(iv) such Indebtedness shall not be subject to any mandatory redemption, mandatory repurchase or other mandatory prepayments of principal other than in connection with (x) a change of control (or other comparable term) and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability sales or other employee benefits or property, dispositions of property (including casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(gevents) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party each case to the extent such Indebtedness is permitted as an Investment pursuant proceeds are not required to Section 7.02; providedprepay the obligations arising under this Agreement or any restatement, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes renewal or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Daterefinancing thereof; and
(mv) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will such Indebtedness shall not be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing subject to any other Loan Party covenants or any Affiliate or employee events of any Loan Party unless such Indebtedness is expressly permitted hereunder default that are materially more restrictive than covenants and expressly subordinated events of default that are usual and customary for senior unsecured high yield notes giving due regard to prevailing conditions in the Loans syndicated loan and other Obligations in a manner financial markets and on terms satisfactory to operational requirements of the Administrative AgentBorrower and its Subsidiaries.
Appears in 1 contract
Sources: Credit Agreement (AdaptHealth Corp.)
Indebtedness. CreateThe Loan Parties will not permit any Consolidated Party to contract, create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness arising under this Agreement and the Loan Parties under the other Loan Documents;
(b) Surviving Indebtedness listed on of the Borrowers and their Subsidiaries set forth in Schedule 7.03(b)7.01 (and renewals, but not any extensions, renewals or replacements refinancings and extensions thereof; provided that (x) the amount of such Indebtedness except is not increased at the time of such renewal, refinancing or extension, (iy) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof of such renewal, refinancing or extension are materially not less favorable to such Borrowers or Subsidiary, taken as a whole and (z) the obligor thereon maturity date of such renewal, refinancing or to extension shall be a date after the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromMaturity Date);
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness (including obligations in an amount respect of Capital Leases or Synthetic Lease Obligations) hereafter incurred by the Borrowers or any of their Subsidiaries to finance the purchase of fixed assets provided that (i) the total of all such Indebtedness for all such Persons taken together along with all Indebtedness incurred pursuant to Section 7.01(j) shall not to exceed $1,000,000 in the aggregate 150,000,000 at any one time outstanding; provided that any (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (xiii) in the case of additional Capital Leases or purchase money Indebtedness, no such Indebtedness shall be secured by refinanced for a principal amount in excess of the asset subject to such additional Capital Leases or acquired asset in connection with principal balance outstanding thereon at the incurrence time of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetrefinancing;
(d) obligations (contingent or otherwise) of the SBA PPP Loan;
Borrowers or any Subsidiary existing or arising under any Swap Contracts, provided that such obligations are (eor were) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with purchases, sales, 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 speculative purposespurposes of speculation or taking a “market view”;
(e) intercompany Indebtedness and Guarantees permitted under Section 7.06;
(f) in addition to the Indebtedness otherwise permitted by this Section 7.01, other Indebtedness incurred by the Borrowers or any Loan Party in respect of letters their Subsidiaries after the Restatement Date, provided that (i) such Indebtedness shall be unsecured and (ii) the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to the incurrence of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in such Indebtedness and to the ordinary course concurrent retirement of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or any other Indebtedness of any Consolidated Party, the Loan Parties would be in compliance with respect to reimbursement-type obligations regarding workers compensation claimsthe financial covenants set forth in Section 6.10(a) and (b);
(g) Indebtedness incurred by any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP[reserved];
(h) To the extent constituting Indebtedness, Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of businessunder a Tax Incentive Transaction;
(i) Indebtedness pursuant to the Revolving Credit Agreement in an aggregate outstanding principal amount not to exceed $300,000,000 (or, to the extent the aggregate commitments thereunder are increased pursuant to Section 2.14 of the Revolving Credit Agreement, such increased amount, not to exceed a maximum of $800,000,000), including and renewals, refinancings and extensions thereof; provided that (x) the amount of such Indebtedness is not increased at the time of such renewal, refinancing or extension; (y) the terms of such renewal, refinancing or extension are materially not less favorable to such Borrowers or Subsidiary, taken as a whole and (z) no additional collateral is pledged by the Loan Parties to secure such Indebtedness; and
(j) in addition to the Indebtedness otherwise permitted by this Section 7.01, other secured Indebtedness incurred by the Borrowers or any of their Subsidiaries after the Restatement Date, provided that (i) any Loan Party owing the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to the incurrence of such Indebtedness and to the concurrent retirement of any other Indebtedness of any Consolidated Party, the Loan Party Parties would be in compliance with the financial covenants set forth in Section 6.10(a) and (b) and (ii) the aggregate principal amount of all secured Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such taken together along with all Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A7.01(c) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentexceed $150,000,000.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations Indebtedness of a Subsidiary of the Borrower or the Borrower owed to the Borrower or a wholly-owned Subsidiary of the Borrower, as the case may be, which Indebtedness shall (i) in the case of Indebtedness owed to a Loan Parties Party, constitute “Collateral” under the applicable Security Agreement, (ii) be on terms (including subordination terms) acceptable to the Administrative Agent and (iii) be otherwise permitted under the provisions of Section 7.03;
(b) Indebtedness under the Loan Documents;
(bc) Surviving Indebtedness outstanding on the date hereof and listed on Schedule 7.03(b)7.02 and any refinancings, but not any extensionsrefundings, renewals or replacements extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable by an amount equal to the obligor thereon a reasonable premium or to the Lenders than the Indebtedness being refinanced or extendedother reasonable amount paid, and the average life to maturity thereof is greater than or fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to that of any existing commitments unutilized thereunder and the Indebtedness being refinanced direct or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an any contingent obligor with respect to the Indebtedness being extendedthereto is not changed, renewed as a result of or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtednessrefinancing, as the case may berefunding, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetrenewal or extension;
(d) Guarantees of the SBA PPP LoanBorrower or any Subsidiary in respect of Indebtedness otherwise permitted hereunder of the Borrower or any wholly-owned Subsidiary;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest ratesCapitalized Leases, foreign exchange rates Synthetic Lease Obligations and purchase money obligations for fixed or commodities pricing risks incurred capital assets within the limitations set forth in Section 7.01(i); provided, however, that the ordinary course aggregate amount of business and all such Indebtedness at any one time outstanding shall not for speculative purposesexceed $30,000,000;
(f) Indebtedness in an aggregate principal amount not to exceed $25,000,000 at any one time outstanding of any Person that becomes a Subsidiary of the Borrower after the date hereof in accordance with the terms of Section 7.03(i), 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 any refinancings, refundings, renewals or extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability an amount equal to a reasonable premium or other employee benefits reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and the direct or property, casualty or liability insurance or self-insurance or other Indebtedness any contingent obligor with respect to reimbursement-type obligations regarding workers compensation claimsthereto is not changed, as a result of or in connection with such refinancing, refunding, renewal or extension;
(g) Indebtedness incurred by any Loan Party in respect certificates of accounts payable deposit, bonds and other surety obligations required 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 business be maintained in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially applicable Gaming Laws or in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party industry practice or otherwise in accordance with the ordinary course of business;
(ih) Indebtedness of unsecured Subordinated Indebtedness;
(i) any Loan Party owing senior unsecured Indebtedness of the Borrower in an aggregate principal amount not to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02exceed $150,000,000; provided, thathowever, in each case (A) all that any such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant (a) does not mature or require amortization prior to the Collateral Documents first anniversary of the Maturity Date and (Bb) all such Indebtedness shall be unsecured is governed by an agreement which contains representations, warranties, covenants, defaults and subordinated other provisions which are approved by the Administrative Agent in right of payment writing and in any event less restrictive upon and onerous to the payment in full Borrower and its Subsidiaries than the provisions of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral AgentLoan Documents;
(j) unsecured Indebtedness obligations (other than for borrowed moneycontingent or otherwise) of the Borrower or any Subsidiary existing or arising under any Swap Contract, provided that may be deemed to exist pursuant to any bona fide warranty (i) such obligations are (or contractual service obligations or performance 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 Loan Partiesvalue 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;
(k) Indebtedness in respect of direct or indirect Subsidiaries of the convertible notesBorrower that are not Loan Parties in an aggregate amount not to exceed $15,000,000 at any one time outstanding; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;and
(l) other unsecured Indebtedness, provided that such Indebtedness matures of the Borrower or any Subsidiary not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with otherwise permitted by this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed 7.02 in an aggregate principal amount not to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have exceed $15,000,000 at any time outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties obligations (contingent or otherwise) existing or arising under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b)any Swap Contract, but not any extensions, renewals or replacements of such Indebtedness except provided that (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same obligations are in effect on the date of this Agreement and (iior were) refinancings and extensions of any entered into by such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed Person to hedge against (including cap, collar, or exchange) interest rates or foreign exchange rates, foreign exchange rates or commodities pricing risks which are incurred in the ordinary course of business and not for speculative purposespurposes 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;
(b) Indebtedness among Newpark and its wholly owned Subsidiaries, which Indebtedness shall (i) in the case of Indebtedness owed Newpark, constitute “Pledged Debt” under the Security Agreement, (ii) be on terms (including subordination terms) acceptable to the Administrative Agent and (iii) be otherwise permitted under the provisions of Section 7.03;
(c) Indebtedness under the Loan Documents;
(d) Indebtedness outstanding on the date hereof and listed on Schedule 7.02 and any refinancings, refundings, renewals or extensions thereof (without increasing, or shortening the maturity of, the principal amount thereof except as permitted by this Agreement);
(e) Guarantees incurred by Newpark or any of its Subsidiaries of obligations of Newpark or any Subsidiary to the extent such obligations are permitted to be incurred hereunder;
(f) Indebtedness incurred by any Loan Party in respect of letters Capitalized Leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.01(i); provided, however, that the aggregate amount of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in all such Indebtedness at any one time outstanding (including any such Indebtedness outstanding on the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsdate hereof) shall not exceed $20,000,000 at any one time outstanding;
(g) unsecured Indebtedness incurred in an aggregate principal amount at any time outstanding not to exceed $300,000,000 issued by Newpark, any Loan Party other Borrower, or any of their Subsidiaries; provided that (i) immediately prior to and after giving effect to the issuance of such Indebtedness, there would be no Default under this Agreement, (ii) such Indebtedness’ scheduled maturity is no earlier than 91 days after ▇▇▇▇▇ ▇, ▇▇▇▇, (▇▇▇) such Indebtedness does not require any scheduled repayments, defeasance or redemption (or sinking fund therefor) of any principal amount thereof prior to maturity, and (iv) no indenture or other agreement governing such Indebtedness contains (A) maintenance financial covenants or (B) covenants or events of default that are more restrictive in any material respect on Newpark or any of 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 business in accordance with customary its Subsidiaries than then applicable market terms and paid within the specified time, unless contested in good faith by appropriate proceedings conditions for comparable issuers and reserved for substantially in accordance with GAAPissuances;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection any Foreign Subsidiary to any Person other than Newpark or any Subsidiary in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is not guaranteed by Newpark or any other Loan Party in the ordinary course of businessParty;
(i) Indebtedness in respect of (i) any Loan Party owing to any other Loan Party Swap Contracts and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, thatCash Management Agreements, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated limitations set forth in 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, is reasonably satisfactory to the Collateral AgentSection 7.17;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Partiesarising under Permitted Sale Leaseback Transactions;
(k) Indebtedness in respect of the convertible notesarising under Permitted Term Loans; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;and
(l) other unsecured Indebtedness, provided that such additional Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party Newpark or any Affiliate or employee of its Subsidiaries in an aggregate principal amount (for Newpark and all Subsidiaries) not to exceed $40,000,000 at any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentone time outstanding.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any secured Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness outstanding on the date hereof and listed on Schedule 7.03(b)8.03 and any refinancings, but not any extensionsrefundings, renewals or replacements extensions thereof, provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount, subject to subsection (ih) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable below, equal to the obligor thereon a reasonable premium or to the Lenders than the Indebtedness being refinanced or extendedother reasonable amount paid, and the average life to maturity thereof is greater than or fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromexisting commitments unutilized thereunder;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetQualifying Swap Contracts;
(d) the SBA PPP Loanpurchase money Indebtedness (including Capital Leases) described in Section 8.01(i) not to exceed an aggregate outstanding principal amount at any time of $100,000,000, excluding those described on Schedule 8.03;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business Real Estate Financing Facilities and not for speculative purposesSenior Parity Debt;
(f) Indebtedness incurred by any Loan Party in respect obligations arising under the Permitted Trade Receivables Facilities, provided that the amount of letters all accounts receivable owing to the Foreign Subsidiaries that are sold, transferred or assigned shall not exceed the equivalent of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created EUR 500,000,000 in the ordinary course aggregate, based on the prevailing spot rate of business, including exchange for the currencies in respect which such accounts receivable are denominated as of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsthe date of determination;
(g) Indebtedness incurred by any Loan Party of a Person, or in respect of accounts payable assets, acquired pursuant to trade creditors for goods an Acquisition permitted under Section 8.12 and services and current operating liabilities (not existing at the result time of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified timesuch Acquisition, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
provided that (i) such Indebtedness was not incurred in contemplation of (i) any Loan Party owing to any other Loan Party such Acquisition and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in 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, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than not outstanding for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less more than one hundred eighty (180) days following after the Last Out Maturity Datedate of such Acquisition; and
(mh) the 2021 Preferred Stock on terms reasonably acceptable Other secured Indebtedness in an aggregate amount not to the Administrative Agent exceed, at any time, $25,000,000 less any increases in its sole discretion. For purposes amounts of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed secured Indebtedness pursuant to have been incurred in reliance only on the exception in clause subsection (ab) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentabove.
Appears in 1 contract
Sources: Credit Agreement (Tech Data Corp)
Indebtedness. CreateIndebtedness. Incur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, (without duplication (which constitutes “Permitted Indebtedness”duplication):
(a) Obligations of Indebtedness existing on the Loan Parties under the Loan Documents;
(bdate hereof and set forth in Schedule 5.01(a) Surviving Indebtedness listed on Schedule 7.03(b), but not and any extensions, renewals or replacements of such Indebtedness except existing mortgages and Capital Lease Obligations; provided, however, that (i) renewals and extensions expressly provided for in the agreements evidencing principal amount of any such Indebtedness as extension, renewal or replacement shall not exceed the same are in effect on principal amount of the date of this Agreement and mortgage or Capital Lease Obligation so extended, renewed or replaced, (ii) refinancings the mortgage or Capital Lease Obligation so extended, renewed or replaced shall not be secured by any property or asset that was not already pledged to secure the existing mortgage or Capital Lease Obligation, and extensions of any (iii) such Indebtedness if extension, renewal or replacement is not on terms materially more restrictive to the terms and conditions thereof are not Borrower or its Subsidiaries or materially less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced mortgage or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being Capital Lease Obligation so extended, renewed or refinancedreplaced;
(b) Indebtedness represented by the Loan Documents; provided, however, that Indebtedness consisting of commercial paper of the Borrower may also be incurred pursuant to this clause (Bb) exceed in a to the extent the sum of such Indebtedness and the aggregate principal amount of Loans then outstanding do not exceed the Indebtedness being renewed, extended or refinanced, or Advances at such time (Csubject to Section 5.01(n) be incurred, created or assumed if any Default or Event to the extent in excess of Default has occurred and is continuing or would result therefrom;$100,000,000).
(c) Indebtedness incurred upon the acquisition of any property or asset secured by Liens on such property or asset in accordance with respect to Capital Leases and 5.02(b); provided, however, that the amount of such Indebtedness shall not exceed the purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that price of any such Indebtedness (x) in the case of additional Capital Leases property or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP LoanIndebtedness secured by Liens permitted under 5.02(i), 5.02(j) or 5.02(m);
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks Subsidiaries existing at the time they are acquired by the Borrower and not incurred in the ordinary course contemplation of business and not for speculative purposessuch acquisition;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsof Subsidiaries not prohibited by Section 5.09;
(g) Indebtedness incurred by of (i) the Borrower to any Loan Party wholly owned Subsidiary, Choice Hotels Franchising or Quality Hotels; (ii) any wholly owned Subsidiary, Choice Hotels Franchising or Quality Hotels to the Borrower; and (iii) any Subsidiary, Choice Hotels Franchising or Quality Hotels to any wholly owned Subsidiary (or to Choice Hotels Franchising or Quality Hotels)(for the purposes of this clause (g), "wholly owned Subsidiary" includes any wholly owned subsidiary of Choice Hotels Franchising and/or Quality Hotels, any Subsidiary that would otherwise constitute a wholly owned Subsidiary but for directors' qualifying shares or similar matters, and any Subsidiary the only direct shareholders, members or participants in respect of 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 business in accordance with customary terms and paid within the specified timewhich are wholly owned Subsidiaries, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPChoice Hotels Franchising or Quality Hotels);
(h) Indebtedness consisting represented by notes or letters of guarantees resulting from endorsement credit issued for the account of negotiable instruments the Borrower or any Subsidiary in connection with insurance policies and in a form substantially similar to the notes or letters of credit issued for collection by the account of the Borrower or any Loan Party Subsidiary set forth in Schedule 5.01(h) issued in connection with existing insurance policies of the ordinary course of businessBorrower or such Subsidiary;
(i) Indebtedness represented by utility bonds, performance bonds, state self insurance bonds and miscellaneous other bonds other than those existing on the date hereof and listed in Schedule 5.01(a) (including any extensions, renewals and replacements), the aggregate principal amount of such Indebtedness at any one time not to exceed $20,000,000 (isubject to Section 5.01(n) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right excess 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, is reasonably satisfactory to the Collateral Agent$20,000,000);
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan PartiesBorrower consisting of Guarantees in connection with pension and deferred compensation arrangements arising in connection with the Distribution; provided, however, that the aggregate amount of such Indebtedness shall not exceed $40,000,000;
(k) Indebtedness in respect consisting of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the ObligationsManor Care Note;
(l) Non-Recourse Hotel Indebtedness; provided, that, so long as the Manor Care Note remains in effect or any principal, interest or any other unsecured Indebtednessexpenses or amounts payable thereunder shall be unpaid, provided that the proceeds of the incurrence of such Non-Recourse Hotel Indebtedness matures not less than one hundred eighty shall be applied solely to prepay amounts outstanding under the Manor Care Note;
(180m) days following the Last Out Maturity DateIndebtedness consisting of Sale and Lease-back Transactions permitted under Section 5.03; and
(mn) other unsecured Indebtedness of the 2021 Preferred Stock on terms reasonably acceptable Borrower in an aggregate principal amount at any one time outstanding not to exceed $100,000,000; provided, however, that the Administrative Agent covenants and events of default contained in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder with an aggregate principal amount in excess of $10,000,000 shall not be more restrictive of the Borrower and expressly subordinated to its Subsidiaries than those in this Agreement; and provided further, that the Loans and other Obligations in a manner and on terms satisfactory to aggregate amount of Guarantees by the Administrative AgentBorrower may not exceed $50,000,000.
Appears in 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, (without duplication (which constitutes “Permitted Indebtedness”duplication):
(a) Obligations of Indebtedness existing on the Loan Parties under the Loan Documents;
(bdate hereof and set forth in Schedule 6.01(a) Surviving Indebtedness listed on Schedule 7.03(b), but not and any extensions, renewals or replacements of such Indebtedness except existing mortgages and Capital Lease Obligations; provided, however, that (i) renewals and extensions expressly provided for in the agreements evidencing principal amount of any such Indebtedness as extension, renewal or replacement shall not exceed the same are in effect on principal amount of the date of this Agreement and mortgage or Capital Lease Obligation so extended, renewed or replaced, (ii) refinancings the mortgage or Capital Lease Obligation so extended, renewed or replaced shall not be secured by any property or asset that was not already pledged to secure the existing mortgage or Capital Lease Obligation, and extensions of any (iii) such Indebtedness if extension, renewal or replacement is not on terms materially more restrictive to the terms and conditions thereof are not Company or its Subsidiaries or materially less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced mortgage or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being Capital Lease Obligation so extended, renewed or refinancedreplaced;
(b) Indebtedness represented by the Loan Documents; provided, however, that Indebtedness consisting of commercial paper of the Company may also be incurred pursuant to this clause (Bb) exceed in a to the extent the sum of such Indebtedness and the aggregate principal amount of Loans then outstanding do not exceed the Indebtedness being renewed, extended or refinanced, or Total Commitment at such time (Csubject to Section 6.01(m) be incurred, created or assumed if any Default or Event to the extent in excess of Default has occurred and is continuing or would result therefrom;$250,000,000).
(c) Indebtedness incurred upon the acquisition of any property or asset secured by Liens on such property or asset in accordance with respect to Capital Leases and Section 6.02(b); provided, however, that the amount of such Indebtedness shall not exceed the purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that price of any such Indebtedness (x) in the case of additional Capital Leases property or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP LoanIndebtedness secured by Liens permitted under Section 6.02(i), 6.02(j) or 6.02(m);
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks Subsidiaries existing at the time they are acquired by the Company and not incurred in the ordinary course contemplation of business and not for speculative purposessuch acquisition;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsof Subsidiaries not prohibited by Section 6.09;
(g) at any time prior to the Distribution, Indebtedness of (i) the Company to any wholly owned Subsidiary, Choice Hotels International or Quality Hotels; (ii) any wholly owned Subsidiary, Choice Hotels International or Quality Hotels to the Company; (iii) any Subsidiary (other than the Pharmacy Subsidiary), Choice Hotels International or Quality Hotels to any wholly owned Subsidiary (or to Choice Hotels International or Quality Hotels); and (iv) the Pharmacy Subsidiary to the Company and Manor HealthCare, as applicable, incurred by pursuant to or in connection with the Pharmacy Subsidiary Agreements in an aggregate principal amount not to exceed $60,000,000 outstanding at any Loan Party in respect of 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 business in accordance with customary terms and paid within the specified time, unless contested or the Company and Manor HealthCare, as applicable, to the Pharmacy Subsidiary (for the purposes of this clause (g), "wholly owned Subsidiary" includes any wholly owned subsidiary of Choice Hotels International and/or Quality Hotels, any Subsidiary that would otherwise constitute a wholly owned Subsidiary but for directors' qualifying shares or similar matters, and any Subsidiary the only direct shareholders, members or participants in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPwhich are wholly owned Subsidiaries, Choice Hotels International or Quality Hotels);
(h) at any time following the Distribution, Indebtedness consisting of guarantees resulting from endorsement (i) the Company to any wholly owned Subsidiary; (ii) any wholly owned Subsidiary to the Company; (iii) any Subsidiary (other than the Pharmacy Subsidiary) to any wholly owned Subsidiary; and (iv) the Pharmacy Subsidiary to the Company and Manor HealthCare, as applicable, incurred pursuant to or in connection with the Pharmacy Subsidiary Agreements in an aggregate principal amount not to exceed $60,000,000 outstanding at any time, or the Company and Manor HealthCare, as applicable, to the Pharmacy Subsidiary (for the purposes of negotiable instruments this clause (g), "wholly owned Subsidiary" includes any Subsidiary that would otherwise constitute a wholly owned Subsidiary but for collection by directors' qualifying shares or similar matters, and any Loan Party Subsidiary the only direct shareholders, members or participants in the ordinary course of businesswhich are wholly owned Subsidiaries);
(i) Indebtedness represented by notes or letters of (i) credit issued for the account of the Company or any Loan Party owing to any other Loan Party Subsidiary in connection with insurance policies and (ii) Indebtedness owed by in a Subsidiary that is not a Guarantor Subsidiary to any Loan Party form substantially similar to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to or letters of credit issued for the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full account of the Obligations pursuant to the terms Company or any Subsidiary set forth in Schedule 6.01(i) issued in connection with existing insurance policies of the applicable promissory notes Company or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral AgentSubsidiary;
(j) unsecured Indebtedness (represented by patient fund bonds, utility bonds, performance bonds, state self insurance bonds and miscellaneous other bonds other than for borrowed moneythose existing on the date hereof and listed in Schedule 6.01(a) that may be deemed (including any extensions, renewals and replacements), the aggregate principal amount of such Indebtedness at any one time not to exist pursuant exceed $20,000,000 (subject to any bona fide warranty or contractual service obligations or performance Section 6.01(m) to the extent in the ordinary course excess of business of the Loan Parties$20,000,000);
(k) Indebtedness in respect of the convertible notesPharmacy Subsidiary; provided thatprovided, all such however, that Indebtedness in respect of the convertible notes Pharmacy Subsidiary to the Company and Manor HealthCare, as applicable, shall be unsecured and subordinated in right of payment subject to the payment limitations set forth in full paragraphs (g)(iv) and (h)(iv) of Section 6.01; and provided further, that the aggregate amount of Guarantees by the Company or any other than any payment as a result Subsidiary of Indebtedness of the conversion Pharmacy Subsidiary, together with the aggregate principal amount of such convertible notes into Equity Interests outstanding Indebtedness of Parent) the Pharmacy Subsidiary to the ObligationsCompany and Manor HealthCare, may not exceed $60,000,000;
(l) other unsecured IndebtednessIndebtedness of the Company consisting of Guarantees in connection with pension and deferred compensation arrangements arising in connection with the Distribution; provided, provided however, that the aggregate amount of such Indebtedness matures shall not less than one hundred eighty (180) days following the Last Out Maturity Dateexceed $10,000,000; and
(m) other unsecured Indebtedness of the 2021 Preferred Stock on terms reasonably acceptable Company in an aggregate principal amount at any one time outstanding not to exceed $300,000,000; provided, however, that the Administrative Agent covenants and events of default contained in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder with an aggregate principal amount in excess of $10,000,000 shall not be more restrictive of the Company and expressly subordinated to the Loans and other Obligations its Subsidiaries than those in a manner and on terms satisfactory to the Administrative Agentthis Agreement.
Appears in 1 contract
Sources: Competitive Advance and Multi Currency Revolving Credit Facility Agreement (Manor Care Inc/New)