Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except: (a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents; (b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt; (c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt; (d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes; (e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1; (f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof; (g) the Comerica Debt and the Subordinated Debt; (h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i); (i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 4 contracts
Sources: Credit Agreement (Sterling Construction Co Inc), Credit Agreement (Sterling Construction Co Inc), Credit Agreement (Sterling Construction Co Inc)
Limitation on Debt. Create(a) The Company shall not, incurand shall not permit any Restricted Subsidiary to, assume or suffer Incur any Debt (including Acquired Debt) unless, after giving effect to exist any Debtthe application of the proceeds thereof, excepteither:
(a1) Indebtedness such Debt is Debt of any Credit Party the Company or a Restricted Subsidiary and after giving effect to Agent the Incurrence of such Debt and the Lenders under this Agreement and/or application of the other Loan Documents;proceeds thereof, the Consolidated Interest Coverage Ratio would be greater than 2.0 to 1.0; or
(2) such Debt is Permitted Debt.
(b) Notwithstanding anything to the contrary contained in this Section 1008, any increase in the amount of Debt existing on solely by reason of currency fluctuation shall not be considered an Incurrence of Debt for purposes of this Section 1008. For purposes of determining compliance with this Section 1008, the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate U.S. dollar-equivalent principal amount of such renewed or refinanced Debt denominated in any currency other than U.S. dollars shall not exceed be calculated based on the aggregate principal amount relevant currency exchange rate in effect as of the original date such Debt outstanding on the Effective Date (less any principal payments and is Incurred; provided that the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) Permitted Refinancing Debt denominated in the renewal or refinancing of such same currency as the Debt being Refinanced thereby shall be calculated based on substantially the same or better terms as relevant exchange rate in effect with respect to such as of the date of the Incurrence of the Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debtbeing so Refinanced;
(c) The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Debt in the form of Borrowers additional Debt with the same terms, the accumulation of dividends on Disqualified Stock or any Subsidiary incurred to finance the acquisition Preferred Stock of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect Restricted Subsidiaries (to the incurrence thereof (iextent not paid) no Default and the payment of dividends on Disqualified Stock or Event Preferred Stock of Default shall have occurred and be continuing, and (ii) Restricted Subsidiaries in the aggregate amount form of all such Debt at any one time outstanding (including, without limitation, any Debt additional shares of the type described same class of Disqualified Stock or Preferred Stock of Restricted Subsidiaries will not be deemed to be an Incurrence of Debt or an issuance of Disqualified Stock for purposes of this Section 1008; provided that, in this clause (c) which is set forth on Schedule 8.1 hereof) each case, the amount thereof shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those be included in effect at the time Consolidated Interest Expense of the original incurrence of such Debt;Company as accrued; and
(d) For purposes of determining compliance with this Section 1008, in the event that an item of Debt meets the criteria of more than one of the categories of Permitted Debt described in clauses (a) through (m) of the definition of “Permitted Debt” or is entitled to be incurred pursuant to clause (a)(1) of this Section 1008, the Company shall, in its sole discretion, classify or reclassify such item of Debt (or any part thereof), in any manner that complies with this Section 1008, and such item of Debt will be treated as having been Incurred pursuant to one or more of such categories of Permitted Debt or pursuant to clause (a)(1) of this Section 1008. For purposes of determining any particular amount of Debt under any Hedging Transactionsthis Section 1008, provided that such transaction is entered into for risk management purposes and Guarantees, Liens or obligations, in each case, in support of letters of credit supporting Debt shall not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only included to the extent permitted under Section 8.7 hereof;
(g) such letters of credit are included in the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingDebt.
Appears in 3 contracts
Sources: Indenture (Sanmina-Sci Corp), Indenture (Sanmina-Sci Corp), Indenture (Sanmina-Sci Corp)
Limitation on Debt. Create(a) The Company will not, and will not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer in any manner become directly or indirectly liable with respect to exist or otherwise become responsible for, contingently or otherwise, the payment of (individually and collectively, to “Incur” or, as appropriate, an “Incurrence”), any Debt (including any Acquired Debt, except); provided that the Company and any Restricted Subsidiary will be permitted to Incur Debt (including Acquired Debt) if:
(a1) Indebtedness of any Credit Party after giving effect to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing Incurrence of such Debt (provided that (i) and the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount application of the original Debt outstanding proceeds thereof, on the Effective Date a pro forma basis, no Default or Event of Default would occur or be continuing; and
(less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii2) at the time of such renewal or refinancing no Default or Event of Default has occurred Incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0; and provided further that, Restricted Subsidiaries that are not Guarantors may not incur Debt (iincluding any Acquired Debt) no Default except for an amount not to exceed $25.0 million at any one time outstanding that may be incurred by Restricted Subsidiaries that are not Guarantors or Event Eletson MI Parties; provided further that, notwithstanding the foregoing proviso, Eletson Finance may incur Debt in connection with serving as a co-obligor, co-issuer or guarantor of Default shall have occurred and be continuingDebt incurred by the Company or any Restricted Subsidiary that is otherwise permitted by this Section 4.09(a).
(b) Section 4.09(a) will not, and however, prohibit the following (iicollectively, “Permitted Debt”):
(1) the Incurrence by the Company or any Restricted Subsidiary (other than an Eletson MI Party) of Debt under Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed $175.0 million less (without duplication) the aggregate amount of all Net Cash Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary since the date of this Indenture to repay any term Debt under a Credit Facility or to repay any revolving credit Debt under a Credit Facility and effect a corresponding commitment reduction thereunder pursuant to the covenant described above under Sections 4.10 and 4.11;
(2) the Incurrence by the Issuers of Debt pursuant to (i) the Notes issued on the Closing Date, (ii) PIK Notes issued in respect thereof (and PIK Notes issued in respect of such PIK Notes) and the Incurrence by the Guarantors of Guarantees of the Notes described in the foregoing clauses (i) and (ii);
(3) any Debt of the Company or any Restricted Subsidiary (other than Debt described in another clause of Section 4.09(b)) outstanding on the Closing Date;
(4) the Incurrence by the Company or any Restricted Subsidiary of intercompany Debt between the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that:
(i) if the obligor of such Debt is the Company or a Guarantor, such Debt is (x) unsecured and (y) it is expressly subordinated in right of payment to the prior payment in full in cash (whether upon Stated Maturity, acceleration or otherwise) and the performance in full of its obligations under the Notes or its Guarantee, as the case may be;
(ii) (x) any disposition, pledge or transfer of any such Debt to any Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing to the Company or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (4); and
(iii) no Debt may be incurred by any Person (other than an Eletson MI Party) pursuant to this clause (4) that is owed to the Company, Eletson Finance or any Restricted Subsidiary that is not a Guarantor.
(5) the Incurrence by the Company or any Restricted Subsidiary of Debt arising under any appeal and reimbursement obligation entered into in respect of any judgment not constituting an Event of Default;
(6) the Incurrence by the Company or any Restricted Subsidiary (other than an Eletson MI Party) of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing all or any part of the purchase price, lease expense or cost of construction or improvement of property, plant or equipment used in the business of the Company or any such Restricted Subsidiary (including any reasonable related fees or expenses Incurred in connection with such acquisition or development) (and any Permitted Refinancing Debt with respect to such assets); provided that the principal amount of such Debt so Incurred at any one time outstanding shall not in the aggregate exceed $102.0 million;
(7) the Incurrence by the Company or any Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Company or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (cg) which is set forth on Schedule 8.1 hereof) shall not will at no time exceed $5,000,000the net proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value), actually received from the original incurrence sale of such Debtassets;
(d) 8) the Incurrence by the Company or any Restricted Subsidiary of Debt under any Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(e9) the Incurrence by the Company or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(10) the Incurrence by the Company or any Restricted Subsidiary of Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described abovethe honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that both at the time such Debt is extinguished within 5 Business Days of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and Incurrence, (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations and
Appears in 3 contracts
Limitation on Debt. CreateThe Borrower will not, incurand will not permit any of its Subsidiaries to, assume incur or suffer at any time be liable with respect to exist any Debt, Debt except:
(a) Indebtedness of any Credit Party to Agent and Debt under the Lenders under this Agreement and/or the other Loan Documents;
(b) Debt owing to the Borrower or a Subsidiary all of the outstanding common stock of which (other than directors' qualifying shares) is owned directly or indirectly by the Borrower;
(c) Debt of Subsidiaries not otherwise permitted by this Section in an aggregate principal amount at any time outstanding not exceeding $500,000,000;
(d) Debt existing on of the Effective Date Borrower (and set forth not of any Subsidiary) not otherwise permitted by this Section in Schedule 8.1 attached hereto and an aggregate principal amount at any renewals or refinancing of such Debt time outstanding not exceeding $100,000,000;
(provided that e) Guarantees (i) by the Borrower of the Debt of a Subsidiary, (ii) by any Significant Subsidiary of Debt of the Borrower and (iii) by any Subsidiary of Debt of its own Subsidiaries, provided that the Guaranteed Debt is permitted under this Section;
(f) Debt of any Person at the time such Person becomes a Subsidiary and not incurred in contemplation of such event;
(g) Debt of the Borrower or a Subsidiary in existence on the Closing Date and extensions, renewals and refinancings thereof (it being understood that any Debt under the Existing Credit Agreement shall be refinanced on the First Borrowing Date solely with Loans);
(h) Debt of Subsidiaries incurred or assumed (in connection with an equipment trust agreement, conditional sale agreement, chattel mortgage or lease or otherwise) for the purpose of directly or indirectly financing all or any part of the cost of acquiring, constructing or rebuilding any asset and any renewal, extension or refinancing thereof; provided that the aggregate principal amount of such renewed Debt (other than extensions, renewals and refinancings) incurred or refinanced Debt shall not exceed the aggregate principal amount assumed in any fiscal year of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether Borrower pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereofh) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i)350,000,000;
(i) additional unsecured short-term Debt of the Borrower (and not otherwise described above, provided that both at of any Subsidiary) evidenced by commercial paper or similar instruments; and
(j) Debt of the time Borrower (and not of and immediately any Subsidiary) which matures not earlier than six months after giving effect to the incurrence thereof (i) no Default or Event final maturity date of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingTerm Loans.
Appears in 2 contracts
Sources: Credit Agreement (Norfolk Southern Corp), Credit Agreement (Norfolk Southern Corp)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt of Company or any of its Subsidiaries existing on the Effective Date and set forth in Schedule 8.1 attached hereto (other than any Debt of the type described in clause (c) below) and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), and (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms (taken as a whole, as reasonably determined by the Borrowers and the Agent) as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers Company or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default the Credit Parties shall have occurred and be continuing, in pro forma compliance with the financial covenants set forth in Section 7.9 hereof and (ii) the aggregate amount of all such Debt at any one time outstanding (includingoutstanding, without limitation, together with any such Debt of the type described in this incurred under clause (cj) which is set forth on Schedule 8.1 hereof) of this Section 8.1, shall not exceed $5,000,000, and any renewals (x) on or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only prior to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety AgreementsTrigger Date, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and $3,000,000 at any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the one time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom outstanding and (iiy) after the aggregate amount of all such Debt shall not exceed Trigger Date, $1,000,000 4,000,000 at any one time outstanding.;
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (PMFG, Inc.), Revolving Credit and Term Loan Agreement (Peerless Manufacturing Co)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to the Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers the Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000250,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Subordinated Debt;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;; and
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 100,000 at any one time outstanding.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Inogen Inc), Revolving Credit and Term Loan Agreement (Inogen Inc)
Limitation on Debt. CreateAK Steel shall not issue, incurdirectly or indirectly, assume or suffer any Debt unless, immediately after giving effect to exist any the issuance of such Debt and the receipt and application of the proceeds thereof, the pro forma Consolidated EBITDA Coverage Ratio would be greater than 2.5 to 1.0. Notwithstanding the foregoing limitation, AK Steel may issue the following Debt, except:
(a) Indebtedness Debt issued by AK Steel pursuant to the Permitted Credit Facilities and Guarantees by AK Steel of any Credit Party obligations in respect of bonds or notes (in an aggregate principal amount not exceeding $60.0 million) payable solely from the proceeds of (i) taxes payable by AK Steel on real or depreciable personal property relating to Agent the Rockport Works or (ii) charges payable by AK Steel for sewer and water services relating to the Lenders Rockport Works and, to the extent that such taxes or charges are insufficient to make such payments, payments under this Agreement and/or such Guarantees (provided that the other Loan Documentspayments under such bonds or notes or such Guarantees are not required to be prefunded by more than an aggregate amount equal to one year of debt service on such bonds or notes and are not subject to acceleration by the express terms thereof or otherwise);
(b) Debt issued by AK Steel owed to and held by a Wholly Owned Subsidiary; provided, however, that any Debt existing on the Effective Date and set forth subsequent issuance or transfer of any Equity Interests that results in Schedule 8.1 attached hereto and such Wholly Owned Subsidiary ceasing to be a Wholly Owned Subsidiary or any renewals or refinancing transfer of such Debt (provided other than to another Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the issuance of such Debt by AK Steel;
(c) Securities (other than Initial Securities issued after the first date on which the Initial Securities were originally issued);
(d) Debt (other than Debt described in subsections (a) or (b) of this Section 4.5) outstanding on the first date on which the Initial Securities were originally issued;
(e) Debt issued by AK Steel, whether or not secured by a Lien, constituting all or a part of the purchase price of assets or property acquired or constructed after the first date on which the Initial Securities were originally issued; provided, however, that Debt issued under this subsection (e) in any calendar year shall not exceed in aggregate principal amount the sum of (i) $50.0 million for each of 2002, 2003 and 2004, and $35.0 million for each calendar year from and including 2005 to and including 2012 plus (ii) the excess of the aggregate principal amount otherwise permitted to be issued under this subsection (e) in all previous calendar years to and including the calendar year in which the Initial Securities were originally issued over the aggregate principal amount actually issued by AK Steel during such period under this subsection (e);
(f) Refinancing Debt in respect of any Debt permitted pursuant to the first paragraph of this Section 4.5 or any Debt permitted pursuant to subsection (c), (d) or (e) of this Section 4.5 or this subsection (f);
(g) Obligations of AK Steel pursuant to (i) interest rate swap or similar agreements designed to protect AK Steel against fluctuations in interest rates in respect of Debt of AK Steel to the extent the notional principal amount of such renewed or refinanced Debt shall obligation does not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to which such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuinginterest rate contracts relate, and (ii) foreign exchange or commodity hedge, exchange or similar agreements designed to protect AK Steel against fluctuations in foreign currency exchange rates or commodity prices in respect of foreign exchange or commodity exposures incurred by AK Steel in the aggregate amount ordinary course of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debtits business;
(h) Debt arising under the Surety Agreements(not otherwise permitted to be issued pursuant to subsections (a) through (g) of this Section 4.5) in an aggregate principal amount which, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
together with (i) additional unsecured any other outstanding Debt not otherwise described above, provided that both at the time of and immediately after giving effect issued by AK Steel pursuant to the incurrence thereof this subsection (ih) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount Debt issued and Preferred Equity Interests then outstanding and issued by Subsidiaries pursuant to subsection (h) of all such Debt shall Section 4.6 hereof does not exceed $1,000,000 100.0 million at any one time outstanding.; or
Appears in 2 contracts
Sources: Indenture (Ak Steel Holding Corp), Indenture (Ak Steel Holding Corp)
Limitation on Debt. Create(a) The Company may not, incurand may not permit any of its Restricted Subsidiaries to, assume or suffer to exist Incur any Debt, except:
(a) Indebtedness of any Credit Party unless the Leverage Ratio for the most recently completed fiscal quarter for which financial statements are available would be less than 4.0 to Agent and the Lenders under this Agreement and/or the other Loan Documents;1.
(b) any Debt existing on Notwithstanding the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such foregoing limitation, the following Debt (provided that “Permitted Debt”) may be Incurred: (i) any direct or indirect obligations owed in connection with the payment obligations on the Notes; (ii) Debt (other than Debt described in another clause of this Section 5.04) outstanding, committed or mandated on the date of this Indenture; (iii) Pari Passu Debt of the Company and Debt of its Subsidiaries under Credit Facilities and any Permitted Refinancing Debt in respect thereof, in an aggregate principal amount of such renewed or refinanced Debt shall at any one time outstanding that does not exceed an amount equal to the aggregate greater of (a) $50 million (or the U.S. Dollar Equivalent of any other currency) and (b) 6.0% of Total Assets, plus, (1) any accrual or accretion of interest that increases the principal amount of Debt under Credit Facilities and (2) in the original case of any refinancing of Debt outstanding on permitted under this clause (iii) or any portion thereof, the Effective Date (less any principal payments and the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred in connection with such refinancing; (iv) Debt owed by the Company to any commitment reductions made thereon on of its Restricted Subsidiaries or prior Debt owed by any of the Restricted Subsidiaries to the Company or any other of the Restricted Subsidiaries; provided, however, that upon either (1) the transfer or other disposition by the Company or such Restricted Subsidiary of any Debt so permitted to a Person other than the Company or any of its Restricted Subsidiaries or (2) such Restricted Subsidiary ceasing to be the Company’s Restricted Subsidiary, the provisions of this clause (iv) shall no longer be applicable to such renewal or refinancing), (ii) the renewal or refinancing of Debt and such Debt shall be on substantially the same or better terms as in effect with respect deemed to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) have been Incurred at the time of such transfer or other disposition; (v) Acquired Debt; (vi) Minority Shareholder Loans; provided that such Debt is subordinated in right of payment to the Notes; (vii) Permitted Refinancing Debt of the Company or any Restricted Subsidiary Incurred in exchange for or the proceeds of which are used to refinance or refund or replace, or any extension or renewal of (including, in each 63 case, successive refinancings, extensions and renewals), Debt of the Company or refinancing no Default any Restricted Subsidiary Incurred pursuant to Section 5.04(a) and clauses (i), (ii), (v), and this clause (vii), as the case may be; (viii) Debt of the Company or Event any Restricted Subsidiary represented by letters of Default has occurred credit in order to provide security for workers’ compensation claims, health, disability or other employee benefits, payment obligations in connection with self- insurance or similar requirements of the Company or any Restricted Subsidiary in the ordinary course of business; (ix) customary indemnification, adjustment of purchase price or similar obligations, in each case, Incurred in connection with the disposition of any assets of the Company or any Restricted Subsidiary, and is continuing earn-out provisions or would result from the renewal contingent payments in respect of purchase price or refinancing adjustment of purchase price or similar obligations in acquisition agreements other than Guarantees of Debt Incurred by any Person acquiring all or any portion of such Debt;
assets for the purpose of financing such acquisition; provided that the maximum aggregate liability in respect of each such Incurrence of such Debt will at no time exceed the gross proceeds actually received by the Company or any Restricted Subsidiary in connection with the related disposition; (x) obligations in respect of (a) customs, VAT or other tax guarantees, (b) bid, performance, completion, guarantee, surety and similar bonds, including Guarantees or obligations of the Company or any Restricted Subsidiary with respect to letters of credit supporting such obligations and (c) any the financing of insurance premiums, in each case, in the ordinary course of business and not related to Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof for borrowed money; (ixi) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall Company or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument including, but not exceed $5,000,000limited to, electronic transfers, wire transfers, netting services and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactionscommercial card payments, drawn against insufficient funds; provided that such transaction Debt is entered into for risk management purposes and not for speculative purposes;
extinguished within five Business Days of Incurrence; (exii) guarantees by the Company or any Restricted Subsidiary of Debt arising from judgments or decrees not deemed to be a Default any other obligation or Event liability of Default under subsection the Company or any Restricted Subsidiary (g) other than of Section 9.1;
(f) any Debt owing to a Person Incurred in violation of this covenant); provided, however, that if the Debt being guaranteed is a Credit Party, but only subordinated in right of payment to the Notes or any Guarantee of the Notes, then such guarantee shall be subordinated substantially to the same extent permitted under Section 8.7 hereof;
as the relevant Debt guaranteed; (g) the Comerica Debt and the Subordinated Debt;
(hxiii) Debt arising under borrowing facilities provided by a special purpose vehicle notes issuer to the Surety Agreements, provided that Company or any Restricted Subsidiary in connection with the Borrowers shall promptly terminate issuance of notes or other similar debt securities intended to be supported primarily by the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion payment obligations of the construction projects set forth on Schedule 8.1(i)Company or any Subsidiary in connection with any vendor financing platform;
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 2 contracts
Sources: Indenture (Millicom International Cellular Sa), Indenture (Millicom International Cellular Sa)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Parent will not, and will not permit any of any Credit Party its Restricted Subsidiaries to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) incur any Debt existing on (including Acquired Debt); provided, however, that the Effective Date and set forth in Schedule 8.1 attached hereto Parent, the Issuer and any renewals or refinancing of such Restricted Subsidiary may incur Debt (provided that (iincluding Acquired Debt) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)if, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially and the same or better than those in effect at the time receipt and application of the original incurrence of such Debt;proceeds therefrom:
(d1) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes the Consolidated Fixed Charge Coverage Ratio of the Parent and not for speculative purposes;its Restricted Subsidiaries would be greater than 2.00 to 1.00; and
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i2) no Default or Event of Default shall have occurred and be continuing at the time or result therefrom and as a consequence of the incurrence of such Debt (ii) any Debt incurred pursuant to this provision being herein referred to as “Coverage Debt”); provided, however, that the aggregate amount of all such Debt (other than Acquired Debt) that may be incurred or issued pursuant to the foregoing by Non-Guarantor Subsidiaries shall not exceed $1,000,000 100.0 million at any one time outstanding.
(b) Notwithstanding Section 4.06(a), the Parent and its Restricted Subsidiaries may incur Permitted Debt.
(c) For purposes of determining any particular amount of Debt under this Section 4.06:
(1) Debt outstanding under the Credit Agreement and the Sumitomo Credit Agreement on the Issue Date will at all times be treated as incurred pursuant to clause (1) of the definition of Permitted Debt and shall not be permitted to be reclassified and
(2) guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount will not be included.
(d) Except as provided above, for purposes of determining compliance with this Section 4.06, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above, including any Coverage Debt and any category of Permitted Debt, the Parent, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(e) For purposes of determining compliance of any non-U.S. dollar-denominated Debt with this Section 4.06, the amount outstanding under U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was incurred, in the case of any term Debt, or first committed, in the cases of any revolving credit Debt; provided, however, that if such Debt is incurred to Refinance other Debt denominated in the same or different currency, and such Refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such Refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Debt does not exceed the principal amount of such indebtedness being Refinanced.
(f) The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Stock in the forms of additional shares of Capital Stock with the same terms will not be deemed to be an incurrence of Debt or issuance of Capital Stock for purposes of this Section 4.06.
Appears in 2 contracts
Sources: First Supplemental Indenture (Olin Corp), First Supplemental Indenture (Olin Corp)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to the Agent and the Lenders under this Agreement and/or the other Loan Documentsor any Lender;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing Permitted Refinancing Debt in respect of such Debt (Debt, provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)that, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of the incurrence of such renewal or refinancing Permitted Refinancing Debt, no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debttherefrom;
(c) any Debt of Borrowers such Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,00010,000,000, and any renewals or refinancings Permitted Refinancing Debt in respect of such Debt on terms substantially the same or better than those in effect Debt, provided that, at the time of the original incurrence of such Permitted Refinancing Debt, no Event of Default has occurred and is continuing or would result therefrom;
(d) Subordinated Debt;
(de) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or an Event of Default under subsection (g) of Section 9.1;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations not in connection with money borrowed, in each case provided in the Surety Agreementsordinary course of business, provided that including those incurred to secure health, safety and environmental obligations in the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion ordinary course of the construction projects set forth on Schedule 8.1(i)business;
(i) Debt (i) resulting from a bank or other financial institution honoring a check, draft or similar instrument in the ordinary course of business, (ii) in respect of credit cards, credit card processing services, debit cards, stored value cards, commercial cards (including so-called “purchase cards”, “procurement cards” or “p-cards”) incurred in the ordinary course of business or (iii) arising under or in connection with cash management services in the ordinary course of business;
(j) Debt consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(k) unsecured Debt owing to current or former consultants, employees, officers or directors (or any spouses, ex-spouses, or estates of any of the foregoing) incurred in connection with the repurchase of the Equity Interests of the Parent or any Borrower that have been issued to such Persons;
(l) Debt of any Credit Party (i) in respect of guarantee obligations of the obligations of suppliers, customer and licensees in the ordinary course of business and (ii) incurred in the ordinary course of business in respect of obligations to pay the deferred purchase price of goods and services or progress payments in connection with such goods or services;
(m) Debt to the extent constituting Permitted Investments;
(n) Debt incurred in respect of workers compensation claims, unemployment insurance, other types of social security, pension obligations, vacation pay, health, disability or other employee benefits;
(o) Debt in an aggregate principal amount or face amount at any time outstanding not to exceed $10,000,000 in respect of letters of credit, bank guaranties, surety bonds and similar instruments issued for general corporate purposes and denominated in currencies other than Dollars;
(p) unfunded pensions fund, unfunded defined benefit health plans and other employee benefit plan obligations and liabilities incurred in the ordinary course of business to the extent that the unfunded amounts would not otherwise cause an Event of Default hereunder;
(q) Debt (including any indemnification, adjustment of purchase price, deferred compensation (or other similar arrangements), earnouts or similar obligations) owing to sellers of assets or Equity Interests to a Credit Party (other than the Parent) that is incurred by the applicable Credit Party (other than the Parent) in connection with (i) the disposition of any business, assets or a Subsidiary to the extent not prohibited hereunder, other than guarantees of Debt incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition or (ii) a Permitted Acquisition (or other Investment not prohibited hereunder), in each case other than guarantees of Debt incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such disposition, Permitted Acquisition or other Investment not prohibited hereunder; provided, that in the case of each of the foregoing, to the extent any such Debt requires cash payments prior to the Latest Maturity Date in excess of $10,000,000 in any Fiscal Year, (x) such Debt shall be unsecured and subordinated to the Indebtedness on the terms and conditions reasonably acceptable to the Agent, (y) such Debt shall not mature prior to the date that is twelve (12) months after the Latest Maturity Date, and (z) such Debt shall not provide for amortization in excess of 5.0% per annum;
(r) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 15,000,000 plus the Cumulative Amount at any one time outstanding.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Archaea Energy Inc.), Revolving Credit and Term Loan Agreement (Archaea Energy Inc.)
Limitation on Debt. CreateThe Borrower shall not, and shall not permit any Subsidiary of the Borrower to, incur, assume assume, create or suffer to exist any Debt, exceptexcept for:
(a) Indebtedness in the case of any Credit Party to Agent and the Lenders Borrower:
(i) Debt under this Agreement and/or the other Loan Financing Documents;
(bii) any Debt existing on the Effective Date and set forth in on Schedule 8.1 attached hereto VI;
(iii) Debt representing a refinancing, replacement or refunding of Debt permitted by Section 5.07(a)(i), (ii), (iii), (vii) and any renewals or refinancing of such Debt (ix); provided that that:
(iA) (x) the aggregate principal amount of such renewed Debt outstanding or refinanced Debt shall available will not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) available at the time of such renewal refinancing, replacement or refinancing no Default refunding (plus fees and expenses, including any premium and defeasance costs relating to such refinancing, replacement or Event of Default has occurred and is continuing or would result from refunding), (y) the renewal or refinancing final maturity of such DebtDebt is later than the Initial Term Loan Termination Date (other than Debt that can be settled in the Borrower’s Capital Stock (other than Redeemable Stock); provided that such Debt may only be settled in cash prior to the Initial Term Loan Termination Date up to an aggregate principal amount not to exceed $400,000,000 and not before July 29, 2006; provided further that the Debt being refinanced, replaced or refunded has a final maturity date on or prior to the Initial Term Loan Termination Date) (z) (1) such Debt shall not contain any Payment Restriction more restrictive than the Payment Restrictions contained in the Debt being refinanced, replaced or refunded or (2) in the opinion of the Borrower, such Payment Restrictions are consistent with customary market terms for a financing of its nature and do not adversely affect the ability of the Borrower to meet its payment Obligations under the Financing Documents; and
(B) no obligor shall be liable for any such Debt except to the extent that it was liable for the Debt so refinanced, replaced or refunded, unless such liability in respect of such Debt would otherwise be permitted by Section 5.07(b);
(civ) Debt owing by the Borrower to a Consolidated Subsidiary of the Borrower so long as such Debt is subordinated on terms reasonably satisfactory to the Agent to the Debt of the Borrower under the Financing Documents;
(v) any Lien permitted by Section 5.10 that constitutes Debt not otherwise permitted by this Section;
(vi) Letters of Borrowers or any Subsidiary incurred credit, surety bonds, Guarantees and performance bonds supporting obligations of Subsidiaries so long as, after giving effect to finance such letters of credit, surety bonds, Guarantees and performance bonds (and the acquisition of fixed or capital assetsInvestments represented thereby), whether pursuant to a loan or a Capitalized Lease provided that both at the time of Borrower would be in compliance with Section 5.16;
(vii) other Debt so long as (x) immediately before and immediately after giving effect to the incurrence and application of the proceeds thereof (i) no Default or Event of Default shall have occurred and be continuing, and (iiy) the aggregate amount of all if such Debt at any one time outstanding (includingis secured by a Lien on the Creditor Group Collateral on a first-lien basis, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings final scheduled maturity of such Debt shall in no event be on terms substantially or prior to the same Initial Term Loan Termination Date and (z) if such Debt is secured by a Lien on the Creditor Group Collateral on a first-lien basis, such Debt shall not have any scheduled amortization on or better than those prior to the Initial Term Loan Termination Date in effect at the time an aggregate amount in excess of 10% of the original incurrence initial amount of such Debt;
(dviii) Debt under incurred as a bridge financing for a proposed sale, transfer or other disposition of assets pursuant to Section 5.18(iv) with respect to assets acquired after June 23, 2005; provided that (w) the only direct or contingent obligor in respect of such Debt is the holder of the assets that are the subject of such sale, transfer or other disposition, (x) the interest rate applicable to such Debt does not exceed the then applicable market interest rate, (y) such Debt is repaid with the proceeds of such sale, transfer or other disposition upon consummation thereof and (z) such Debt was incurred in connection with the acquisition by the Borrower of the assets that are the subject of such sale, transfer or other disposition;
(ix) Debt incurred to refinance, replace or refund any Hedging Transactionsof the obligations arising in respect of the Existing Trust Preferred Securities, provided that (x) the only direct or contingent obligor in respect of such transaction Debt is entered into for risk management purposes the Borrower and not for speculative purposes;(y) the final scheduled maturity of such Debt shall be later than the Initial Term Loan Termination Date; and
(ex) Debt arising from judgments or decrees in an aggregate principal amount not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Partyexceed $500,000,000 at any one time outstanding, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt so long as immediately before and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence and application of the proceeds thereof (i) no Default or Event of Default shall have occurred and be continuing continuing; and
(b) in the case of the Borrower’s Subsidiaries:
(i) Guarantees of Debt of the Borrower under the Financing Documents, the Senior Secured Exchange Notes and Debt permitted by clause (a)(iii) or result therefrom (a)(vii) above, the proceeds of which are applied to permanently reduce Total Bank Exposure or prepay the Senior Secured Exchange Notes (it being understood that if, after the Effective Date, any Subsidiary Guarantees the Debt of the Borrower under the Financing Documents, such Subsidiary may also Guarantee the Senior Secured Exchange Notes and the Debt permitted by clause (a)(iii) or (a)(vii) above, the proceeds of which are applied to permanently reduce Total Bank Exposure or prepay the Senior Secured Exchange Notes);
(ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.incurred by a Subsidiary:
Appears in 2 contracts
Sources: Credit and Reimbursement Agreement (Aes Corp), Credit and Reimbursement Agreement (Aes Corp)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to the Agent and the Lenders under this Agreement and/or the other Loan Documentsor any Lender;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (Debt, provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)) without the prior written consent of Agent, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,0002,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Subordinated Debt;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under owing to trade creditors incurred in the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion ordinary course of the construction projects set forth on Schedule 8.1(i)business;
(i) Debt arising from the endorsement of instruments in the ordinary course of business;
(j) Performance bonds, surety bonds, and other indemnities or similar obligations issued in the ordinary course of business;
(k) Debt consisting of the financing of insurance premiums in the ordinary course of business.
(l) Debt in respect of netting services, overdraft protection, cash management obligations and similar arrangements entered into in the ordinary course of business;
(m) Debt that is otherwise permitted under Sections 8.7(d) and (e) hereof;
(n) Debt in respect of indemnification, purchase price adjustments, earnouts, deferred purchase price or other similar obligations incurred by the Borrower or any Credit Party in a Permitted Acquisition or similar investment or disposition under agreements which provide for indemnification, the adjustment of the purchase price or for similar adjustments; and
(o) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Accolade, Inc.), Credit Agreement (Accolade, Inc.)
Limitation on Debt. Create(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer in any manner become directly or indirectly liable with respect to exist or otherwise become responsible for, contingently or otherwise, the payment of (individually and collectively, to “incur” or, as appropriate, an “incurrence”), any Debt (including any Acquired Debt); provided, excepthowever, that:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Issuer shall be permitted to incur Debt shall not exceed (including Acquired Debt) if;
(A) after giving effect to the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing incurrence of such Debt shall and the application of the proceeds thereof, on a pro forma basis, no Default or Event of Default would occur or be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and continuing; and
(iiiB) at the time of such renewal or refinancing no Default or Event of Default has occurred incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Leverage Ratio for the Issuer and its Restricted Subsidiaries would be less than 3.5 to 1.0.
(b) This Section 4.06(a) shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default the incurrence by the Issuer or Event Invitel of Default shall have occurred and be continuing, and (ii) the revolving credit Debt under Credit Facilities in an aggregate principal amount of all such Debt at any one time outstanding not to exceed €18.0 million;
(ii) the incurrence by the Issuer of Debt pursuant to the Notes (other than Additional Notes) and the incurrence of Debt by any Subsidiary Guarantor pursuant to its Guarantee and Debt represented by the Security Documents, including with respect to such Debt, “parallel debt” obligations created under the Intercreditor Agreement and the Security Documents;
(iii) any Debt of the Issuer or any Restricted Subsidiary (other than Debt described in another clause of this Section 4.06(b)) outstanding on the Issue Date after giving effect to the use of proceeds of the offering of the Notes on the Issue Date;
(iv) the incurrence by the Issuer or any Restricted Subsidiary of intercompany Debt between the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that
(A) if the Issuer is the obligor on any such Debt, such Debt is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes upon any insolvency event;
(B) if a Subsidiary Guarantor is the obligor on any such Debt, such Debt is expressly subordinated to the prior payment in full in cash of all obligations of such obligor with respect to its Guarantee upon any insolvency event; and
(C) (I) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary) and (II) any transaction pursuant to which any Restricted Subsidiary that has Debt owing to the Issuer or another Restricted Subsidiary ceases to be a Restricted Subsidiary, shall, in each case, be deemed to be an incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Issuer’s Debt or Debt of any Restricted Subsidiary by any Restricted Subsidiary that are permitted by and made in accordance with the provisions of Section 4.13; provided that if the Debt being guaranteed is subordinate to or pari passu with the Notes or a Guarantee, then the Guarantee must be subordinated or ▇▇▇▇ ▇▇▇▇▇, as applicable, to the same extent as the Debt guaranteed;
(vi) guarantees of the Debt of any Restricted Subsidiary by the Issuer;
(vii) the incurrence by the Issuer or any Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Issuer or any Restricted Subsidiary of Debt incurred by any Person acquiring all or any portion of such assets for the purpose of financing such acquisition; provided that (A) the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (vii) shall at no time exceed the gross proceeds, including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received from the sale of such assets and (B) such Debt is not reflected in the balance sheet of the Issuer or any Restricted Subsidiary (contingent liabilities referred to in a footnote to financial statements and not otherwise reflected on the balance sheet shall not be deemed to be reflected on such balance sheet for purposes of this clause (B));
(viii) the incurrence by the Issuer or any Restricted Subsidiary of Debt under Currency Agreements not entered into for speculative purposes;
(ix) the incurrence by the Issuer or any Restricted Subsidiary of Debt under Interest Rate Agreements not entered into for speculative purposes;
(x) the incurrence of Debt by the Issuer or any Restricted Subsidiary in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(xi) the incurrence of Debt by the Issuer or any Restricted Subsidiary arising from (A) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within 5 Business Days of incurrence, (B) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations, or (C) completion guarantees provided or letters of credit obtained by the Issuer or any Restricted Subsidiary in the ordinary course of business;
(xii) the incurrence by the Issuer or any Restricted Subsidiary of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt incurred by it pursuant to, or described in, Section 4.06(a), (b)(ii) and (b)(iii), as the case may be;
(xiii) Acquired Debt of any Person outstanding on the date on which such Person becomes a Restricted Subsidiary or is merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Company or any Restricted Subsidiary; provided, however, with respect to this clause (xiii) that at the time of the acquisition or other transaction pursuant to which such Indebtedness was deemed to be incurred the Issuer would have been able to incur €1.00 of additional Indebtedness pursuant to the first paragraph of this covenant after giving effect to the incurrence of such Indebtedness pursuant to this clause (xiii);
(xiv) the incurrence by the Issuer or any Restricted Subsidiary of Indebtedness represented by Capitalized Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement of property, plant or equipment used in the business of the Issuer or any of its Restricted Subsidiaries, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (n), not to exceed €15.0 million at any time outstanding, and
(xv) the incurrence of Debt by the Issuer or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (i) through (xiv) above) in an aggregate principal amount at any one time outstanding not to exceed €25 million.
(c) For purposes of determining compliance with any restriction on the incurrence of Debt in euros where Debt is denominated in a different currency, the amount of such Debt shall be the Euro Equivalent determined on the date of such determination; provided that if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to euros) covering principal, premium, if any, and interest payable on such Debt, the amount of such Debt expressed in euros shall be adjusted to take into account the effect of such agreement. The principal amount of any Permitted Refinancing Debt incurred in the same currency as the Debt being refinanced shall be the Euro Equivalent of the Debt refinanced determined on the date such Debt being refinanced was initially incurred. Notwithstanding any other provision of this covenant, for purposes of determining compliance with this Section 4.06, increases in Debt solely due to fluctuations in the exchange rates of currencies shall not be deemed to exceed the maximum amount that the Issuer or any Restricted Subsidiary may incur under this Section 4.06.
(d) For purposes of determining any particular amount of Debt under this Section 4.06:
(i) obligations with respect to letters of credit, guarantees or Liens, in each case supporting Debt otherwise included in the determination of such particular amount shall not be included;
(ii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.10 shall not be treated as Debt; and
(iii) accrual of interest, accrual of dividends, the accretion of accreted value, the amortization of original issue discount, the obligation to pay commitment fees and the payment of regularly scheduled interest in the form of additional Debt of the same instrument or dividends on Redeemable Capital Stock or Preferred Stock of non-Guarantor Restricted Subsidiaries paid in additional shares of Redeemable Capital Stock or Preferred Stock, as the case may be, shall not be treated as Debt.
(e) In the event that an item of Debt meets the criteria of more than one of the types of Debt described in this Section 4.06, the Issuer, in its sole discretion, shall classify items of Debt and shall only be required to include the amount and type of such Debt in one of such clauses, and the Issuer shall be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 4.06, and may change the classification of an item of Debt (or any portion thereof) to any other type of Debt described in this Section 4.06 at any time.
(f) Neither the Issuer nor any Subsidiary Guarantor shall incur any Debt (including Permitted Debt) that is contractually subordinated in right of payment to any other Debt of the Issuer or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially identical terms; provided, however, that no Indebtedness shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Issuer or any Subsidiary Guarantor solely by virtue of being unsecured or by virtue of being secured on a junior priority basis.
(g) Notwithstanding anything to the contrary, in no event shall either (a) the Issuer or any of the Restricted Subsidiaries incur any Debt that is secured by a Lien on any of its assets or properties (including, without limitation, the Collateral) or (b) any Restricted Subsidiary that is not a Subsidiary Guarantor incur any Debt of unless, in either case, the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000Consolidated Secured Leverage Ratio for the Issuer and its Restricted Subsidiaries, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original such incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingand the application of the proceeds thereof, on a pro forma basis, would be less than 2.5 to 1.0.
Appears in 2 contracts
Sources: Indenture (Invitel Holdings a/S), Indenture (Invitel Holdings a/S)
Limitation on Debt. Create(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer to exist in any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals manner become directly or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect indirectly liable with respect to such Debt on or otherwise become responsible for, contingently or otherwise, the Effective Datepayment of (individually and collectively, and shall otherwise be in compliance with this Agreementto “incur” or, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) as appropriate, an “incurrence”), any Debt of Borrowers or (including any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease Acquired Debt); provided that both at the time of Issuer and immediately any Guarantor shall be permitted to incur Debt (including Acquired Debt) if in each case after giving effect to the incurrence thereof of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) This Section 4.06 shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default the incurrence by the Issuer or Event any Restricted Subsidiary of Default shall have occurred and be continuingDebt under Credit Facilities in an aggregate principal amount, and (ii) the aggregate amount of all such together with any Permitted Refinancing Debt thereof, at any one time outstanding not to exceed an aggregate principal amount (excluding any accrued or accreted interest thereon) equal to £125 million;
(ii) the Notes issued on the Issue Date and the Guarantees thereof;
(iii) any Debt of the Issuer or any Restricted Subsidiary (other than Debt described in clauses (i) or (ii) of this paragraph (b)) outstanding on the date of this Indenture;
(iv) the incurrence by the Issuer or any Restricted Subsidiary of Debt representing Capitalized Lease Obligations, mortgage financings or purchase money obligations incurred for the purpose of financing all or any part of the purchase price, lease expense, rental payments or cost of design, construction, installation or improvement of property, plant or equipment or other assets (including Capital Stock) used in the business of the Issuer or any of its Restricted Subsidiaries, in an aggregate principal amount, including all Permitted Refinancing Debt incurred or issued to renew, refund, refinance, replace, defease or discharge any Debt incurred pursuant to this clause, not to exceed at any time outstanding the greater of (i) £20.0 million and (ii) 20% of Consolidated EBITDA;
(v) the incurrence by the Issuer or any Restricted Subsidiary of intercompany Debt between the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that
(A) such debt is unsecured and the applicable creditor thereunder accedes to the Intercreditor Agreement as an Intra-group Lender;
(B) if the Issuer or a Guarantor is the obligor on any such Debt and the payee is not the Issuer or a Guarantor (except in respect of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Issuer and its Restricted Subsidiaries and only to the extent legally permitted), (x) unless required by a Credit Facility, such Debt is unsecured and (y) it is subordinated in right of payment to the Notes, in the case of the Issuer, and the Guarantees, in the case of a Guarantor, pursuant to the Intercreditor Agreement; and
(C) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Issuer or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an incurrence of such Debt not permitted by this clause (v);
(vi) the guarantee by the Issuer or any Restricted Subsidiary of Debt of the Issuer or any Restricted Subsidiary to the extent that the guaranteed Debt was permitted to be incurred by another provision of this covenant; provided that if the Debt being guaranteed is subordinated to or pari passu with the Notes or a Guarantee, then the guarantee must be subordinated or pari passu, as applicable to the same extent as the Debt guaranteed;
(vii) the incurrence by the Issuer or any Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Issuer or any Restricted Subsidiary of Debt incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofvii) shall not at no time exceed $5,000,000the gross proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(dviii) the incurrence by the Issuer or any Restricted Subsidiary of Debt under any Hedging Transactions, provided that such transaction is Obligations entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(eix) the incurrence by the Issuer or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(x) the incurrence by the Issuer or any Restricted Subsidiary of Debt arising from judgments (A) the honoring by a bank or decrees not deemed to be other financial institution of a Default check, draft or Event similar instrument inadvertently (except in the case of Default under subsection daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of incurrence, (gB) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations, (C) completion guarantees provided or letters of Section 9.1credit obtained by the Issuer or any Restricted Subsidiary in the ordinary course of business, (D) the financing of insurance premiums in the ordinary course of business, and (E) any customary cash management, cash pooling or netting or setting off arrangements;
(fxi) Debt owing of any Person incurred and outstanding on the date on which such Person becomes a Restricted Subsidiary of the Issuer or another Restricted Subsidiary or is merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Issuer or any Restricted Subsidiary (other than (A) Debt incurred (x) to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Person Restricted Subsidiary or was otherwise acquired by the Issuer or a Restricted Subsidiary or (y) otherwise in connection with or contemplation of such acquisition or (B) Debt that is a Credit Partyextinguished within three Business Days of incurrence); provided, but only however, with respect to the extent permitted under Section 8.7 hereof;
this clause (g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreementsxi), provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and such acquisition or other transaction, the Issuer could incur at least £1.00 of additional Debt pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth above or such Consolidated Fixed Charge Coverage Ratio would not be less than it was immediately after prior to giving pro forma effect to such acquisition or other transaction;
(xii) the incurrence thereof by the Issuer or any Restricted Subsidiary of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt incurred by it pursuant to, or described in, Section 4.06(a) and paragraphs (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and ), (ii) (iii), (iv) and (xi) of this Section 4.06(b), as the case may be;
(xiii) the incurrence of Debt of the Issuer and its Restricted Subsidiaries owed to their employees in connection with loan stock issued under employee stock purchase plans so long as the aggregate principal amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.£
Appears in 2 contracts
Sources: Indenture (T F Bell Holdings LTD), Indenture (Portishead Insurance Management LTD)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to the Agent and the Lenders under this Agreement and/or the other Loan Documentsor any Lender;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers the Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the in an aggregate amount of all such Debt outstanding at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not to exceed $5,000,000250,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Subordinated Debt;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;; and
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the in an aggregate amount of all such Debt shall not to exceed $1,000,000 at any one time outstanding50,000.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (GLAUKOS Corp), Revolving Credit and Term Loan Agreement (GLAUKOS Corp)
Limitation on Debt. CreateBorrower will not, incurand it will not cause or permit any Subsidiary to, assume incur or suffer to exist be obligated on any Debt, exceptDebt other than:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate Borrower’s Obligations;
(ii) unsecured trade accounts payable and other normal accruals incurred in the ordinary course of business which are not more than sixty (60) days past due (provided, however, that Borrower nor any Subsidiary shall be required to pay any such account payable or other accrual the payment of which is being contested in good faith and by appropriate proceedings being diligently conducted and for which adequate reserves in accordance with GAAP have been provided, except that Borrower or such Subsidiary, as the case may be, shall pay or cause to be paid all such accounts payable and accruals forthwith upon the commencement of proceedings to foreclose any Lien which is attached as security therefor, unless such foreclosure is stayed by the filing of an appropriate bond in a manner reasonably satisfactory to the Required Lenders);
(iii) Debt either existing as of the date of this Agreement listed on Schedule 4.10 attached hereto (and without giving effect to any amendment to Schedule 4.10 made by Borrower after the date of this Agreement as permitted by Section 4.10 of this Agreement) or as otherwise consented to in writing by the Required Lenders;
(iv) refundings, renewals or replacements of any Debt permitted under clauses (i) through (iii) above and any amendments to any of the foregoing, provided that any such refundings, renewals or replacements or amendment shall not increase the then outstanding principal amount of such renewed or refinanced Debt; and
(v) other Debt shall not otherwise permitted by this Section 5.02(a) in an amount not to exceed $5,000,000 in the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt for Borrower and all of the type described in this clause (c) which is set forth its Subsidiaries on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingcombined basis.
Appears in 2 contracts
Sources: Loan Agreement (Schiff Nutrition International, Inc.), Loan Agreement (Schiff Nutrition International, Inc.)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of The Issuer may not, and may not permit any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) Issuer Restricted Subsidiary to, directly or indirectly, Incur any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided Debt; provided, however, that (i) the aggregate principal amount of such renewed Issuer or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such any Issuer Restricted Subsidiary that is a Guarantor and a Loan Proceeds Note Guarantor may incur any Debt shall be on substantially the same or better terms as in if, after giving pro forma effect with respect to such Debt on Incurrence and the Effective Datereceipt and application of the net proceeds thereof, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred would occur as a consequence of such Incurrence or be continuing following such Incurrence and the Issuer Debt Ratio would be less than 5.75 to 1.0.
(b) Notwithstanding the foregoing limitation, the Issuer or any Issuer Restricted Subsidiary may Incur any and all of the following (each of which shall be given independent effect):
(i) Debt of the Issuer or any Issuer Restricted Subsidiary under the Securities issued on the Issue Date, any Note Guarantee in respect of the Securities issued on the Issue Date, the Loan Proceeds Note amended and restated in connection with the Securities issued on the Issue Date or any Loan Proceeds Note Guarantee in respect of the Loan Proceeds Note;
(ii) Debt of the Issuer or any Issuer Restricted Subsidiary under Credit Facilities in an aggregate principal amount outstanding or available (together with the amount of (x) outstanding Securities issued on the Issue Date and (y) all refinancing Debt outstanding or available pursuant to clause (vi) below in respect of the Securities issued on the Issue Date and Debt previously Incurred pursuant to this clause (ii) (other than any Additional Refinancing Amount)) at any one time not to exceed the greater of (x) $5.011 billion and (y) 4.0 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(iii) Debt of the Issuer or any Issuer Restricted Subsidiary outstanding on the Measurement Date;
(iv) Debt owed by (A) the Issuer to any Issuer Restricted Subsidiary, (B) any Issuer Restricted Subsidiary to the Issuer or any other Issuer Restricted Subsidiary, provided that in each case of clause (A) and (B), (x) upon the transfer, conveyance or other disposition by such Issuer Restricted Subsidiary or the Issuer of any Debt so permitted to a Person other than the Issuer or another Issuer Restricted Subsidiary or (y) if for any reason such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, the provisions of clause (A) or clause (B), as applicable, shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred by the issuer thereof at the time of such transfer, conveyance or other disposition or when such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, (C) the Issuer or any Issuer Restricted Subsidiary to Level 3 Parent in an aggregate principal amount, in the case of this clause (C), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available at any time outstanding; provided, however, that Level 3 Parent is continuing a Guarantor; or (D) the Issuer or any Issuer Restricted Subsidiary to any member of the CenturyLink Credit Group in an aggregate principal amount, in the case of this clause (D), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under this Indenture are available at any time outstanding; provided that, in the case of clauses (C) and (D) above, with respect to any such Debt of the Issuer, any Guarantor that is an Issuer Restricted Subsidiary or any Loan Proceeds Note Guarantor that is an Issuer Restricted Subsidiary, the payment obligation with respect to such Debt is expressly subordinated in any bankruptcy, liquidation or winding up proceeding of the obligor to the prior payment in full in cash of all obligations with respect to the Securities or the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, respectively;
(v) Debt Incurred by a Person prior to the time (A) such Person became an Issuer Restricted Subsidiary, (B) such Person merges into or consolidates with an Issuer Restricted Subsidiary or (C) an Issuer Restricted Subsidiary merges into or consolidates with such Person (in a transaction in which such Person becomes an Issuer Restricted Subsidiary), and Debt Incurred to finance any such transaction; provided, however, that after giving effect to the Incurrence of any Debt pursuant to this clause (v), either (1) the Issuer could Incur at least $1.00 of additional Debt pursuant to paragraph (a) of this Section 908 computed using “6.0 to 1.0” rather than “5.75 to 1.0” as it appears therein or (2) the ratio computed pursuant to paragraph (a) of this Section 908 would result from be no higher than before giving effect to the renewal or refinancing Incurrence of such Debt;
(cvi) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred to renew, extend, refinance, defease, repay, prepay, repurchase, redeem, retire, exchange or refund (each, a “refinancing”) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred pursuant to paragraph (a) of this ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇ (▇), (▇▇), (▇▇▇), (▇), (▇▇), (x) or (xi) of this paragraph (b) or this clause (vi), in an aggregate principal amount (or if issued at a discount, the then-Accreted Value) not to exceed the aggregate principal amount (or if issued at a discount, the then-Accreted Value) of and accrued interest on the Debt so refinanced plus any Additional Refinancing Amount; provided, however, that (A) if the Person that originally Incurred the Debt to be refinanced became, or would have been required to become if not already, a Guarantor or a Loan Proceeds Note Guarantor as a result of the Incurrence of the Debt being refinanced in accordance with this covenant, (1) the Person that Incurs the refinancing Debt pursuant to this clause (vi) (if not the Issuer) shall be a Guarantor or a Loan Proceeds Note Guarantor, as applicable, and (2) if the Debt to be refinanced is subordinated to the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, the refinancing Debt shall be subordinated to the same extent to the Loan Proceeds Note Guarantee of the Loan Proceeds Note Guarantor Incurring such refinancing Debt, (B) the refinancing Debt of the Issuer or any Guarantor shall not be senior in right of payment to the Debt that is being refinanced and (C) in the case of any refinancing of Debt Incurred pursuant to paragraph (a) of this Section 908 or clause (i), (v), (ix), (x) or (xi) or, if such Debt previously refinanced Debt Incurred pursuant to any such clause, this clause (vi), the refinancing Debt by its terms, or by the terms of any agreement or instrument pursuant to which such Debt is issued, (x) does not provide for payments of principal of such Debt at stated maturity or by way of a sinking fund applicable thereto or by way of any mandatory redemption, defeasance, retirement or repurchase thereof by the Issuer or any Issuer Restricted Subsidiary (including any redemption, retirement or repurchase which is contingent upon events or circumstances, but excluding any retirement required by virtue of the acceleration of any payment with respect to such Debt upon any event of default thereunder), in each case prior to earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities and (y) does not permit redemption or other retirement (including pursuant to an offer to purchase made by the Issuer or an Issuer Restricted Subsidiary) of such Debt at the option of the holder thereof prior to the earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities, other than, in the case of clause (x) or (y), (1) any such payment, redemption or other retirement (including pursuant to an offer to purchase made by the Issuer) which is conditioned upon a change of control or upon an asset sale and (2) any Debt in an aggregate principal amount not in excess of Borrowers the Maturity Limitation Excluded Amount;
(vii) Debt of the Issuer or any Issuer Restricted Subsidiary incurred to finance (A) in respect of performance, surety or appeal bonds, Guarantees, letters of credit or reimbursement obligations Incurred or provided in the acquisition ordinary course of fixed business securing the performance of contractual, franchise, lease, self-insurance or capital assetslicense obligations and not in connection with the Incurrence of Debt, whether (B) in respect of customary agreements providing for indemnification, adjustment of purchase price after closing, or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any such obligations of the Issuer or any Issuer Restricted Subsidiary pursuant to such agreements, Incurred in connection with the disposition of any business, assets or Issuer Restricted Subsidiary (other than Guarantees of Debt Incurred by any Person acquiring all or any portion of such business, assets or Issuer Restricted Subsidiary for the purpose of financing such acquisition) and in an aggregate principal amount not to exceed the gross proceeds actually received by the Issuer or any Issuer Restricted Subsidiary in connection with such disposition, (C) consisting of the financing of insurance premiums in the ordinary course of business, (D) consisting of take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business or (E) arising from the honoring by a loan bank or other financial institution of a Capitalized Lease check, draft or similar instrument drawn against insufficient funds in the ordinary course; provided that both at such Debt is extinguished promptly upon the time Issuer or such Issuer Restricted Subsidiary’s obtaining knowledge of and immediately after giving effect its occurrence;
(viii) Debt of the Issuer or any Issuer Restricted Subsidiary consisting of Permitted Hedging Agreements;
(1) Debt of any Foreign Restricted Subsidiary that is an Issuer Restricted Subsidiary or (2) Debt incurred on behalf of, or representing Guarantees of Debt of, Joint Ventures of the Issuer or any Issuer Restricted Subsidiary, not otherwise permitted to the incurrence thereof be Incurred pursuant to paragraph (a) of this Section 908 or clauses (i) no Default through (viii) above or Event of Default shall have occurred clause (x) below, which, together with any other outstanding Debt Incurred pursuant to this clause (ix) and be continuing, and (ii) the aggregate amount of all such refinancing Debt at any one time outstanding or available pursuant to clause (including, without limitation, any vi) above in respect of Debt of the type described in previously Incurred pursuant to this clause (cix) which is set forth on Schedule 8.1 hereof(other than any Additional Refinancing Amount), has an aggregate principal amount not to exceed the greater of (A) shall not exceed $5,000,000, 300,000,000 and any renewals or refinancings (B) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(a) Issue Date Purchase Money Debt initially Incurred by the Issuer or any Issuer Restricted Subsidiary or another Person that became an Issuer Restricted Subsidiary on terms substantially or before the Issue Date and (b) additional Purchase Money Debt Incurred by the Issuer or any Issuer Restricted Subsidiary; provided that, in the case of this clause (b), the amount of such Purchase Money Debt (together with the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of such Purchase Money Debt (other than any Additional Refinancing Amount)) does not exceed 100% of the cost of the construction, installation, acquisition, lease, development or improvement of the applicable assets acquired; and
(xi) Debt under the Existing Notes issued prior to the Issue Date.
(c) Notwithstanding any other provision of this Section 908, (A) the maximum amount of Debt the Issuer or any Issuer Restricted Subsidiary may Incur pursuant to this Section 908 shall not be deemed to be exceeded due solely to the result of fluctuations in the exchange rates of currencies and (B) accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt with the same or better than those terms, and the payment of dividends on Disqualified Stock in effect at the time form of additional shares of the original same class of Disqualified Stock shall not be deemed to be an incurrence of such Debt;Debt for purposes of this covenant.
(d) For purposes of determining any particular amount of Debt under this Section 908, (1) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (2) any Hedging TransactionsLiens granted for the benefit of the Securities pursuant to the provisions of Section 910 shall not be treated as Debt. For purposes of determining compliance with this Section 908, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e1) any Debt arising from judgments or decrees not deemed outstanding under the Existing Issuer Credit Facility will be treated as Incurred on the Issue Date pursuant to be a Default or Event of Default under subsection clause (gii) of paragraph (b) of this Section 9.1;
908 and (f2) in the event that an item of Debt owing meets the criteria of more than one of the types of Debt described in the above clauses, the Issuer, in its sole discretion, may divide and classify (and, subject to a Person that is a Credit Partyclause (1) above, but only to the extent permitted under Section 8.7 hereof;
(gmay later reclassify) the Comerica such item of Debt and only be required to include the Subordinated Debt;
(h) amount and type of such Debt arising under in one of such clauses. When classifying multiple Incurrences of Debt on the Surety Agreementssame day, provided that the Borrowers shall promptly terminate Issuer may, in its sole discretion, specify the Liberty Mutual Indemnity Agreement order of Incurrence of such Debt and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving need only give pro forma effect to the incurrence thereof specified Incurrence (iand any prior Incurrence) no Default or Event for purposes of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all classifying such Debt shall not exceed $1,000,000 at any one time outstandingspecified Incurrence.
Appears in 2 contracts
Sources: Indenture (Level 3 Parent, LLC), Indenture (Level 3 Parent, LLC)
Limitation on Debt. CreateThe Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness Debt of any Credit Party to Agent and the Lenders under this Agreement and/or Company in respect of the other Loan Documents;Notes.
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on Company to any Subsidiary of the Effective Date (less any principal payments Company that has executed and the amount delivered Security Documents and of any commitment reductions made thereon on such Subsidiary to the Company or prior to any other such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;Subsidiary.
(c) Debt outstanding as of June 30, 1998 as set forth on Schedule 5.16 hereto and any amendments or modifications thereof (but excluding any increase in the principal amount or interest on such Debt).
(d) Debt of Borrowers the Company or any of its Subsidiaries that was incurred by such Person on customary commercial trade terms to vendors, suppliers or other Persons providing services for use by such Person in the ordinary course of its business, unless and until such Debt is outstanding more than 60 days past the original due date therefor.
(e) Debt of the Company or any of its Subsidiaries for any deposit received by the Company or such Subsidiary incurred from any customer or client for services to finance be performed or goods sold by the acquisition of fixed Company or capital assetssuch Subsidiary, whether pursuant unless the Company or such Subsidiary for any reason becomes obligated to a loan or a Capitalized Lease provided that both at refund such deposit and the time of and immediately after giving effect to reimbursement obligation has been outstanding for more than 60 days from the incurrence thereof date such reimbursement obligation occurred.
(f) So long as (i) no Default or Event of Default shall have occurred and be continuingor event that with the lapse of time or the giving of notice, or both, would constitute an Event of Default, then exists or is continuing or would result therefrom and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred or event that with the lapse of time or the giving of notice, or both, would constitute an Event of Default, would exist after giving pro forma effect to the Debt to be incurred (including, without limitation, Defaults or Events of Default or under Section 5.6).
(A) Debt outstanding under the Company's Receivables Facility;
(B) Unsecured Debt of the Company and be continuing its Subsidiaries which, by its terms, is made expressly subordinate to the Debt of the Company under the Notes, provided that the Company may incur unsecured Debt which is subordinate to the Debt of the Notes without regard to any Default, Event of Default or result therefrom event that with the lapse of time or the giving of notice, or both, would constitute an Event of Default, under Section 5.6, in an amount equal to the difference between $11,000,000 and (ii) the aggregate amount of all the Notes that have been prepaid before the date on which such unsecured Debt is incurred under this provision;
(C) Debt of the Company and its Subsidiaries incurred to finance the acquisition of tangible Assets (whether pursuant to a loan, a lease financing or otherwise) after the date hereof provided that such Debt shall be limited to 100% of the cost of such Assets at the time such Assets were acquired.
(D) Debt of a corporation, limited liability company, partnership or other entity which becomes a Subsidiary of the Company after the date hereof as permitted hereunder, provided that such Debt existed at the time at the same time such entity became a Subsidiary and was not exceed $1,000,000 at any one time outstandingcreated within 180 days prior thereto or otherwise in anticipation thereof; and
(E) Debt of the Company with respect to letters of credit or applications or reimbursements therefor to support payment or performance obligations of the Company.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Intracel Corp), Securities Purchase Agreement (Intracel Corp)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Company shall not, and shall not permit any Subsidiary of the Company to, Issue, directly or indirectly, any Credit Party Debt; provided, however, that the Company and its Subsidiaries shall be permitted to Agent and Issue Debt if, at the Lenders under this Agreement and/or time of such Issuance, the other Loan Documents;Consolidated EBITDA Coverage Ratio for the period of the most recently completed four consecutive fiscal quarters ending at least 45 days prior to the date such Debt is Issued exceeds the ratio of 2.0 to 1.0.
(b) Notwithstanding the foregoing, the Company and its Subsidiaries may Issue the following Debt:
(1) Debt Issued pursuant to the Credit Agreement and the Securities, any Debt existing on the Effective Date and set forth Refinancing thereof, or any other credit agreement, indenture or other agreement, in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the an aggregate principal amount outstanding at any one time not to exceed an amount equal to $675 million less the sum of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any all principal payments and the amount of any commitment reductions (whether by prepayment, repayment or purchase) made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on pursuant to Section 4.07(a)(iii)(A), (a)(iii)(B)(1) or (a)(iii)(C) to the Effective Dateextent that such payments (i) are as a result of an Asset Disposition involving assets that are included in the Collateral, and shall otherwise be or are owned, directly or indirectly, by a Foreign Subsidiary the stock of which is included in compliance with this Agreementthe Collateral, and (iiiii) at permanently retire such Debt in accordance with the time terms of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of agreements governing such Debt;
(c2) Debt Issued on an unsecured basis pursuant to any other credit agreement, indenture or other agreement in an aggregate principal amount not to exceed $225 million outstanding at any one time;
(3) Debt (other than Debt described in clauses (1) and (2) above) in respect of Borrowers the undrawn portion of the face amount of or unpaid reimbursement obligations in respect of letters of credit for the account of the Company or any Subsidiary incurred of its Subsidiaries in an aggregate amount at any time outstanding not to finance exceed the acquisition excess of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and $150 million over (ii) the aggregate undrawn portion of the face amount of all such Debt at or unpaid reimbursement obligations in respect of letters of credit Issued under the Credit Agreement or any one time outstanding Refinancing thereof or any other credit agreement, indenture or other agreement pursuant to clause (including, without limitation, any 1) above;
(4) Debt of the type described Company Issued to and held by a Wholly Owned Recourse Subsidiary of the Company and Debt of a Subsidiary of the Company Issued to and held by the Company or a Wholly Owned Recourse Subsidiary; provided, however, that any subsequent Issuance or transfer of any Capital Stock that results in any such Wholly Owned Recourse Subsidiary ceasing to be a Wholly Owned Recourse Subsidiary or any subsequent transfer of such Debt (other than to the Company or a Wholly Owned Recourse Subsidiary) shall be deemed, in each case, to constitute the Issuance of such Debt by the Company or of such Debt by such Subsidiary;
(5) Debt of the Company consisting of the Existing 9% Senior Securities, the Existing 8-1/8% Senior Securities, the Existing Senior Subordinated Securities and Debt of the Company Issued to Refinance any Debt permitted by this clause (c5); provided, however, that, in the case of a Refinancing, the principal amount of the Debt so Issued shall not exceed the principal amount of the Debt so Refinanced plus any Refinancing Costs thereof; provided further, however, that any Debt Issued pursuant to this clause (5) which is to Refinance the Existing Senior Subordinated Securities or any Refinancing thereof shall be subordinated to the Securities to at least the same extent as the Existing Senior Subordinated Securities are subordinated to the Securities;
(6) Debt (other than Debt described in clause (1), (2), (3), (4) or (5) above or (11) or (12) below) of the Company or any of its Subsidiaries outstanding on the Issue Date, as set forth on Schedule 8.1 hereofIII hereto, and Debt Issued to Refinance any Debt permitted by this clause (6) or by Section 4.03(a); provided, however, that, in the case of a Refinancing, the principal amount of the Debt so Issued shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time principal amount of the original incurrence of such DebtDebt so Refinanced plus any Refinancing Costs thereof;
(d7) Debt under Issued and arising out of purchase money obligations for property acquired in an amount not to exceed, for the period through December 31, 2002, $50 million, plus for each period of twelve consecutive months ending on December 31 thereafter, $15 million; provided, however, that any Hedging Transactions, provided that such transaction is entered into for risk management purposes amounts which are available to be utilized during any such twelve month period and are not for speculative purposesso utilized may be utilized during any succeeding period;
(e) 8) Debt arising from judgments of a Subsidiary of the Company Issued and outstanding on or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only prior to the extent permitted under Section 8.7 hereof;
date on which such Subsidiary was acquired by the Company (g) the Comerica other than Debt and the Subordinated Debt;
(h) Debt arising under the Surety AgreementsIssued as consideration in, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and or to provide all or any other Bond Documents related thereto following the completion portion of the construction projects set forth on Schedule 8.1(ifunds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary of the Company or was acquired by the Company);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto to the Disclosure Letter and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers Borrower or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereofto the Disclosure Letter) shall not exceed $5,000,00010,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Subordinated Debt;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(gh) Debt incurred under Seller Notes (including any Seller Notes listed in Schedule 8.1 to the Comerica Debt and Disclosure Letter) not to exceed Thirty Million Dollars ($30,000,000) in the Subordinated Debtaggregate during the term of this Agreement;
(hi) Guaranty Obligations of Indebtedness otherwise permitted hereunder of any Credit Party and Guaranties in the ordinary course of business of the obligations of suppliers, customers and licensees of any Credit Party;
(j) Debt arising under of Foreign Subsidiaries not to exceed $2,500,000 in the Surety Agreementsaggregate;
(k) Debt relating to premium financing arrangements for property and casualty insurance plans and health and welfare benefit plans (including health and workers compensation insurance, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement employment practices liability insurance and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(idirectors and officers insurance);
(il) Debt relating to tenant improvement loans and real estate commissions in an amount not exceeding $2,500,000 in the aggregate;
(m) Debt in respect of performance bonds securing obligations not constituting Debt for borrowed money (including worker’s compensation claims, health benefits and local, state and federal payroll taxes) and obligations in connection with self-insurance or similar requirements, in each case provided in the ordinary course of business;
(n) third-party indebtedness assumed pursuant to a Permitted Acquisition completed in compliance with this Agreement of a type which is permitted under this Agreement (except as a result of giving effect to a Dollar limitation contained in this Section 8.1) in an amount not exceeding $5,000,000 in the aggregate;
(o) non-recourse Debt with a maturity of less than 15 days incurred in connection with a Permitted Acquisition with respect to which an I.R.C. Section 338(h) election has been made; provided that no such Debt shall be permitted following the initial maturity date of such Debt; and
(p) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 10,000,000 at any one time outstanding.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Quinstreet, Inc)
Limitation on Debt. CreateThe Company will not, incurat any time, assume or suffer to exist any Debt, except:
permit Subsidiary Debt (a) including Indebtedness of a Subsidiary under any Credit Party HGI Facility) to Agent and exceed an amount equal to 20% of Consolidated Total Net Worth as of the Lenders under this Agreement and/or end of the other Loan Documents;
(b) any Debt existing on then most recently ended fiscal quarter of the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (Company; provided that in no event shall the amount of Subsidiary Debt permitted pursuant to this Section 10.3 at any time exceed the amount of Subsidiary Debt then permitted to be outstanding under the Credit Agreement (without giving effect to any amendment or waiver thereof entered into after the occurrence and during the continuance of a Default or Event of Default). The Company will not at any time, permit the incurrence of any Indebtedness unless (i) the aggregate principal amount Consolidated Debt to Capitalization Ratio as of the most recently ended fiscal quarter prior to the incurrence of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding Indebtedness, calculated on a pro forma basis, after giving effect to such incurrence as if such incurrence had occurred on the Effective Date (less any principal payments and the amount first day of any commitment reductions made thereon on or prior such fiscal quarter, shall be no greater than 0.60 to such renewal or refinancing)1.00, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of immediately before and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred such Indebtedness and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt use of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000proceeds thereof, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (iiiii) solely in connection with any Indebtedness used to refinance a portion (but less than all) of the aggregate amount of all Notes, such Debt Indebtedness shall not exceed $1,000,000 at any one time outstandinghave terms, other than pricing, more favorable to the providers of such Indebtedness than the terms of this Agreement unless consented to by the Required Holders.
Section 1.6 Section 10.15 of the Note Purchase Agreement shall be amended and restated in its entirety to read as follows:
Appears in 1 contract
Sources: Note Purchase Agreement (Essential Utilities, Inc.)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, Incur any Debt (including Acquired Debt), except that the Company, the Co-Issuer or a Subsidiary Guarantor may Incur Debt (including Acquired Debt) if after giving effect to the Incurrence of any Credit Party to Agent such Debt and the Lenders under this Agreement and/or application of the other Loan Documents;proceeds thereof, (A) the Consolidated Interest Coverage Ratio would be greater than 2.00 to 1.00 and (B) no Default or Event of Default would occur as a consequence of such Incurrence or be continuing following such Incurrence.
(b) The restrictions in clause (a) of this Section 4.09 shall not apply to (each of the following, "Permitted Debt"):
(A) Debt of the Company or the Co-Issuer evidenced by the Notes and the Exchange Notes issued in exchange for the Notes and (B) Debt of the Subsidiary Guarantors evidenced by the Subsidiary Guarantees relating to the Notes and the Exchange Notes;
(ii) Debt of the Company, the Co-Issuer or a Subsidiary Guarantor under Credit Facilities (including the Senior Credit Facility); provided that, after giving effect to any such Incurrence, the aggregate principal amount of all Debt existing on Incurred pursuant to this clause (ii) and then outstanding shall not exceed the Effective Date greater of (A) $400 million, which amount shall be permanently reduced by the amount of Net Available Cash used to Repay Debt under any such Credit Facilities, pursuant to Section 4.12 hereof, and set forth (B) the Borrowing Base;
(iii) Debt of the Company or a Restricted Subsidiary in Schedule 8.1 attached hereto respect of Capital Lease Obligations and any renewals or refinancing of such Debt Purchase Money Debt, provided that:
(provided that (iA) the aggregate principal amount of such renewed or refinanced Debt shall does not exceed the Fair Market Value (on the date of the Incurrence thereof) of the Property acquired, constructed or leased, and
(B) the aggregate principal amount of all Debt Incurred and then outstanding pursuant to this clause (iii) (together with all Permitted Refinancing Debt Incurred and then outstanding in respect of Debt previously Incurred pursuant to this clause (iii)) does not exceed $50 million;
(iv) Debt of the original Company owing to and held by any Wholly Owned Restricted Subsidiary and Debt outstanding on of a Restricted Subsidiary owing to and held by the Effective Date (less Company or any principal payments and the amount Wholly Owned Restricted Subsidiary; provided, however, that any subsequent issue or transfer of Capital Stock or other event that results in any such Wholly Owned Restricted Subsidiary ceasing to be a Wholly Owned Restricted Subsidiary or any subsequent transfer of any commitment reductions made thereon on such Debt (except to the Company or prior a Wholly Owned Restricted Subsidiary) shall be deemed, in each case, to such renewal or refinancing), (ii) constitute the renewal or refinancing Incurrence of such Debt shall by the issuer thereof; provided, further, however, that if the Company, the Co-Issuer or any Subsidiary Guarantor is the obligor on such Debt and the payee is not the Company, the Co-Issuer or a Subsidiary Guarantor, such Debt must be on substantially expressly subordinated to the same or better terms as prior payment in effect full in cash of all Obligations then due with respect to such Debt on the Effective DateNotes, and shall otherwise be in compliance with this Agreementthe case of the Company or the Co-Issuer, and (iii) at or the time Subsidiary Guarantee, in the case of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debta Subsidiary Guarantor;
(cv) any Debt of Borrowers or any Subsidiary incurred to finance under Interest Rate Agreements entered into by the acquisition of fixed or capital assets, whether pursuant to a loan Company or a Capitalized Lease Restricted Subsidiary for the purpose of limiting interest rate risk in the ordinary course of the financial management of the Company or such Restricted Subsidiary and not for speculative purposes; provided that both at the time of and immediately after giving effect obligations under such agreements are directly related to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such payment obligations on Debt at any one time outstanding (including, without limitation, any Debt of the type described in otherwise permitted by this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such DebtSection 4.09;
(dvi) Debt under any Hedging Transactions, provided that such transaction is Currency Exchange Protection Agreements entered into by the Company or a Restricted Subsidiary for risk management purposes the purpose of limiting currency exchange rate risks directly related to transactions entered into by the Company or such Restricted Subsidiary in the ordinary course of business and not for speculative purposes;
(evii) Debt arising from judgments of a Restricted Subsidiary outstanding on the date on which such Restricted Subsidiary was acquired by the Company or decrees not deemed otherwise became a Restricted Subsidiary (other than Debt Incurred as consideration in, or to be provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of transactions pursuant to which such Restricted Subsidiary became a Default Subsidiary of the Company or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to was otherwise acquired by the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, Company); provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of such Restricted Subsidiary was acquired by the Company or otherwise became a Restricted Subsidiary and immediately after giving effect to the incurrence thereof Incurrence of such Debt, the Company would have been able to Incur $1.00 of additional Debt pursuant to clause (ia) no Default of this Section 4.09;
(viii) Debt of the Company or Event a Restricted Subsidiary outstanding on the Issue Date;
(ix) Debt arising from agreements of Default shall have occurred and be continuing the Company or result therefrom and a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with the disposition of any business, assets or Capital Stock of the Company or any Restricted Subsidiary; provided, that (iiA) the maximum aggregate amount liability in respect of all such Debt shall at no time exceed the gross proceeds including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Company and its Subsidiaries in connection with such disposition and (B) such Debt is not exceed $1,000,000 reflected on the balance sheet of the Company or any Restricted Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this Section 4.09(b)(ix));
(x) the Incurrence by the Company or any of its Restricted Subsidiaries of Debt in respect of workers' compensation claims, payment obligations in connection with health or other types of social security benefits, unemployment or other insurance or self-insurance obligations, reclamation, statutory obligations, bankers' acceptances, performance, surety or similar bonds and letters of credit or completion or performance guarantees, or other similar obligations in the ordinary course of business or consistent with past practice;
(xi) the Incurrence by the Company or any of its Restricted Subsidiaries of Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds;
(xii) Debt of the Company or any Subsidiary Guarantor (not including Debt under Section 4.09(b)(viii) above) in an aggregate principal amount outstanding at any one time outstandingnot to exceed $100 million;
(xiii) the Guarantee by the Company, the Co-Issuer or any Subsidiary Guarantor of Debt of the Company or any Restricted Subsidiary, so long as in each case such Debt was Incurred pursuant to another provision of this covenant and is otherwise permitted under this Indenture;
(xiv) the Incurrence of Debt by Foreign Restricted Subsidiaries in an aggregate principal amount outstanding at any one time not to exceed $50.0 million
(xv) the Guarantee by any Restricted Subsidiary that is not the Co-Issuer or a Subsidiary Guarantor of Debt of the Company or any Restricted Subsidiary, so long as in each case such Debt was Incurred pursuant to another provision of this Section 4.09(b) and the requirements of Section 4.17 hereof are met; and
(xvi) Permitted Refinancing Debt Incurred in respect of Debt Incurred pursuant to clause (a) and clauses (b)(i), (vii) and (viii) of this Section 4.09.
(c) Notwithstanding anything to the contrary contained in this Section 4.09,
(i) the Company shall not, and shall not permit any Restricted Subsidiary to, Incur any Debt that is subordinated by its terms to any other Debt of the Company or any Restricted Subsidiary unless such Debt is subordinated by its terms to the Notes to at least the same extent and for so long as it is subordinated to such other Debt;
(ii) the Company or the Co-Issuer shall not, and shall not permit any Subsidiary Guarantor of the Notes to, Incur any Debt pursuant to this Section 4.09 if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Obligations unless such Debt shall be subordinated to the Notes or any Subsidiary Guarantee of the Notes by such Subsidiary Guarantor to at least the same extent as such Subordinated Obligations;
(iii) the Company shall not permit any Restricted Subsidiary that is not the Co-Issuer or a Subsidiary Guarantor to Incur any Debt pursuant to this Section 4.09 if the proceeds thereof are used, directly or indirectly, to Refinance any Debt of the Company, the Co-Issuer or any Subsidiary Guarantor; and
(iv) accrual of interest, fees, expenses, charges, premiums and additional or contingent interest on Permitted Debt, accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Debt will not be deemed to be an Incurrence of Debt for purposes of this Section 4.09.
(d) For purposes of determining compliance with this Section 4.09, in the event that an item of Debt meets the criteria for Permitted Debt under more than one of the categories of Debt described in clauses (b)(i) through (xvii) above or is entitled to be Incurred pursuant to clause (a) of this Section 4.09, the Company shall, in its sole discretion, classify (or later reclassify, in whole or in part, in its sole discretion) such item of Debt in any manner that complies with this Section 4.09, provided that all outstanding Debt under the Senior Credit Facility at the Issue Date shall be deemed to have been Incurred pursuant to clause (b)(ii) of this Section 4.09.
(e) Debt permitted by this Section 4.09 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.09 permitting such Debt.
(f) For purposes of determining any particular amount of Debt under this Section 4.09, Guarantees, Liens, obligations with respect to letters of credit and other obligations supporting Debt otherwise included in the determination of a particular amount will not be included.
(g) For purposes of determining compliance with any dollar-denominated restriction on the Incurrence of Debt, with respect to any Debt which is denominated in a foreign currency, the dollar-equivalent principal amount of such Debt Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Debt was Incurred, and any such foreign denominated Debt may be Refinanced or subsequently Refinanced in an amount equal to the dollar-equivalent principal amount of such Debt on the date of such Refinancing whether or not such amount is greater or less than the dollar-equivalent principal amount of the Debt on the date of initial Incurrence.
Appears in 1 contract
Sources: Indenture (Gamestop Corp)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, create, issue, Incur, assume, guarantee or in any manner become directly or indirectly liable with respect to or otherwise become responsible for, contingently or otherwise, the payment of any Credit Party (individually and collectively, to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) “Incur” or, as appropriate, an “Incurrence”), any Debt existing on (including any Acquired Debt); provided that the Effective Date and set forth in Schedule 8.1 attached hereto Parent Guarantor, each Issuer and any renewals or refinancing Restricted Subsidiary shall be permitted to Incur Debt (including Acquired Debt) if in each case (i) after giving effect to the Incurrence of such Debt (provided that (i) and the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount application of the original Debt outstanding proceeds thereof, on the Effective Date (less any principal payments a pro forma basis, no Default or Event of Default would occur or be continuing and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred Incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) This covenant shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default the Notes and the New Unsecured Notes issued on the Issue Date;
(ii) the Incurrence by the Parent Guarantor or Event any Restricted Subsidiary of Default shall have occurred and be continuing, Debt under Credit Facilities in an aggregate principal amount not to exceed the greater of (i) €350,000,000 and (ii) an amount equal to (I) 85% of Total Receivables plus 60% of Total Inventories less (II) €250,000,000;
(iii) any Existing Debt of the Parent Guarantor or any Restricted Subsidiary (other than Debt described in clauses (i) and (ii) of this paragraph (b));
(iv) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of intercompany Debt between the Parent Guarantor and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that:
(A) if an Issuer or a Guarantor is the obligor on any such Debt, unless required by a Credit Facility and only to the extent legally permitted, such Debt must be unsecured (except in respect of the intercompany current liabilities Incurred in the ordinary course of business in connection with the cash management operations of the Parent Guarantor and its Restricted Subsidiaries); and
(B) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Parent Guarantor or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Parent Guarantor or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Parent Guarantor’s Debt or Debt of any Restricted Subsidiary by any Restricted Subsidiary that are permitted by and made in accordance with the provisions of Section 4.15;
(vi) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property, plant, equipment or other assets used in the Parent Guarantor’s or any Restricted Subsidiary’s business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (vi) and still outstanding shall not in the aggregate exceed the greater of €100,000,000 and 3.00% of Total Assets; and provided, further, that the total principal amount of all any Debt Incurred in connection with an acquisition or development permitted under this clause (vi) did not in each case at the time of Incurrence exceed (A) the Fair Market Value of the acquired or constructed asset or improvement so financed or (B) in the case of an uncompleted constructed asset, the amount of the asset to be constructed, as determined on the date the contract for construction of such asset was entered into by the Parent Guarantor or the relevant Restricted Subsidiary (including, in each case, any reasonable related fees and expenses Incurred in connection with such acquisition, construction or development);
(vii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt at any one time outstanding (arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Parent Guarantor or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofvii) shall not at no time exceed $5,000,000the net proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(dviii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under any Commodity Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(eix) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under Currency Agreements entered into in the ordinary course of business and not for speculative purposes;
(x) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under Interest Rate Agreements entered into in the ordinary course of business and not for speculative purposes;
(xi) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(xii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary arising from judgments (A) the honoring by a bank or decrees other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of Incurrence, (B) bankers’ acceptances, performance, surety, judgment, completion, payment, appeal or similar bonds, instruments or obligations, (C) completion guarantees, advance payment, customs, VAT or other tax guarantees or similar instruments provided or letters of credit obtained by the Parent Guarantor or any Restricted Subsidiary in the ordinary course of business, and (D) the financing of insurance premiums in the ordinary course of business;
(xiii) any Debt of the Parent Guarantor or any Restricted Subsidiary Incurred pursuant to the GE Commercial Finance Facility or any other Permitted Receivables Financing in an aggregate principal amount at any one time outstanding not to exceed €45,000,000;
(xiv) the Incurrence by a Person of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in, paragraphs (a), (b)(i) and (b)(iii) of this Section 4.06, as the case may be;
(xv) guarantees by the Parent Guarantor or a Restricted Subsidiary of Debt Incurred by Permitted Joint Ventures in an aggregate principal amount at any one time outstanding not to exceed an amount equal to €50,000,000;
(xvi) cash management obligations and Debt in respect of netting services, pooling arrangements or similar arrangements in connection with cash management in the ordinary course of business consistent with past practice;
(xvii) take-or-pay obligations and customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business; and
(xviii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (i) through (xvii) above) in an aggregate principal amount at any one time outstanding not to exceed €175,000,000.
(c) Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Debt of the same class will not be deemed to be an Incurrence of Debt for purposes of this Section 4.06.
(d) For purposes of determining compliance with any restriction on the Incurrence of Debt in euros where Debt is denominated in a Default different currency, the amount of such Debt will be the Euro Equivalent determined on the date of such determination; provided that if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to euros) covering principal amounts payable on such Debt, the amount of such Debt expressed in euros shall be adjusted to take into account the effect of such agreement. The principal amount of any Permitted Refinancing Debt Incurred in the same currency as the Debt being refinanced shall be the Euro Equivalent of the Debt refinanced determined on the date such Debt being refinanced was initially Incurred. Notwithstanding any other provision of this Section 4.06, for purposes of determining compliance with this Section 4.06, increases in Debt solely due to fluctuations in the exchange rates of currencies will not be deemed to exceed the maximum amount that an Issuer, the Parent Guarantor or Event a Subsidiary Guarantor may Incur under this Section 4.06.
(e) For purposes of Default determining any particular amount of Debt under subsection this Section 4.06:
(gi) obligations with respect to letters of credit, guarantees or Liens, in each case supporting Debt otherwise included in the determination of such particular amount shall not be included;
(ii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 9.14.07 shall not be treated as Debt;
(iii) accrual of interest, accrual of dividends, the accretion of accreted value, the obligation to pay commitment fees and the payment of interest in the form of additional preferred stock or Debt shall not be treated as Debt; and
(iv) the reclassification of preferred stock as Debt due to a change in accounting principles shall not be treated as Debt.
(f) In the event that an item of Debt owing meets the criteria of more than one of the types of Debt described in this Section 4.06, the Parent Guarantor, in its sole discretion, shall classify items of Debt and shall only be required to a Person that is a Credit Partyinclude the amount and type of such Debt in one of such clauses and the Parent Guarantor shall be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 4.06, but only and may change the classification of an item of Debt (or any portion thereof) to the extent permitted under any other type of Debt described in this Section 8.7 hereof;4.06 at any time.
(g) the Comerica The amount of any Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and outstanding as of any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);date will be:
(i) additional unsecured in the case of any Debt not otherwise described aboveissued with original issue discount, provided that both at the time amount of and immediately after giving effect to the incurrence liability in respect thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and determined in accordance with IFRS;
(ii) the aggregate principal amount of all the Debt, in the case of any other Debt; and
(iii) in respect of Debt of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Debt shall not exceed $1,000,000 at any one time outstandingof the other Person.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to the Agent and the Lenders under this Agreement and/or the other Loan Documentsor any Lender;
(b) any Debt existing on the Sixth Amendment Effective Date and set forth in Schedule 8.1 7.1 attached hereto and any renewals or refinancing of such Permitted Refinancing Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers the Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, or any Permitted Refinancing Debt thereof, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) other than in the case of a refinancing, such Debt is incurred within 180 days of the acquisition thereof and (iii) the aggregate principal amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof7.1 hereto) shall not exceed the amount equal to $5,000,000, and any renewals or refinancings 30,000,000 minus the aggregate principal amount of all then outstanding Term Loan C;
(d) the Debt of the Credit Parties under the Senior Loan Documents in the aggregate principal amount not to exceed the Senior Debt Cap (as defined in the Specified Subordination Agreement)$30,000,000 so long as such Debt on terms substantially the same or better than those in effect at the time and all other obligations of the original incurrence of such Credit Parties in connection therewith are subject to the Specified Subordination Agreement;
(e) Subordinated Debt;
(df) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(eg) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.18.1(g);
(fh) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g7.6(d) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(ior 7.6(m);
(i) Debt incurred in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards (including so-called “procurement cards” or “P-cards”) or other similar cash management services, in each case, incurred in the ordinary course of business;
(j) reimbursement obligations with respect to Cash Secured L/Cs; provided, that the aggregate face amount of all Cash Secured L/Cs shall not exceed $18,000,000 at any time; and
(k) additional unsecured Debt not otherwise described abovepermitted under this Section 7.1, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 7,500,000 at any one time outstanding.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to the Agent and the Lenders under this Agreement and/or the other Loan Documentsor any Lender;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) ; any Debt of Borrowers the Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,00075,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(c) Subordinated Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;; and
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Montauk Renewables, Inc.)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, create, issue, Incur, assume, guarantee or in any manner become directly or indirectly liable with respect to or otherwise become responsible for, contingently or otherwise, the payment of any Credit Party (individually and collectively, to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) “Incur” or, as appropriate, an “Incurrence”), any Debt existing on (including any Acquired Debt); provided that the Effective Date and set forth in Schedule 8.1 attached hereto Parent Guarantor, each Issuer and any renewals or refinancing Restricted Subsidiary shall be permitted to Incur Debt (including Acquired Debt) if in each case (i) after giving effect to the Incurrence of such Debt (provided that (i) and the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount application of the original Debt outstanding proceeds thereof, on the Effective Date (less any principal payments a pro forma basis, no Default or Event of Default would occur or be continuing and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred Incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) Section 4.06(a) shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default the Notes issued on the Issue Date;
(ii) the Incurrence by the Parent Guarantor or Event any Restricted Subsidiary of Default shall have occurred and be continuing, Debt under Credit Facilities in an aggregate principal amount not to exceed the greater of (i) €350,000,000 and (ii) an amount equal to (I) 85% of Total Receivables plus 60% of Total Inventories less (II) €250,000,000;
(iii) any Existing Debt of the Parent Guarantor or any Restricted Subsidiary (other than Debt described in clauses (i) and (ii) of this Section 4.06(b));
(iv) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of intercompany Debt between the Parent Guarantor and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that:
(A) if an Issuer or a Guarantor is the obligor on any such Debt, unless required by a Credit Facility and only to the extent legally permitted, such Debt must be unsecured (except in respect of the intercompany current liabilities Incurred in the ordinary course of business in connection with cash management, cash pooling, tax and accounting operations of the Parent Guarantor and its Restricted Subsidiaries); and
(B) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Parent Guarantor or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Parent Guarantor or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Parent Guarantor or any Restricted Subsidiary of Debt of the Parent Guarantor or any Restricted Subsidiary to the extent that the guaranteed Debt was permitted to be incurred by another provision of this Section 4.06;
(vi) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property, plant, equipment or other assets used in the Parent Guarantor’s or any Restricted Subsidiary’s business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (vi) and still outstanding shall not in the aggregate exceed the greater of €150,000,000 and 2.0% of Total Assets; and provided, further, that the total principal amount of all any Debt Incurred in connection with an acquisition or development permitted under this clause (vi) did not in each case at the time of Incurrence exceed (A) the Fair Market Value of the acquired or constructed asset or improvement so financed or (B) in the case of an uncompleted constructed asset, the amount of the asset to be constructed, as determined on the date the contract for construction of such asset was entered into by the Parent Guarantor or the relevant Restricted Subsidiary (including, in each case, any reasonable related fees and expenses Incurred in connection with such acquisition, construction or development);
(vii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt at any one time outstanding (arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock (other than guarantees or similar credit support given by the Parent Guarantor or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition); provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofvii) shall not at no time exceed $5,000,000the net proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(dviii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under any Commodity Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(eix) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt arising from judgments or decrees under Currency Agreements entered into in the ordinary course of business and not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(fx) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt owing to a Person that is a Credit Party, but only to under Interest Rate Agreements entered into in the extent permitted under Section 8.7 hereofordinary course of business and not for speculative purposes;
(gxi) the Comerica Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the Subordinated Debtborrowing of money or the obtaining of advances or credit;
(hxii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary arising under from (A) the Surety Agreementshonoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of Incurrence, (B) bankers’ acceptances, performance, surety, judgment, completion, payment, appeal or similar bonds, instruments or obligations, (C) completion guarantees, advance payment, customs, VAT or other tax guarantees or similar instruments provided or letters of credit obtained by the Borrowers shall promptly terminate Parent Guarantor or any Restricted Subsidiary in the Liberty Mutual Indemnity Agreement ordinary course of business, and (D) the financing of insurance premiums in the ordinary course of business;
(xiii) any other Bond Documents related thereto following the completion Debt of the construction projects set forth on Schedule 8.1(iParent Guarantor or any Restricted Subsidiary Incurred pursuant to any Permitted Receivables Financing;
(xiv) the Incurrence by a Person of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in, Section 4.06(a), sub-clauses (i) and (iii), this sub-clause (xiv) and sub-clauses (xviii), (xix) and (xx) of this Section 4.06(b), as the case may be;
(xv) guarantees by the Parent Guarantor or a Restricted Subsidiary of Debt Incurred by Permitted Joint Ventures in an aggregate principal amount at any one time outstanding not to exceed an amount equal to the greater of €75,000,000 and 1.0% of Total Assets;
(xvi) cash management obligations and Debt in respect of netting services, pooling arrangements or similar arrangements in connection with cash management in the ordinary course of business consistent with past practice;
(i) additional unsecured take-or-pay obligations in the ordinary course of business, (ii) customer deposits and advance payments in the ordinary course of business received from customers for goods or services purchased in the ordinary course of business and (iii) manufacturer, vendor financing, customer and supply arrangements in the ordinary course of business;
(xviii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (i) through (xvii) above and clauses (xix) and (xx) below) in an aggregate principal amount at any one time outstanding not to exceed, together with any Permitted Refinancing Debt in respect thereof, the greater of €265,000,000 and 3.5% of Total Assets;
(xix) Debt of any Person (x) Incurred and outstanding on the date on which such Person becomes a Restricted Subsidiary of the Parent Guarantor or another Restricted Subsidiary of the Parent Guarantor or is merged, consolidated, amalgamated or otherwise described abovecombined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Parent Guarantor or any Restricted Subsidiary or (y) Incurred to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Parent Guarantor or a Restricted Subsidiary; provided, provided however, with respect to each of sub-clause (x) and (y) of this Section 4.06(b)(xix), that both at the time of and immediately such acquisition or other transaction (1) the Parent Guarantor would have been able to Incur €1.00 of additional Indebtedness pursuant to Section 4.06(a) after giving effect to the incurrence thereof Incurrence of such Indebtedness pursuant to this Section 4.06(b)(xix) or (2) the Fixed Charge Coverage Ratio of the Parent Guarantor and its Restricted Subsidiaries would not be less than it was immediately prior to giving pro forma effect to such acquisition or other transaction; and
(xx) Contribution Debt.
(c) Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Debt of the same class will not be deemed to be an Incurrence of Debt for purposes of this Section 4.06.
(d) For purposes of determining compliance with any restriction on the Incurrence of Debt in euros where Debt is denominated in a different currency, the amount of such Debt will be the Euro Equivalent determined on the date of such determination; provided that if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to euros) covering principal amounts payable on such Debt, the amount of such Debt expressed in euros shall be adjusted to take into account the effect of such agreement. The principal amount of any Permitted Refinancing Debt Incurred in the same currency as the Debt being refinanced shall be the Euro Equivalent of the Debt refinanced determined on the date such Debt being refinanced was initially Incurred. Notwithstanding any other provision of this Section 4.06, for purposes of determining compliance with this Section 4.06, increases in Debt solely due to fluctuations in the exchange rates of currencies will not be deemed to exceed the maximum amount that an Issuer, the Parent Guarantor or a Subsidiary Guarantor may Incur under this Section 4.06.
(e) For purposes of determining any particular amount of Debt under this Section 4.06:
(i) no Default obligations with respect to letters of credit, guarantees or Event Liens, in each case supporting Debt otherwise included in the determination of Default such particular amount shall have occurred not be included;
(ii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.07 shall not be continuing treated as Debt;
(iii) accrual of interest, accrual of dividends, the accretion of accreted value, the obligation to pay commitment fees and the payment of interest in the form of additional preferred stock or result therefrom Debt shall not be treated as Debt; and
(iv) the reclassification of preferred stock as Debt due to a change in accounting principles shall not be treated as Debt.
(f) In the event that an item of Debt meets the criteria of more than one of the types of Debt described in this Section 4.06, the Parent Guarantor, in its sole discretion, shall classify items of Debt and shall only be required to include the amount and type of such Debt in one of such clauses and the Parent Guarantor shall be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 4.06, and may change the classification of an item of Debt (or any portion thereof) to any other type of Debt described in this Section 4.06 at any time.
(g) The amount of any Debt outstanding as of any date will be:
(i) in the case of any Debt issued with original issue discount, the amount of the liability in respect thereof determined in accordance with IFRS;
(ii) the aggregate principal amount of all the Debt, in the case of any other Debt; and
(iii) in respect of Debt of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Debt shall not exceed $1,000,000 at any one time outstandingof the other Person.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Limitation on Debt. Create(1) The Issuer shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer in any manner become directly or indirectly liable with respect to exist or otherwise become responsible for, contingently or otherwise, the payment of (individually and collectively, to “Incur” or, as appropriate, an “Incurrence”), any Debt (including any Acquired Debt, except); provided that the Issuer and any Guarantor shall be permitted to Incur Debt (including Acquired Debt) if:
(a) Indebtedness after giving effect to the Incurrence of any Credit Party to Agent such Debt and the Lenders under this Agreement and/or application of the other Loan Documentsproceeds thereof, on a pro forma basis, no Default or Event of Default would occur or be continuing;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event Incurrence and after giving effect to the Incurrence of Default has occurred such Debt and is continuing or would result from the renewal or refinancing application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.00 to 1.00; and
(c) if such Debt is Senior Debt, at the time of such Incurrence and after giving effect to the Incurrence of such Senior Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Senior Leverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Senior Debt, taken as one period, would be less than 4.00 to 1.00.
(2) This Section 4.04 shall not, however, prohibit the following (collectively, “Permitted Debt”):
(a) the Incurrence by the Issuer or any Restricted Subsidiary of Debt under Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed an amount equal to (i) €60.0 million, minus (ii) the amount of any permanent repayments or permanent prepayments of such Debt with, in each case, the proceeds of Asset Sales made in accordance with Section 4.07, plus (iii) in the case of any refinancing of any Debt permitted under this clause, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;
(b) the Incurrence by the Issuer of Debt pursuant to the Notes (other than Additional Notes) and the Incurrence of Debt by the Guarantors pursuant to the Guarantees (other than Guarantees of Additional Notes);
(c) any Debt of Borrowers the Issuer or any Restricted Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such other than Debt at any one time outstanding (including, without limitation, any Debt of the type described in another clause of this clause paragraph (c2)) which is set forth outstanding on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such DebtIssue Date;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 1 contract
Sources: Indenture (InterXion Holding N.V.)
Limitation on Debt. Create(a) The Issuer will not, and will not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer to exist in any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals manner become directly or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect indirectly liable with respect to such Debt on or otherwise become responsible for, contingently or otherwise, the Effective Datepayment of (individually and collectively, and shall otherwise be in compliance with this Agreementto “incur” or, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) as appropriate, an “incurrence”), any Debt of Borrowers or (including any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease Acquired Debt); provided that both at the time of Issuer and immediately any Guarantor will be permitted to incur Debt (including Acquired Debt) if, after giving effect to the incurrence thereof of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) This covenant shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default or Event the incurrence by the Issuer of Default shall have occurred Debt represented by the Notes issued on the Issue Date and be continuing, and the guarantee of the Notes by any Restricted Subsidiary;
(ii) the incurrence by the Issuer or any Restricted Subsidiary of Debt under any Credit Facilities in an aggregate principal amount of all such Debt at any one time outstanding not to exceed the sum of (A) $1,703,925,000, which is intended to approximate the amount of outstanding and/or committed Debt under the Existing Credit Facilities of the Issuer and its Restricted Subsidiaries as of the Issue Date; provided that any Debt outstanding under the Existing Credit Facilities as of the Issue Date is deemed to be incurred and outstanding under this clause (ii)(A) as of the Issue Date; plus (B) $300,000,000 plus (C) in the case of any refinancing of any Debt incurred pursuant to this clause (ii) an amount necessary to pay any fees, underwriting discounts and expenses, including premiums and defeasance costs, related to such refinancing;
(iii) the incurrence by the Issuer or any Restricted Subsidiary of intercompany Debt between the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that:
(A) if the Issuer is the obligor on any such Debt and the payee is not the Issuer or a Guarantor, (x) unless required by a Credit Facility, such Debt is unsecured and (y) it is subordinated in right of payment to the Notes or Guarantees, as applicable; and
(B) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Issuer or a Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an incurrence of such Debt not permitted by this clause (iii);
(iv) any Debt of the Issuer or any Restricted Subsidiary outstanding on the date of this Indenture (other than the Notes or Debt outstanding under the Existing Credit Facilities);
(v) guarantees of the Issuer’s Debt or Debt of any Restricted Subsidiary by the Issuer or any Restricted Subsidiary; provided that the Restricted Subsidiary complies with Section 4.11;
(vi) the incurrence by the Issuer or any Restricted Subsidiary of Debt arising from customary agreements providing for guarantees, indemnities or obligations in respect of earnouts or other purchase price adjustments or, in each case, similar obligations, in connection with the acquisition or disposition of any business or assets or Person or any shares of Capital Stock of a Subsidiary, other than guarantees or similar credit support given by the Issuer or any Restricted Subsidiary of Debt incurred by any Person acquiring all or any portion of such assets for the purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (vi) will at no time exceed the net proceeds, including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received from such disposition;
(vii) the incurrence by the Issuer or any Restricted Subsidiary of Debt under Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements, in each case entered into not solely for speculative purposes (collectively, “Hedging Obligations”);
(viii) the incurrence by the Issuer or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings or purchase money obligations or other Debt, in each case, incurred in connection with the financing of all or any part of the purchase price, charter expense, lease expense, rental payments or cost of design, construction, installation or improvement of Vessels, or any other property, plant or equipment used in the business of the Issuer or any of its Restricted Subsidiaries (including any reasonable related fees or expenses incurred in connection therewith), whether through the charter of, leasing of, or the direct purchase of, or of the Capital Stock of any Person owning, such Vessels (including any Debt deemed to be incurred in connection with such purchase) (it being understood that any such Debt may be incurred after the acquisition, purchase, charter or leasing or the construction, installation or the making of any improvement with respect to any such Vessel or container or other property, plant or equipment acquired, purchased, chartered or leased after the Issue Date and shall include Debt incurred to renew, refund, replace, refinance, defease or discharge Debt incurred pursuant to this clause (viii)); provided that the principal amount of Debt incurred pursuant to this clause (viii), including all Debt incurred pursuant to this clause (viii) to renew, refund, replace, refinance, defease or discharge any Debt incurred pursuant to this clause (viii), does not, at the time of incurrence, exceed the Applicable Fair Market Value Limit;
(ix) the incurrence by the Issuer or any Restricted Subsidiary of Debt to finance the replacement (through construction or acquisition) of a Vessel upon the total loss, destruction, condemnation, confiscation, requisition, seizure or forfeiture of, or other taking of title or use of, such Vessel (collectively, a “Total Loss”) in an aggregate amount no greater than the Ready for Sea Cost for such replacement Vessel, in each case less all compensation, damages and other payments (including insurance proceeds other than in respect of business interruption insurance) received by the Issuer or any of its Restricted Subsidiaries from any Person in connection with such Total Loss in excess of amounts actually used to repay Debt secured by the Vessel subject to such Total Loss and any costs and expenses incurred by the Issuer or any of its Restricted Subsidiaries in connection with such Total Loss;
(x) the incurrence by the Issuer or any Restricted Subsidiary of Debt in relation to (A) regular maintenance required on any of the Vessels owned or chartered by the Issuer or any of its Restricted Subsidiaries, (B) dry-docking of any of the Vessels owned by the Issuer or any of its Restricted Subsidiaries and (C) any expenditures that are, or are reasonably expected to be, recoverable from insurance on such Vessels;
(xi) the incurrence by the Issuer or any Restricted Subsidiary of Debt through the provision of bonds, guarantees, letters of credit or similar instruments required by the U.S. Federal Maritime Commission or other governmental or regulatory agencies, including, without limitation, customs authorities; in each case, for Vessels owned or chartered by, or in the ordinary course of business of, the Issuer or any of its Restricted Subsidiaries;
(xii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Debt in the form of customer deposits and advance payments received in the ordinary course of business from customers for services purchased in the ordinary course of business;
(xiii) the incurrence by the Issuer or any Restricted Subsidiary of Debt in any Qualified Securitization Financing;
(xiv) the incurrence by the Issuer or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, captive insurance companies, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(xv) the incurrence by the Issuer or any Restricted Subsidiary of Debt arising from (A) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of incurrence, (B) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations, (C) completion guarantees or performance or appeal bonds provided or letters of credit obtained by the Issuer or any Restricted Subsidiary in the ordinary course of business, (D) VAT or other tax guarantees in the ordinary course of business, (E) the financing of insurance premiums in the ordinary course of business and (F) any customary cash management, cash pooling or netting or setting off arrangements;
(xvi) Debt of any Person incurred and outstanding on the date on which such Person becomes a Restricted Subsidiary of the Issuer or is merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Issuer or any Restricted Subsidiary (other than Debt incurred (A) to provide all or any portion of the funds used to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Issuer or a Restricted Subsidiary or (B) otherwise in connection with or contemplation of such acquisition); provided, however, with respect to this clause (xvi), that at the time of such acquisition or other transaction pursuant to which such Debt is deemed to be incurred, (x) the Issuer could incur at least $1.00 of additional Debt under Section 4.04(a), after giving pro forma effect to such acquisition or other transaction or (y) the Consolidated Fixed Charge Coverage Ratio would not be less than it was immediately prior to giving effect to such acquisition or other transaction;
(xvii) the incurrence by the Issuer or any Restricted Subsidiary of Debt for the purpose of acquiring or investing in (as applicable) a business or joint venture (including, without limitation, any Debt through an investment or acquisition in such business or joint venture (or an undertaking related thereto) or through a co-ownership arrangement in respect of the type described in one or more assets); provided, however, with respect to this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000xvii), and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect that at the time of such incurrence, (x) the original Issuer could incur at least $1.00 of additional Debt under Section 4.04(a), after giving pro forma effect to such acquisition or other transaction and such incurrence of Debt or (y) the Consolidated Fixed Charge Coverage Ratio would not be less than it was immediately prior to giving effect to such investment or acquisition and such incurrence of Debt;
(dxviii) Debt under or guarantees of Debt of the Issuer or any Hedging TransactionsRestricted Subsidiary in connection with or on behalf of joint ventures in an aggregate principal amount at any one time outstanding not to exceed (A) the greater of (a) $175,000,000 and (b) 4.0% of Total Assets plus (B) in the case of any refinancing of any Debt incurred pursuant to this clause (xviii) an amount necessary to pay any fees, provided that underwriting discounts and expenses, including premiums and defeasance costs, related to such transaction is entered into for risk management purposes and not for speculative purposesrefinancing;
(exix) Non-Recourse Debt arising from judgments of the Issuer or decrees any Restricted Subsidiary incurred to finance the purchase, lease, improvement, development, construction, remanufacturing, refurbishment, handling and repositioning or repair of property (real or personal) or equipment or to refinance other Non-Recourse Debt incurred pursuant to this clause (xix) in amount at any one time outstanding not deemed to be a Default exceed (A) the greater of (a) $130,000,000 and (b) 3.0% of Total Assets plus (B) in the case of any refinancing of any Debt incurred pursuant to this clause (xix) an amount necessary to pay any fees, underwriting discounts and expenses, including premiums and defeasance costs, related to such refinancing;
(xx) the incurrence by the Issuer or Event any Restricted Subsidiary of Default under subsection Permitted Refinancing Debt incurred to renew, refund, replace, refinance, defease or discharge Debt incurred by it pursuant to, or described in, Section 4.04(a) and clauses (gi), (iv), (ix), (x), (xvi), (xvii) and this (xx) of Section 9.1;4.04(b), as the case may be; or
(fxxi) the incurrence by the Issuer or any Restricted Subsidiary of Debt owing (other than and in addition to a Person that is a Credit Party, but only to the extent Debt permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
clauses (i) additional unsecured Debt not otherwise described through (xx) above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the in an aggregate principal amount of all such Debt shall not exceed $1,000,000 at any one time outstanding, including all Permitted Refinancing Debt incurred to renew, refund, replace, refinance, defease or discharge any Debt incurred pursuant to this clause (xxi), not to exceed the greater of $200,000,000 or 4.0% of Total Assets. Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the obligation to pay commitment fees, the reclassification of preferred stock as Debt due to a change in accounting principles and the payment of interest or dividends in the form of additional Debt or in the form of additional shares of the same class will not be deemed to be an incurrence of Debt for purposes of this covenant.
Appears in 1 contract
Sources: Indenture (Danaos Corp)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Company shall not, and ------------------ shall not permit any of its Subsidiaries to, directly or indirectly, issue any Credit Party Debt unless, at the time of such issuance, the Consolidated EBITDA Coverage Ratio as of the date such Debt is issued exceeds 2.5 to Agent and the Lenders under this Agreement and/or the other Loan Documents;1.
(b) Notwithstanding the foregoing, the Company and its Subsidiaries may issue the following Debt:
(1) (A) Commercial paper of the Company having a maturity of 12 months or less in an aggregate principal amount not to exceed $50.0 million outstanding at any time and (B) Debt existing on issued pursuant to the Effective Date Credit Facility (or any Refinancing Agreement);
(2) Debt issued to and set forth held by the Company or a Wholly Owned Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock that results in Schedule 8.1 attached hereto and any renewals such Wholly Owned Subsidiary ceasing to be a Wholly Owned Subsidiary or refinancing any transfer of such Debt (provided other than to the Company or a Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the issuance of such Debt by the issuer thereof;
(3) The Securities and Debt issued in exchange for, or the proceeds of which are used to Refinance, any Debt permitted by this clause (3); provided, however, that (i) the aggregate principal amount of such renewed or refinanced the Debt so issued shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, so Refinanced and (ii) the aggregate amount Debt so issued (A) shall have a Stated Maturity no earlier than the Stated Maturity of all such the Debt at any one time so Refinanced and (B) shall have an Average Life no less than the remaining Average Life of the Debt so Refinanced; (4) Debt (other than Debt described in clause (1), (2) or (3) above) outstanding (includingon the date on which the Securities were originally issued or Debt issued in exchange for, without limitationor the proceeds of which are used to Refinance, any Debt of the type described in permitted by this clause (c4) which is set forth on Schedule 8.1 hereofor permitted by clause (a) above; provided, however, that the principal amount of the Debt so issued shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time principal amount of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt so Refinanced and the Subordinated Debt;
Debt so issued (hA) Debt arising under shall have a Stated Maturity no earlier than the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion Stated Maturity of the construction projects set forth on Schedule 8.1(i);
Debt so Refinanced and (iB) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) an Average Life no less than the aggregate amount remaining Average Life of all such the Debt shall not exceed $1,000,000 at any one time outstanding.so Refinanced; and
Appears in 1 contract
Sources: Indenture (Borden Chemicals & Plastics Limited Partnership /De/)
Limitation on Debt. CreateThe Borrower shall not, and shall not permit any Subsidiary of the Borrower to, incur, assume assume, create or suffer to exist any Debt, exceptexcept for:
(a) Indebtedness in the case of any Credit Party to Agent and the Lenders Borrower:
(i) Debt under this Agreement and/or the other Loan Financing Documents;
(bii) any Debt existing on the Effective Date date hereof and set forth on Schedule VI;
(iii) Debt incurred to refinance, replace, refund or extend the Old Securities that were not tendered in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt the Exchange Note Offering (the "Remaining Old Securities"), provided that (iv) the aggregate principal amount of such renewed or refinanced Debt shall not exceed be greater than the aggregate principal amount of the original Remaining Old Securities, (w) the Borrower and AES BVI II (to the extent set forth in the Financing Documents) shall be the only direct or contingent obligors in respect of such Debt outstanding provided that if, after the date hereof any additional Subsidiaries of the Borrower Guarantee the Borrower's Obligations hereunder, such Subsidiaries may also be contingent obligors in respect of such Debt, (x) the final maturity of such Debt is on or later than December 12, 2005, (y) the material terms taken as a whole of any such Debt, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Obligors or the Bank Parties than the terms of any agreement or instrument governing the Senior Secured Exchange Notes and (z) the interest rate applicable to any such Debt does not exceed the then applicable market interest rate;
(iv) Debt issued in exchange for any of the Debt permitted by Section 5.07(a)(ii) (the "Exchanged Debt"), provided that (v) the aggregate principal amount of such Debt on the Effective Date (less any date of such exchange shall not be greater than the aggregate principal payments and the amount of the Exchanged Debt, (w) the final maturity of such Debt shall in no event be prior to December 12, 2005, (x) such Debt shall not contain any commitment reductions made thereon Payment Restriction more restrictive than the Payment Restrictions contained in the Exchanged Debt, (y) the parties to whom such Debt is owed are the same as the parties to whom the Exchanged Debt was owed on the date of such exchange and (z) the annual interest payable in cash during any calendar year ending on or prior to December 31, 2005 in respect of such renewal Debt shall not be greater than the interest payable in cash during such calendar year in respect of the Exchanged Debt;
(v) Debt representing a refinancing, replacement or refunding of Debt permitted by Section 5.07(a)(ii) whose final maturity date is prior to December 12, 2005; provided that:
(A) (w) the aggregate principal amount of such Debt outstanding or available will not exceed the principal amount outstanding or available at the time of such refinancing, replacement or refunding (plus fees and expenses, including any premium and defeasance costs relating to such refinancing, replacement or refunding), (x) the final maturity of such Debt is later than December 12, 2005, (y) such Debt shall not contain any Payment Restriction more restrictive than the Payment Restrictions contained in the Debt being refinanced, replaced or refunded and (z) the interest rate applicable to any such refinancing, replacement or refunding Debt does not exceed the then applicable market interest rate; and
(B) no obligor shall be liable for any such Debt except to the extent that it was liable for the Debt so refinanced, replaced or refunded.
(vi) Debt owing by the Borrower to a Consolidated Subsidiary of the Borrower so long as such Debt is subordinated on terms reasonably satisfactory to the Agent to the Debt of the Borrower under the Financing Documents;
(vii) any Lien permitted by Section 5.10 that constitutes Debt not otherwise permitted by this Section;
(viii) Letters of credit, surety bonds, Guarantees and performance bonds supporting obligations of Subsidiaries so long as, after giving effect to such letters of credit, surety bonds, Guarantees and performance bonds (and the Investments represented thereby), the Borrower would be in compliance with Section 5.16;
(ix) the Sul Guarantee;
(x) other Debt, in the aggregate, not to exceed at any one time outstanding $225,000,000 so long as (i) the final maturity of such Debt shall in no event be prior to December 12, 2005 and (ii) such Debt shall not have any scheduled amortization prior to December 12, 2005; provided that if the renewal Debt permitted under this clause (x) is incurred to refinance, replace, refund or refinancing extend any Debt, such Debt may be incurred to only refinance, replace, refund or extend the Debt outstanding under the AES N.Y. Funding Credit Facility; provided, further that if the Debt permitted under this Section 5.07(a)(x) is not used for the purposes set forth in the immediately preceding proviso, and if the aggregate amount of cash and Temporary Cash Investments of the Borrower and the aggregate Unused Revolving Credit Loan Commitments is equal to or greater than $200,000,000 on the Business Day immediately preceding the incurrence of such Debt, only $75,000,000 of such other Debt shall be permitted by this Section 5.07(a)(x).
(xi) Debt incurred to refinance, replace, refund or extend any or all of the Debt of the Borrower under the Financing Documents, provided that (u) the aggregate principal amount of such Debt shall not be greater than the aggregate principal amount of the Debt being refinanced, replaced, refunded or extended, (v) the Obligors shall be the only direct or contingent obligors in respect of such Debt solely to the extent such Obligor is liable in respect of the Debt being refinanced, replaced, refunded or extended, provided that if, after the date hereof any additional Subsidiaries of the Borrower Guarantee the Borrower's Obligations hereunder, such Subsidiaries may also be contingent obligors in respect of such Debt, (w) the final maturity of such Debt is later than December 12, 2005, (x) the material terms taken as a whole of such Debt, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Obligors or the Bank Parties than the terms hereof, (y) the interest rate applicable to such Debt does not exceed the then applicable market interest rate and (z) the Net Cash Proceeds from the incurrence of such Debt shall be on substantially the same or better terms applied as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i2.11(b)(iv);
(ixii) additional unsecured Debt not otherwise described aboveincurred as a bridge financing for a proposed Asset Sale, provided that both at (x) the time only direct or contingent obligor in respect of such Debt is the holder of the asset that is the subject of such Asset Sale, (y) the interest rate applicable to such Debt does not exceed the then applicable market interest rate and immediately after giving effect to (z) the Net Cash Proceeds from the incurrence thereof of such Debt shall be applied as set forth in Section 2.11(b);
(ixiii) no Default Debt incurred to refinance, replace or Event refund any of Default shall have occurred and be continuing or result therefrom and the obligations arising in respect of the Existing Trust Preferred Securities, provided that (iix) the aggregate amount only direct or contingent obligor in respect of all such Debt is the Borrower, (y) the annual interest payable in cash during any calendar year ending on or prior to December 31, 2005 in respect of such Debt shall not exceed $1,000,000 at any one time outstandingbe greater than the interest payable during such calendar year in respect of the Existing Trust Preferred Securities being refinanced, replaced or refunded and (z) the final maturity of such Debt shall be later than December 12, 2005; and
(xiv) the Lake Worth Letter of Credit.
(b) in the case of the Borrower's Subsidiaries:
Appears in 1 contract
Sources: Credit, Reimbursement and Exchange Agreement (Aes Corporation)
Limitation on Debt. Create(1) The Issuer shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer in any manner become directly or indirectly liable with respect to exist or otherwise become responsible for, contingently or otherwise, the payment of (individually and collectively, to “Incur” or, as appropriate, an “Incurrence”), any Debt (including any Acquired Debt, except); provided that the Issuer and any Guarantor shall be permitted to Incur Debt (including Acquired Debt) if:
(a) Indebtedness after giving effect to the Incurrence of any Credit Party to Agent such Debt and the Lenders under this Agreement and/or application of the other Loan Documentsproceeds thereof, on a pro forma basis, no Default or Event of Default would occur or be continuing;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event Incurrence and after giving effect to the Incurrence of Default has occurred such Debt and is continuing or would result from the renewal or refinancing application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.00 to 1.00; and
(c) if such Debt is Senior Debt, at the time of such Incurrence and after giving effect to the Incurrence of such Senior Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Senior Leverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Senior Debt, taken as one period, would be less than 4.00 to 1.00.
(2) This Section 4.04 shall not, however, prohibit the following (collectively, “Permitted Debt”):
(a) the Incurrence by the Issuer or any Restricted Subsidiary of Debt under Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed an amount equal to (i) €100.0 million, plus (ii) in the case of any refinancing of any Debt permitted under this clause, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;
(b) the Incurrence by the Issuer of Debt pursuant to the Notes (other than Additional Notes) and the Incurrence of Debt by the Guarantors pursuant to the Guarantees (other than Guarantees of Additional Notes);
(c) any Debt of Borrowers the Issuer or any Restricted Subsidiary incurred outstanding on the Issue Date (other than (i) Debt described in Section 4.04(2)(a) or Section 4.04(2)(b) or (ii) Debt Incurred to finance the acquisition purchase of fixed or capital assets, whether real property on which the AMS3 data centre is located which shall be deemed Incurred pursuant to a loan any other clause of Section 4.04(2) or a Capitalized Lease pursuant to Section 4.04(1)), including the Existing Notes until the Existing Notes are repaid in full or otherwise discharged; InterXion Holding N.V. Indenture Page 47
(d) the Incurrence by the Issuer or any Restricted Subsidiary of intercompany Debt between the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that both at the time of and immediately after giving effect to the incurrence thereof that:
(i) no Default if the Issuer or Event a Guarantor is the obligor on any such Debt and the lender of Default shall have occurred such Debt is not the Issuer or a Guarantor, it is unsecured and be continuingexpressly subordinated in right of payment to the prior payment in full in cash (whether upon Stated Maturity, acceleration or otherwise) and the performance in full of its obligations under the Notes or its Guarantee, as the case may be; and
(ii) (x) any disposition, pledge or transfer of any such Debt to any Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing from the Issuer or another Restricted Subsidiary ceases to be a Restricted Subsidiary, shall, in each case, be deemed to be an Incurrence of such Debt not permitted by Section 4.04(2)(d);
(e) guarantees of the Notes made in accordance with the provisions of Section 4.11;
(f) the Incurrence by the Issuer or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition, lease, rental or development and improvement of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property plant or equipment used in the Issuer’s or any Restricted Subsidiary’s business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (f) and still outstanding shall not in the aggregate amount exceed the greater of all €60.0 million and 6% of Total Assets; provided further that such Debt at exists prior to or on the date of such acquisition, lease, rental or development and improvement or is created within 270 days thereafter;
(g) the Incurrence by the Issuer or any one time outstanding (Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of earnouts or other purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Issuer or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofg) shall not at no time exceed $5,000,000the gross proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value), actually received from the original incurrence sale of such Debtassets;
(dh) the Incurrence by the Issuer or any Restricted Subsidiary of Debt under any Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(ei) the Incurrence by the Issuer or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising from judgments under similar legislation, or decrees pursuant to self-insurance obligations and not deemed to be a Default in connection with the borrowing of money or Event the obtaining of Default under subsection (g) of Section 9.1advances or credit;
(fj) the Incurrence of Debt owing to by the Issuer or any Restricted Subsidiary arising from (i) the honoring by a Person bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is a Credit Partyextinguished within 5 business days of Incurrence, but only to (ii) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations and (iii) completion guarantees provided or letters of credit obtained by the extent permitted under Section 8.7 hereofIssuer or any Restricted Subsidiary in the ordinary course of business;
(gk) the Comerica Incurrence by the Issuer or any Restricted Subsidiary of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in Section 4.04(1), Section 4.04(2)(b), Section 4.04(2)(c), Section 4.04(2)(k) and Section 4.04(2)(t), as the Subordinated Debtcase may be;
(hl) Debt arising under Customer deposits and advance payments received in the Surety Agreements, provided that ordinary course of business from customers for goods purchased in the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion ordinary course of the construction projects set forth on Schedule 8.1(i)business;
(im) additional unsecured Management Advances;
(n) any customary cash management, cash pooling or netting or setting off arrangements in the ordinary course of business;
(o) without limiting Section 4.11 the guarantee by the Issuer or any Restricted Subsidiary of Debt not otherwise described above, that was permitted to be incurred by another provision of this covenant; provided that both at if the time of and immediately after giving effect Debt being guaranteed is subordinated to the incurrence thereof Notes or is unsecured, then the guarantee shall be subordinated or unsecured to the same extent as the Debt guaranteed;
(p) without limiting Section 4.05, Debt arising by reason of any Lien granted by or applicable to such Person securing Debt of the Issuer or any Restricted Subsidiary so long as the Incurrence of such Debt is permitted under the terms of this Indenture;
(q) Debt consisting of (i) no Default or Event the financing of Default shall have occurred and be continuing or result therefrom and insurance premiums, (ii) take or pay obligations contained in supply agreements or (iii) rental guarantees, in each case, in the aggregate amount ordinary course of all such Debt shall not exceed $1,000,000 business; (r) guarantees of the obligations of Qualified Joint Ventures at any one time outstanding.outstanding not exceeding the greater of €25.0 million and 3% of Total Assets in aggregate principal amount;
Appears in 1 contract
Sources: Indenture (InterXion Holding N.V.)
Limitation on Debt. Create, incur, assume or suffer to exist (a) The Company shall not Incur any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)including Acquisition Debt, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately unless after giving effect to the incurrence thereof Incurrence of such Debt and the receipt and application of the proceeds therefrom, the Fixed Charge Ratio of the Company would be greater than 2 to 1. The Company's obligation to comply with this covenant will terminate if and when the Notes become Investment Grade.
(b) Notwithstanding the foregoing, the Company may Incur each and all of the following:
(i) no Default Debt under or Event in respect of Default shall have occurred and be continuing, and (ii) the Bank Credit Agreement in an aggregate principal amount of all such Debt at any one time outstanding not to exceed $600 million;
(includingii) Debt issued in exchange for, without limitationor the proceeds of which are used to refinance, any outstanding Securities or other Debt of the type described Company in an amount (or, if such new Debt provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration thereof, with an original issue price) not to exceed the amount so exchanged or refinanced (plus accrued interest, premium, if any, and fees and expenses related to such exchange or refinancing); provided that (A) the date of any scheduled payment of principal by way of sinking fund, mandatory redemption or otherwise (including defeasance) on any Debt so refinanced or exchanged otherwise due after the final scheduled Maturity Date of the Securities shall not occur prior to such Maturity Date as a result of such exchange or refinancing and (B) new Debt the proceeds of which are used to exchange or refinance the Securities or other Debt of the Company that is subordinated in right of payment to the Securities shall only be permitted under this clause (cii) if (x) in case the Securities are exchanged or refinanced in part, such new Debt, by its terms or by the terms of any agreement or instrument pursuant to which such Debt is set forth on Schedule 8.1 hereofissued, is expressly made pari passu with, or subordinate in right of payment to, the remaining Securities, (y) in case the Debt to be exchanged or refinanced is subordinated in right of payment to the Securities, such new Debt, by its terms or by the terms of any agreement or instrument pursuant to which such Debt is issued, is expressly made subordinate in right of payment to the Securities, at least to the extent that the Debt to be exchanged or refinanced is subordinated in right of payment to the Securities and (z) in case the Securities are exchanged or refinanced in part or the Debt to be exchanged or refinanced is subordinated in right of payment to the Securities, as of the date the new Debt is Incurred, the Average Life of the new Debt shall not exceed $5,000,000be equal to or greater than the Average Life of the Securities or Debt to be exchanged or refinanced;
(iii) Debt of the Company to any of its Consolidated Subsidiaries, and except that any renewals or refinancings transfer of such Debt on terms substantially the same or better by a Consolidated Subsidiary (other than those in effect at the time to another Consolidated Subsidiary) will be deemed to be an Incurrence of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, ; provided that such transaction Debt is entered into for risk management purposes and not for speculative purposes;expressly subordinated in right of payment to the Securities; and
(eiv) Debt arising from judgments or decrees in an aggregate principal amount not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 50 million at any one time outstanding.
(c) For purposes of determining any particular amount of Debt under this Section 4.8, Guarantees of, or obligations with respect to letters of credit supporting, Debt otherwise included in the determination of such particular amount shall not be included. For purposes of determining compliance with this Section 4.8, (A) in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above clauses, the Company, in its sole discretion, shall classify such item of Debt and only be required to include the amount and type of such Debt in one of such clauses and (B) the amount of Debt issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in conformity with GAAP.
Appears in 1 contract
Sources: Indenture (Aes Corporation)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, create, issue, Incur, assume, guarantee or in any manner become directly or indirectly liable with respect to or otherwise become responsible for, contingently or otherwise, the payment of any Credit Party (individually and collectively, to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) “Incur” or, as appropriate, an “Incurrence”), any Debt existing on (including any Acquired Debt); provided that the Effective Date and set forth in Schedule 8.1 attached hereto Parent Guarantor, the Borrowers and any renewals or refinancing Restricted Subsidiary shall be permitted to Incur Debt (including Acquired Debt) if in each case (i) after giving effect to the Incurrence of such Debt (provided that (i) and the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount application of the original Debt outstanding proceeds thereof, on the Effective Date (less any principal payments a pro forma basis, no Default or Event of Default would occur or be continuing and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred Incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) Section 8.1(a) shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default Debt arising under the Senior Finance Documents Incurred on the Closing Date that constitutes “Permitted Refinancing Debt” as defined in, and in accordance with, the indenture governing the July 2012 Secured Notes;
(ii) the Incurrence by the Parent Guarantor or Event any Restricted Subsidiary of Default shall have occurred and be continuing, Debt under Credit Facilities in an aggregate principal amount not to exceed the greater of (i) €350,000,000 and (ii) an amount equal to (I) 85% of Total Receivables plus 60% of Total Inventories less (II) €250,000,000;
(iii) (x) any Debt of the Parent Guarantor or any Restricted Subsidiary (other than Debt described in clauses (i) and (ii) of this Section 8.1(b)) outstanding on the Closing Date;
(iv) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of intercompany Debt between the Parent Guarantor and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that:
(A) if a Borrower or a Guarantor is the obligor on any such Debt, unless required by a Credit Facility and only to the extent legally permitted, such Debt must be unsecured (except in respect of the intercompany current liabilities Incurred in the ordinary course of business in connection with the cash management operations of the Parent Guarantor and its Restricted Subsidiaries); and
(B) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Parent Guarantor or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Parent Guarantor or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Parent Guarantor’s Debt or Debt of any Restricted Subsidiary by any Restricted Subsidiary that are permitted by and made in accordance with the provisions of Section 8.6;
(vi) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property, plant, equipment or other assets used in the Parent Guarantor’s or any Restricted Subsidiary’s business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (vi) and still outstanding shall not in the aggregate exceed the greater of €100,000,000 and 3.00% of Total Assets; and provided, further, that the total principal amount of all any Debt Incurred in connection with an acquisition or development permitted under this clause (vi) did not in each case at the time of Incurrence exceed (A) the Fair Market Value of the acquired or constructed asset or improvement so financed or (B) in the case of an uncompleted constructed asset, the amount of the asset to be constructed, as determined on the date the contract for construction of such asset was entered into by the Parent Guarantor or the relevant Restricted Subsidiary (including, in each case, any reasonable related fees and expenses Incurred in connection with such acquisition, construction or development);
(vii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt at any one time outstanding (arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Parent Guarantor or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofvii) shall not at no time exceed $5,000,000the net proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(dviii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under any Commodity Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(eix) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under Currency Agreements entered into in the ordinary course of business and not for speculative purposes;
(x) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under Interest Rate Agreements entered into in the ordinary course of business and not for speculative purposes;
(xi) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(xii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary arising from judgments (A) the honoring by a bank or decrees other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within 5 Business Days of Incurrence, (B) bankers’ acceptances, performance, surety, judgment, completion, payment, appeal or similar bonds, instruments or obligations, (C) completion guarantees, advance payment, customs, VAT or other tax guarantees or similar instruments provided or letters of credit obtained by the Parent Guarantor or any Restricted Subsidiary in the ordinary course of business, and (D) the financing of insurance premiums in the ordinary course of business;
(xiii) any Debt of the Parent Guarantor or any Restricted Subsidiary Incurred pursuant to the GE Commercial Finance Facility or any other Permitted Receivables Financing in an aggregate principal amount at any one time outstanding not to exceed €45,000,000;
(xiv) the Incurrence by a Person of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in, paragraphs (a), (b)(i) and (b)(iii) of this Section 8.1, as the case may be;
(xv) guarantees by the Parent Guarantor or a Restricted Subsidiary of Debt Incurred by Permitted Joint Ventures in an aggregate principal amount at any one time outstanding not to exceed an amount equal to €50,000,000;
(xvi) cash management obligations and Debt in respect of netting services, pooling arrangements or similar arrangements in connection with cash management in the ordinary course of business consistent with past practice;
(xvii) take-or-pay obligations and customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business; and
(xviii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (i) through (xvii) of this Section 8.1(b)) in an aggregate principal amount at any one time outstanding not to exceed €175,000,000.
(c) Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Debt of the same class will not be deemed to be an Incurrence of Debt for purposes of this Section 8.1.
(d) For purposes of determining compliance with any restriction on the Incurrence of Debt in euros where Debt is denominated in a Default different currency, the amount of such Debt will be the Euro Equivalent determined on the date of such determination; provided that if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to euros) covering principal amounts payable on such Debt, the amount of such Debt expressed in euros shall be adjusted to take into account the effect of such agreement. The principal amount of any Permitted Refinancing Debt Incurred in the same currency as the Debt being refinanced shall be the Euro Equivalent of the Debt refinanced determined on the date such Debt being refinanced was initially Incurred. Notwithstanding any other provision of this Section 8.1, for purposes of determining compliance with this Section 8.1, increases in Debt solely due to fluctuations in the exchange rates of currencies will not be deemed to exceed the maximum amount that a Borrower, the Parent Guarantor or Event a Subsidiary Guarantor may Incur under this Section 8.1.
(e) For purposes of Default determining any particular amount of Debt under subsection this Section 8.1:
(gi) obligations with respect to letters of credit, guarantees or Liens, in each case supporting Debt otherwise included in the determination of such particular amount shall not be included;
(ii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 9.18.2 shall not be treated as Debt;
(iii) accrual of interest, accrual of dividends, the accretion of accreted value, the obligation to pay commitment fees and the payment of interest in the form of additional preferred stock or Debt shall not be treated as Debt; and
(iv) the reclassification of preferred stock as Debt due to a change in accounting principles shall not be treated as Debt.
(f) In the event that an item of Debt owing meets the criteria of more than one of the types of Debt described in this Section 8.1, the Parent Guarantor, in its sole discretion, shall classify items of Debt and shall only be required to a Person that is a Credit Partyinclude the amount and type of such Debt in one of such clauses and the Parent Guarantor shall be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 8.1, but only and may change the classification of an item of Debt (or any portion thereof) to the extent permitted under any other type of Debt described in this Section 8.7 hereof;8.1 at any time.
(g) the Comerica The amount of any Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and outstanding as of any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);date will be:
(i) additional unsecured in the case of any Debt not otherwise described aboveissued with original issue discount, provided that both at the time amount of and immediately after giving effect to the incurrence liability in respect thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and determined in accordance with IFRS;
(ii) the aggregate principal amount of all the Debt, in the case of any other Debt; and
(iii) in respect of Debt of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Debt shall not exceed $1,000,000 at any one time outstandingof the other Person.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist (a) The Company shall not Incur any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)including Acquisition Debt, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Dateunless, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the receipt and application of the proceeds therefrom, the Fixed Charge Ratio of the Company would be equal to or greater than 2.0 to 1.
(b) Notwithstanding the provisions of Section 1008(a), the Company may Incur each and all of the following: (i) no Default or Event of Default shall have occurred and be continuingCompany Refinancing Debt, and (ii) Debt of the aggregate amount Company to any of all its Restricted Subsidiaries or any Eligible Joint Venture that is expressly subordinated in right of payment to the Securities, provided that any transfer of such Debt by a Restricted Subsidiary or an Eligible Joint Venture (other than to another Restricted Subsidiary or another Eligible Joint Venture), or any transfer of the Company's ownership interest, or a portion thereof, in such Restricted Subsidiary or such Eligible Joint Venture or the interest, or a portion thereof, of Kiewit in a Permitted Joint Venture or an Eligible Joint Venture (which transfer has the effect of causing such Restricted Subsidiary or such Eligible Joint Venture to cease to be a Restricted Subsidiary or an Eligible Joint Venture, as the case may be), shall be deemed to be an Incurrence of Debt that is subject to the provisions of this Section 1008 other than this clause (ii), (iii) Debt in an aggregate principal amount not to exceed $100 million outstanding at any one time outstanding may be issued under or in respect of Permitted Working Capital Facilities, (includingiv) Non-Recourse Debt Incurred in respect of one or more Permitted Facilities in which the Company has a direct or indirect interest, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(dv) Debt under any Hedging Transactionsin respect of Currency Protection Agreements or Interest Rate Protection Agreements, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(evi) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Purchase Money Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and amount of such Debt (net of any other Bond Documents related thereto following the completion original issue discount) does not exceed 90% of the construction projects set forth on Schedule 8.1(i);
fair market value of the Property acquired, (ivii) additional unsecured the Securities and other Debt not otherwise described above, provided that both at outstanding as of the time Issue Date of and immediately after giving effect the Securities (other than Debt to the incurrence thereof extent that it is extinguished, retired, defeased or repaid in connection with the original issuance of the Securities), including Debt that is Incurred in respect of interest or discount on such Debt (ior Redeemable Stock issued as dividends in respect of Redeemable Stock) no Default pursuant to the terms of the agreement or Event instrument that governs such Debt (or such Redeemable Stock) as in effect on the Issue Date of Default shall have occurred and be continuing or result therefrom the Securities and (iiviii) the Debt in an aggregate principal amount of all such Debt shall not to exceed $1,000,000 75 million outstanding at any one time outstandingtime.
Appears in 1 contract
Sources: Indenture (Calenergy Co Inc)
Limitation on Debt. Create(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer in any manner become directly or indirectly liable with respect to exist any Debtor otherwise become responsible for, except:
(a) Indebtedness contingently or otherwise, the payment of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (including any Acquired Debt); provided that (i) the aggregate principal amount of such renewed Issuer or refinanced any Guarantor may incur Debt shall not exceed (including Acquired Debt), if on the aggregate principal amount date of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing incurrence of such Debt shall and the application of the proceeds thereof, on a pro forma basis, the Leverage Ratio of the Issuer and its Restricted Subsidiaries would be on substantially the same or better terms as in effect with respect less than 6.0 to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, 1.0 and (ii) Restricted Subsidiaries that are not Guarantors may incur Debt (including Acquired Debt), if on the aggregate amount date of all the incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Leverage Ratio of the Restricted Subsidiaries that are not Guarantors would be less than 4.5 to 1.0.
(b) This covenant shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) the Incurrence by the Issuer or any Restricted Subsidiary in reliance on this clause (i) of Debt under Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed $1,400.0 million;
(ii) the Incurrence by the Issuer of Debt pursuant to the Notes (excluding any Additional Notes);
(iii) any Debt of the Issuer or any Restricted Subsidiary (other than Debt described in another clause of this paragraph) outstanding on the date of this Indenture;
(iv) the Incurrence by the Issuer or any Restricted Subsidiary of intercompany Debt between the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that (A) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary) and (B) any transaction pursuant to which any Restricted Subsidiary that has Debt owing to the Issuer or another Wholly Owned Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Issuer’s Debt or Debt of any Restricted Subsidiary by the Issuer or any Restricted Subsidiary if such guaranteed Debt is permitted to be incurred in accordance with the provisions of this Section 4.06;
(vi) the Incurrence by the Issuer or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of any property or asset, tangible or intangible, including network assets (including switches, towers, software, rights-of-way, intellectual property, licenses, concessions, spectrum and other intangibles and facilities to house network assets used in the Issuer’s or any Restricted Subsidiary’s business and the capital stock or similar ownership interest of any Person engaged in substantially the same line of business as the Issuer and its Restricted Subsidiaries or reasonably related or ancillary thereto (including the cost of design, development, acquisition, construction (including capitalized interest, installation, improvement, transportation, integration and prepaid maintenance and all reasonable related fees or expenses); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (vi) (and Permitted Refinancing Debt with respect thereto) and still outstanding shall not in the aggregate exceed the greater of (A) $200.0 million and (B) 5.0% of Total Assets;
(vii) the Incurrence by the Issuer or any Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Issuer or any Restricted Subsidiary of Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and Incurred by any renewals Person acquiring all or refinancings any portion of such Debt on terms substantially assets for the same or better than those in effect at the time purpose of the original incurrence of financing such Debtacquisition;
(dviii) the Incurrence by the Issuer or any Restricted Subsidiary of Debt under any Hedging Transactions, provided that such transaction is Currency Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(eix) the Incurrence by the Issuer or any Restricted Subsidiary of Debt arising from judgments or decrees under Interest Rate Agreements entered into in the ordinary course of business and not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(fx) the Incurrence of Debt owing by the Issuer or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to a Person that is a Credit Party, but only to self-insurance obligations and not in connection with the extent permitted under Section 8.7 hereofborrowing of money or the obtaining of advances or credit;
(gxi) the Comerica Incurrence of Debt by the Issuer or any Restricted Subsidiary arising from (A) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within 5 Business Days of Incurrence, (B) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations, (C) completion guarantees provided or letters of credit obtained by the Issuer or any Restricted Subsidiary in the ordinary course of business; and (D) the Subordinated Debtfinancing of insurance premiums in the ordinary course of business;
(hxii) the Incurrence by a Person of Permitted Refinancing Debt arising under in exchange for or the Surety Agreementsnet proceeds of which are used to refund, provided replace or refinance Debt Incurred by it pursuant to, or described in, paragraphs (a), (b)(ii), (b)(iii) and (b)(vi) of this Section 4.06, as the case may be; and
(xiii) the incurrence of other Debt not to exceed in the aggregate the greater of (i) $200.0 million and (ii) 5.0% of Total Assets.
(c) Notwithstanding any other provision of this Section 4.06, for purposes of determining compliance with this Section 4.06, increases in Debt solely due to fluctuations in the exchange rates of currencies will not be deemed to exceed the maximum amount that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and Issuer may Incur under this Section 4.06.
(d) For purposes of determining any other Bond Documents related thereto following the completion particular amount of the construction projects set forth on Schedule 8.1(i);Debt under this Section 4.06:
(i) additional unsecured obligations with respect to letters of credit, guarantees or Liens, in each case supporting Debt otherwise included in the determination of such particular amount, shall not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and included;
(ii) any Liens granted pursuant to the aggregate equal and ratable provisions referred to in Section 4.07 will not be treated as Debt; and
(iii) accrual of interest, accrual of dividends, the accretion of accreted value, the obligation to pay commitment fees and the payment of interest in the form of additional Debt will not be treated as Debt.
(e) In the event that an item of Debt meets the criteria of more than one of the types of Debt described in this Section 4.06, the Issuer, in its sole discretion, shall classify items of Debt and shall only be required to include the amount and type of all such Debt in one of such clauses and the Issuer shall not exceed $1,000,000 be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 4.06, and may change the classification of an item of Debt (or any portion thereof) to any other type of Debt described in this Section 4.06 at any one time outstandingtime.
Appears in 1 contract
Sources: Indenture (Digicel Group LTD)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent the Agents and the Lenders under this Agreement and/or the other Loan Credit Documents;
(b) any Debt existing on the Effective Closing Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Closing Date (plus any accrued interest, prepayment penalties or fees less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective DateClosing Date (other than with respect to pricing and fees), and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers any Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition (other than a Permitted Acquisition) of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof8.1) shall not exceed $5,000,00010,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such DebtDebt (other than with respect to pricing and fees);
(d) Subordinated Debt approved by the Administrative Agent and the Required Lenders;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(fg) Guarantee Obligations by any Credit Party of Debt of any other Credit Party permitted hereunder;
(h) Debt of any Credit Party arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn by such Credit Party in the ordinary course of business against insufficient funds, so long as such Debt is promptly repaid;
(i) Debt in the form of (i) indemnification or similar obligations or (ii) earn-outs, incentive, non-compete, consulting or other similar arrangements and other contingent obligations, in each case, in respect of Permitted Acquisitions or Investments permitted by Section 8.7 (both before or after any liability associated therewith becomes fixed), with any such Debt under clause (ii) above not to exceed $5,000,000 in the aggregate at any one time;
(j) Debt of any Credit Party in respect of workers’ compensation claims, bank guarantees, warehouse receipts or similar facilities, property casualty or liability insurance, take or pay obligations in supply arrangements, self-insurance obligations, performance, bid, customs, government, appeal and surety bonds, completion guaranties and other obligations of a similar nature, in each case in the ordinary course of business;
(k) Debt owing to any insurance company in connection with the financing of insurance premiums permitted by such insurance company in the ordinary course of business to the extent not exceeding $5,000,000 at any one time outstanding;
(l) Debt of any Person that becomes a Credit Party as a part of a Permitted Acquisition after the Closing Date, and extensions, renewals, refinancings and replacements of any such Debt that do not increase the outstanding principal amount thereof (other than by an amount not greater than accrued interest, fees and expenses, including premium and defeasance costs, associated therewith) or shorten maturity, add any Credit Party as a new obligor or new property of any Credit Party as security therefore or result in a decreased average weighted life thereof during the term of this Agreement; provided that (A) such acquired Debt exists at the time such Person becomes a Credit Party and is not created in contemplation of or in connection with such Person becoming a Credit Party, (B) neither any Borrower nor any other Credit Party shall be a new obligor therefore and no new property of any Borrower or any other Credit Party shall provide security therefore and (C) the aggregate amount of such Debt shall not exceed the greater of (x) $10,000,000 and (y) 25.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a pro forma basis);
(m) Debt in respect of overdraft facilities, employee credit card programs, netting services, automatic clearinghouse arrangements and other cash management and similar arrangements in the ordinary course of business;
(n) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof8.7;
(g) the Comerica Debt and the Subordinated Debt;
(ho) Debt arising under Permitted Seller Notes issued as consideration in connection with a Permitted Acquisition, in an aggregate principal amount not to the Surety Agreements, provided that greater of (x) $10,000,000 and (y) 25.0% of Consolidated EBITDA for the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth most recently ended Test Period (calculated on Schedule 8.1(ia pro forma basis);
(p) [reserved];
(q) Debt consisting of unsecured Guarantees of the obligations of Unrestricted Subsidiaries or joint ventures; provided that the sum of (i) the aggregate amount of all such Debt outstanding pursuant to this clause (q) plus (ii) the aggregate amount of all Investments made pursuant to Section 8.7(n) shall not exceed the greater of (x) $15,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a pro forma basis);
(r) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed the greater of (x) $1,000,000 at 5,000,000 and (y) 10.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a pro forma basis); and
(s) additional unsecured Debt of the MLP Borrower and/or Finance Co. not otherwise described above, provided that (i) after giving pro forma effect to the incurrence of such Debt, the Borrowers are in compliance with the financial covenants set forth in Section 7.9 as of the end of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 7.1; (ii) no Default or Event of Default shall be continuing immediately before or after giving effect to the incurrence of such Debt; (iii) the terms of which Debt do not provide for a maturity date or weighted average life to maturity earlier than 91 days after the Latest Maturity Date, (iv) such Debt is not subject to any one time outstandingamortization 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 that is 91 days after the Latest Maturity Date and (iv) such Debt shall not include covenants that are more restrictive to the Credit Parties (as determined in good faith by the MLP Borrower), when taken as a whole, than the terms of this Agreement.
Appears in 1 contract
Limitation on Debt. CreateNo Credit Party will, nor will it permit any of its Subsidiaries to, contract, create, incur, assume or suffer permit to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders Debt arising under this Agreement and/or and the other Loan Documents;
(b) any Debt existing as of the Closing Date as referenced on Schedule 6.1(p) and Schedule 9.3 (and renewals, refinancings or extensions thereof on terms and conditions no less 62 68 favorable in any material respect to such Person than such existing Debt and in a principal amount not in excess of that outstanding as of the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing date of such renewal, refinancing or extension);
(c) Capital Lease obligations and Debt (incurred, in each case, to provide all or a portion of the purchase price or costs of construction of an asset or, in the case of a Sale and Leaseback Transaction, to finance the value of such asset owned by the Borrower or any of its Subsidiaries, provided that (i) the aggregate principal amount of such renewed or refinanced Debt when incurred shall not exceed the aggregate principal amount purchase price or cost of construction of such asset or, in the original Debt outstanding on case of a Sale and Leaseback Transaction, the Effective Date (less any principal payments and the amount fair market value of any commitment reductions made thereon on or prior to such renewal or refinancing)asset, (ii) the renewal or refinancing of no such Debt shall be on substantially refinanced for a principal amount in excess of the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) principal balance outstanding thereon at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (iiiii) the aggregate amount of all such Debt shall not exceed $1,000,000 15,000,000 at any one time outstanding;
(d) unsecured intercompany Debt of a Subsidiary of the Borrower to a Subsidiary of the Borrower;
(e) Debt and Obligations owing under Hedging Agreements relating to the Loans hereunder and other Hedging Agreements entered into in order to manage existing or anticipated interest rate, exchange rate or commodity price risks and not for speculative purposes;
(f) Debt owing under the Senior Subordinated Notes and the New Senior Notes not to exceed $315,000,000 in the aggregate principal at any time outstanding;
(g) Debt owing under the Senior Notes not to exceed $200,000,000 in the aggregate principal at any time outstanding;
(h) other unsecured Debt of the Borrower and its Subsidiaries which may be incurred in accordance with the terms of the Senior Subordinated Note Indenture and which does not exceed $15,000,000 in the aggregate at any time outstanding; and
(i) Support Obligations of Debt permitted under this Section 9.3.
Appears in 1 contract
Limitation on Debt. CreateThe Borrower shall not, and shall not permit any Subsidiary of the Borrower to, incur, assume assume, create or suffer to exist any Debt, exceptexcept for:
(a) Indebtedness in the case of any Credit Party to Agent and the Lenders Borrower:
(i) Debt under this Agreement and/or the other Loan Financing Documents;
(bii) any Debt existing on the Effective Date date hereof and set forth in on Schedule 8.1 attached hereto VI;
(iii) Debt representing a refinancing, replacement or refunding of Debt permitted by Section 5.07(a)(i), (ii), (iii), (vii), (viii) and any renewals or refinancing of such Debt (x); provided that that:
(iA) (x) the aggregate principal amount of such renewed Debt outstanding or refinanced Debt shall available will not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) available at the time of such renewal refinancing, replacement or refinancing no Default refunding (plus fees and expenses, including any premium and defeasance costs relating to such refinancing, replacement or Event of Default has occurred and is continuing or would result from refunding), (y) the renewal or refinancing final maturity of such DebtDebt is later than the Term Loan Termination Date (other than Debt that can be settled in the Borrower’s Capital Stock (other than Redeemable Stock); provided that such Debt may only be settled in cash prior to the Term Loan Termination Date up to an aggregate principal amount not to exceed $400,000,000 and not before the third anniversary of the Effective Date; provided further that the Debt being refinanced, replaced or refunded has a final maturity date on or prior to the Term Loan Termination Date) and (z) such Debt shall not contain any Payment Restriction more restrictive than the Payment Restrictions contained in the Debt being refinanced, replaced or refunded; and
(B) no obligor shall be liable for any such Debt except to the extent that it was liable for the Debt so refinanced, replaced or refunded.
(iv) Debt owing by the Borrower to a Consolidated Subsidiary of the Borrower so long as such Debt is subordinated on terms reasonably satisfactory to the Agent to the Debt of the Borrower under the Financing Documents;
(cv) any Lien permitted by Section 5.10 that constitutes Debt not otherwise permitted by this Section;
(vi) Letters of Borrowers credit, surety bonds, Guarantees and performance bonds supporting obligations of Subsidiaries so long as, after giving effect to such letters of credit, surety bonds, Guarantees and performance bonds (and the Investments represented thereby), the Borrower would be in compliance with Section 5.16;
(vii) other Debt, in the aggregate, not to exceed at any one time outstanding $225,000,000 so long as (x) the final maturity of such Debt shall in no event be on or prior to the Term Loan Termination Date and (y) such Debt shall not have any Subsidiary incurred scheduled amortization on or prior to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of Term Loan Termination Date.
(viii) other Debt so long as (x) immediately before and immediately after giving effect to the incurrence and application of the proceeds thereof (i) no Default or Event of Default shall have occurred and be continuing, (y) the Net Cash Proceeds from the incurrence of such Debt shall be applied as set forth in Section 2.10(b) to the extent so required and (iiz) the aggregate amount final maturity of all such Debt at shall in no event be on or prior to the Term Loan Termination Date;
(ix) Debt incurred as a bridge financing for a proposed Asset Sale, provided that (x) the only direct or contingent obligor in respect of such Debt is the holder of the asset that is the subject of such Asset Sale, (y) the interest rate applicable to such Debt does not exceed the then applicable market interest rate and (z) the Net Cash Proceeds from the incurrence of such Debt shall be applied as set forth in Section 2.10(b); and
(x) Debt incurred to refinance, replace or refund any one time outstanding of the obligations arising in respect of the Existing Trust Preferred Securities, provided that (including, without limitation, any x) the only direct or contingent obligor in respect of such Debt is the Borrower and (y) the final maturity of such Debt shall be later than the Term Loan Termination Date.
(b) in the case of the Borrower’s Subsidiaries:
(i) Guarantees of Debt of the type described in this Borrower under the Financing Documents, the Senior Secured Exchange Notes and Debt permitted by clause (ca)(iii), (a)(vii) or (a)(viii) above, the proceeds of which is set forth on Schedule 8.1 are applied to permanently reduce Total Bank Exposure or prepay the Senior Secured Exchange Notes (it being understood that if, after the date hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Subsidiary Guarantees the Debt on terms substantially the same or better than those in effect at the time of the original incurrence of Borrower under the Financing Documents, such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to Subsidiary may also Guarantee the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt Senior Secured Exchange Notes and the Subordinated Debt;
Debt permitted by clause (ha)(iii), (a)(vii) Debt arising under or (a)(viii) above, the Surety Agreements, provided that proceeds of which are applied to permanently reduce Total Bank Exposure or prepay the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(iSenior Secured Exchange Notes);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) Debt incurred by a Subsidiary:
(1) to finance the aggregate amount acquisition, development, construction, operation, maintenance (including modifications and upgrades to comply with applicable laws and regulations) or working capital requirements (including letters of all credit or guarantees to fund debt service reserve accounts or similar accounts or for the benefit of power purchase agreements or commodity hedging counterparties) of a Power Supply Business or other business owned, operated or managed (including on a joint basis with others), directly or indirectly, by the Borrower (an “AES Business”) or (2) to finance the acquisition of “greenfields” and the construction, operation, maintenance or working capital requirements (including modifications and upgrades to comply with applicable laws and regulations) or working capital requirements (including letters of credit or guarantees to fund debt service reserve accounts or similar accounts or for the benefit of power purchase agreements or commodity hedging counterparties) necessary to develop and construct such Debt shall not exceed $1,000,000 at any one time outstanding.“greenfields” and to operate them as an AES Business or (3) that constitutes Acquired Debt; and
Appears in 1 contract
Sources: Credit and Reimbursement Agreement (Aes Corporation)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to the Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers such Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,0002,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Subordinated Debt approved by the Agent and the Majority Lenders;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;; and
(h) Debt trade, utility or accounts payable arising under in the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion ordinary course of the construction projects set forth on Schedule 8.1(i)business;
(i) Debt to current and former employees of any Company incurred in the ordinary course of business or existing on the Effective Date arising from (i) deferred compensation, severance obligations or the equivalent or (ii) pension obligations, health and welfare retirement benefits or the equivalent;
(j) Debt representing installment insurance premiums of the Credit Parties owing to insurance companies in the ordinary course of business in an aggregate amount not exceeding $2,000,000 at any time outstanding;
(k) Debt arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(l) Debt in respect of bid, performance or surety bonds issued for the account of any Credit Party in the ordinary course of business, including guarantees or obligations of any Credit Party 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 not exceeding $25,000,000 at any time outstanding;
(m) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 5,000,000 at any one time outstanding; and
(n) any guaranties of Debt otherwise permitted under this Section 8.1.
Appears in 1 contract
Sources: Revolving Credit Agreement (Bridgepoint Education Inc)
Limitation on Debt. CreateThe Borrower shall not, and shall not permit any Subsidiary of the Borrower to, incur, assume assume, create or suffer to exist any Debt, exceptexcept for:
(a) Indebtedness in the case of any Credit Party to Agent and the Lenders Borrower:
(i) Debt under this Agreement and/or the other Loan Financing Documents;
(bii) any Debt existing on the Effective Date date hereof and set forth in on Schedule 8.1 attached hereto VI;
(iii) Debt representing a refinancing, replacement or refunding of Debt permitted by Section 5.07(a)(i), (ii), (iii), (vii) and any renewals or refinancing of such Debt (ix); provided that that:
(iA) (x) the aggregate principal amount of such renewed Debt outstanding or refinanced Debt shall available will not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) available at the time of such renewal refinancing, replacement or refinancing no Default refunding (plus fees and expenses, including any premium and defeasance costs relating to such refinancing, replacement or Event of Default has occurred and is continuing or would result from refunding), (y) the renewal or refinancing final maturity of such DebtDebt is later than the Initial Term Loan Termination Date (other than Debt that can be settled in the Borrower’s Capital Stock (other than Redeemable Stock); provided that such Debt may only be settled in cash prior to the Initial Term Loan Termination Date up to an aggregate principal amount not to exceed $400,000,000 and not before July 29, 2006; provided further that the Debt being refinanced, replaced or refunded has a final maturity date on or prior to the Initial Term Loan Termination Date) (z) (1) such Debt shall not contain any Payment Restriction more restrictive than the Payment Restrictions contained in the Debt being refinanced, replaced or refunded or (2) in the opinion of the Borrower, such Payment Restrictions are consistent with customary market terms for a financing of its nature and do not adversely affect the ability of the Borrower to meet its payment Obligations under the Financing Documents; and
(B) no obligor shall be liable for any such Debt except to the extent that it was liable for the Debt so refinanced, replaced or refunded, unless such liability in respect of such Debt would otherwise be permitted by Section 5.07(b);
(civ) Debt owing by the Borrower to a Consolidated Subsidiary of the Borrower so long as such Debt is subordinated on terms reasonably satisfactory to the Agent to the Debt of the Borrower under the Financing Documents;
(v) any Lien permitted by Section 5.10 that constitutes Debt not otherwise permitted by this Section;
(vi) Letters of Borrowers or any Subsidiary incurred credit, surety bonds, Guarantees and performance bonds supporting obligations of Subsidiaries so long as, after giving effect to finance such letters of credit, surety bonds, Guarantees and performance bonds (and the acquisition of fixed or capital assetsInvestments represented thereby), whether pursuant to a loan or a Capitalized Lease provided that both at the time of Borrower would be in compliance with Section 5.16;
(vii) other Debt so long as (x) immediately before and immediately after giving effect to the incurrence and application of the proceeds thereof (i) no Default or Event of Default shall have occurred and be continuing, and (iiy) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings final scheduled maturity of such Debt shall in no event be on terms substantially or prior to the same Initial Term Loan Termination Date and (z) such Debt shall not have any scheduled amortization on or better than those prior to the Initial Term Loan Termination Date in effect at the time an aggregate amount in excess of 10% of the original incurrence initial amount of such Debt;
(dviii) Debt under any Hedging Transactionsincurred as a bridge financing for a proposed Asset Sale, provided that (x) the only direct or contingent obligor in respect of such transaction Debt is entered into for risk management purposes the holder of the asset that is the subject of such Asset Sale, (y) the interest rate applicable to such Debt does not exceed the then applicable market interest rate and not for speculative purposes;(z) the Net Cash Proceeds from the incurrence of such Debt shall be applied as set forth in Section 2.10(b); and
(eix) Debt incurred to refinance, replace or refund any of the obligations arising from judgments or decrees not deemed to be a Default or Event in respect of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety AgreementsExisting Trust Preferred Securities, provided that (x) the Borrowers only direct or contingent obligor in respect of such Debt is the Borrower and (y) the final scheduled maturity of such Debt shall promptly terminate be later than the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following Initial Term Loan Termination Date; and
(b) in the completion case of the construction projects set forth on Schedule 8.1(iBorrower’s Subsidiaries:
(i) Guarantees of Debt of the Borrower under the Financing Documents, the Senior Secured Exchange Notes and Debt permitted by clause (a)(iii) or (a)(vii) above, the proceeds of which are applied to permanently reduce Total Bank Exposure or prepay the Senior Secured Exchange Notes (it being understood that if, after the date hereof, any Subsidiary Guarantees the Debt of the Borrower under the Financing Documents, such Subsidiary may also Guarantee the Senior Secured Exchange Notes and the Debt permitted by clause (a)(iii) or (a)(vii) above, the proceeds of which are applied to permanently reduce Total Bank Exposure or prepay the Senior Secured Exchange Notes);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) Debt incurred by a Subsidiary:
(1) to finance the aggregate amount acquisition, development, construction, operation, maintenance (including modifications and upgrades to comply with applicable laws and regulations) or working capital requirements (including letters of all credit or guarantees to fund debt service reserve accounts or similar accounts or for the benefit of power purchase agreements or commodity hedging counterparties) of a Power Supply Business or other business owned, operated or managed (including on a joint basis with others), directly or indirectly, by the Borrower (an “AES Business”) or (2) to finance the acquisition of “greenfields” and the construction, operation, maintenance or working capital requirements (including modifications and upgrades to comply with applicable laws and regulations) or working capital requirements (including letters of credit or guarantees to fund debt service reserve accounts or similar accounts or for the benefit of power purchase agreements or commodity hedging counterparties) necessary to develop and construct such Debt shall not exceed $1,000,000 at any one time outstanding.“greenfields” and to operate them as an AES Business or (3) that constitutes Acquired Debt; and
Appears in 1 contract
Sources: Credit and Reimbursement Agreement (Aes Corporation)
Limitation on Debt. Create, incur, assume or suffer to exist (a) The Borrower shall not Incur any Debt, except:
(a) Indebtedness including Acquisition Debt, unless after giving effect to the Incurrence of any Credit Party to Agent such Debt and the Lenders under this Agreement and/or receipt and application of the other Loan Documents;proceeds therefrom, the Fixed Charge Ratio of the Borrower would be equal to or greater than 2.0 to 1.
(b) any Debt existing on Notwithstanding the Effective Date foregoing, the Borrower may Incur each and set forth in Schedule 8.1 attached hereto and any renewals or refinancing all of such Debt (provided that the following:
(i) Debt issued in exchange for, or the aggregate proceeds of which are used to Refinance, Debt of the Borrower in an amount (or, if such new Debt provides for an amount less than the principal amount thereof to be due and payable upon a declaration of such renewed or refinanced Debt shall acceleration thereof, with an original issue price) not to exceed the aggregate amount so exchanged or Refinanced (plus accrued interest and fees and expenses related to such exchange or Refinancing), the amount so exchanged or Refinanced being equal to the lesser of (x) the principal amount or involuntary liquidation preference of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on so exchanged or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, Refinanced and (iiiy) if the Debt being exchanged or Refinanced was issued with an original issue discount, the accreted value thereof (as determined in accordance with GAAP) at the time of such renewal Refinancing; provided that such Debt of the Borrower will rank pari passu with or refinancing no Default expressly subordinated in right of payment to the Obligations and the Average Life of the new Debt shall be equal to or Event greater than the Average Life of Default has occurred and is continuing the Debt to be exchanged or would result from the renewal or refinancing of such DebtRefinanced;
(cii) any Debt of Borrowers the Borrower to any of its Subsidiaries and to any Joint Ventures in which the Borrower is a direct or indirect partner, shareholder, member or other participant if such Debt of the Borrower is expressly subordinated in right of payment to the Obligations; provided that any transfer of such Debt by a Subsidiary incurred or a Joint Venture (other than to finance another Subsidiary or Joint Venture) will be deemed to be an Incurrence of Debt unless (x) such Debt has an Average Life which is greater than that of the acquisition of fixed or capital assets, whether pursuant Borrower Indenture Securities and which extends to a loan date later than the then Final Maturity Date or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (iiy) the aggregate amount of all such Debt which has an Average Life which is equal to or less than that of the Borrower Indenture Securities or which extends to, or to a date earlier than, the then Final Maturity Date does not exceed $3 million;
(iii) Debt in an aggregate principal amount not to exceed $10 million at any one time outstanding;
(iv) Debt in respect of Currency Protection Agreements or Interest Rate Protection Agreements; and
(v) Debt outstanding as of the date of this Agreement. For purposes of determining any particular amount of Debt under this subsection 7.2, Guarantees of, or obligations with respect to letters of credit supporting, Debt otherwise included in the determination of such particular amount shall not be included. For purposes of determining compliance with the provisions of this subsection 7.2, in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above 66 61 clauses, the Borrower, in its sole discretion, shall classify such item of Debt and only be required to include the amount and type of such Debt in one of such clauses.
(c) Notwithstanding any other provision hereof, including without limitation any other provision of this subsection 7.2, the Borrower shall not Incur any Debt at any time unless (i) no payment or prepayment in respect of principal of such Debt (including, without limitation, any Debt payments in respect of any sinking fund) shall be due or can become due (other than as a result of the type described in this clause (cacceleration thereof) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only prior to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom then Final Maturity Date and (ii) the aggregate outstanding principal amount of all Debt Incurred by the Borrower at such Debt time (after giving effect to the Incurrence of such Debt) shall not exceed $1,000,000 at any one time outstanding540,000,000.
Appears in 1 contract
Limitation on Debt. Create(a) Holdings shall not, and shall not permit any Subsidiary to, directly or indirectly, create, incur, assume or suffer otherwise become liable with respect to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;.
(b) any Debt existing on This covenant shall not, however, prohibit the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt following (provided that collectively, “Permitted Debt”):
(i) the incurrence by Holdings or any Guarantor of Debt under the Senior Credit Facility (including Debt outstanding on the Issue Date) and any other Credit Facilities (including as Pari Passu Debt and Additional Notes); provided that the aggregate principal amount of such renewed or refinanced Debt outstanding under Credit Facilities at any time shall not exceed the sum of (x) $992.0 million, being the aggregate principal amount of incurred under the original Debt outstanding Senior Credit Facility on the Effective Date (less any Issue Date, plus the principal payments and the amount of any commitment reductions made Debt issued as payment of interest in kind thereon on or prior pursuant to such renewal or refinancing)the terms thereof and outstanding thereunder, (ii) the renewal or refinancing less any amount of such Debt that is permanently repaid as provided under Section 4.09) (so long as the corresponding commitments are cancelled), plus (y) $100.0 million plus the principal amount of any Debt issued as payment of interest in kind thereon pursuant to the terms thereof and outstanding thereunder; provided that in connection with Debt incurred pursuant to clause (y):
(A) as of the date of the incurrence of such Debt and after giving effect thereto, no Event of Default exists;
(B) such Debt is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining obligations under this Indenture and the Senior Credit Facility, or is unsecured; provided that (1) to the extent that such Debt is not in the form of Additional Notes or Debt under the Senior Credit Facility, any such Debt that is secured by the Collateral on a pari passu or junior basis shall be subject to an Acceptable Intercreditor Agreement, (2) if such Debt is secured, it is not secured by any assets other than the Collateral, and (3) if such Debt is guaranteed, it is not guaranteed by any Person other than the Issuers or Guarantors;
(C) the Weighted Average Life to Maturity of such Debt is equal to or greater than the Weighted Average Life to Maturity of the Notes at the time of incurrence unless (1) such Debt consists of a revolving Credit Facility provided by a lender not party to the Senior Credit Facility immediately prior to the entry into commitments with respect to such revolving Credit Facility, or (2) if such lender is an existing lender under the Senior Credit Facility, participation is offered to all existing lenders under the Senior Credit Facility, on substantially the same or better terms terms;
(D) such Credit Facility has covenant and event of default provisions no more onerous, taken as a whole, than those set forth in effect with respect to such Debt on the Effective Datethis Indenture, and shall otherwise be in compliance with unless this Agreement, and (iii) Indenture is amended at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing incurrence of such Debt to include such provisions (other than covenants and event of default provisions consistent with the Senior Credit Facility (as in effect on the Issue Date));
(E) to the extent such Credit Facility is in the form of notes, prior to incurring such Debt, Holdings shall be required to offer ratable participation in such Credit Facility to the Holders (which offer may be through a posting to its secure website described in Section 4.23); provided that such offer shall be deemed to have been declined by the offeree if no written response is provided to Holdings within five Business Days of the offer; provided, further, that if any beneficial holder of the Notes declines to participate in such Credit Facility to the extent of its full pro rata allocation, then such unsubscribed portion shall be reoffered to beneficial holders of the Notes who subscribed for their pro rata participation in such Credit Facility; provided, further, that such reoffer shall be deemed to have been declined by the reofferee if no written response is provided to Holdings within five Business Days of the reoffer; and provided, further, still, that if any amount of such Credit Facility remains unsubscribed following such reoffer, then the entire aggregate principal amount such Credit Facility may be offered to parties other than beneficial holders of the Notes; and
(F) the use of proceeds of such Debt is limited to (1) working capital purposes, (2) capital expenditures, (3) Permitted Investments, (4) Restricted Payments permitted by Section 4.08(c)(xiv), and (5) general corporate purposes; provided that, for the avoidance of doubt, Holdings and its Subsidiaries shall not be permitted to use the proceeds of any such Debt incurred pursuant to clause (y) of Section 4.06(b)(i) for any other Restricted Payment or for the purpose of refinancing any other Debt;
(cii) any (A) Debt of Borrowers any of the Issuers to any Guarantor and/or of any Guarantor to any Issuer or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease other Guarantor; provided that both at the time any such Debt must be subordinated in right of and immediately after giving effect payment to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth Notes on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debtcustomary terms;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 1 contract
Sources: Indenture (Transact LTD)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, create, issue, Incur, assume, guarantee or in any manner become directly or indirectly liable with respect to or otherwise become responsible for, contingently or otherwise, the payment of any Credit Party (individually and collectively, to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) “Incur” or, as appropriate, an “Incurrence”), any Debt existing on (including any Acquired Debt); provided that the Effective Date and set forth in Schedule 8.1 attached hereto Parent Guarantor, each Issuer and any renewals or refinancing Restricted Subsidiary shall be permitted to Incur Debt (including Acquired Debt) if in each case (i) after giving effect to the Incurrence of such Debt (provided that (i) and the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount application of the original Debt outstanding proceeds thereof, on the Effective Date (less any principal payments a pro forma basis, no Default or Event of Default would occur or be continuing and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred Incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) This covenant shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default the Notes and the New Unsecured Notes issued on the Issue Date;
(ii) the Incurrence by the Parent Guarantor or Event any Restricted Subsidiary of Default shall have occurred and be continuing, Debt under Credit Facilities in an aggregate principal amount not to exceed the greater of (i) €350,000,000 and (ii) an amount equal to (I) 85% of Total Receivables plus 60% of Total Inventories less (II) €250,000,000;
(iii) any Existing Debt of the Parent Guarantor or any Restricted Subsidiary (other than Debt described in clauses (i) and (ii) of this paragraph (b)) and any Debt of the Acquired Business existing on the date of completion of the Acquisition;
(iv) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of intercompany Debt between the Parent Guarantor and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that:
(A) if an Issuer or a Guarantor is the obligor on any such Debt, unless required by a Credit Facility and only to the extent legally permitted, such Debt must be unsecured (except in respect of the intercompany current liabilities Incurred in the ordinary course of business in connection with cash management, cash pooling, tax and accounting operations of the Parent Guarantor and its Restricted Subsidiaries); and
(B) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Parent Guarantor or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Parent Guarantor or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Parent Guarantor or any Restricted Subsidiary of Debt of the Parent Guarantor or any Restricted Subsidiary to the extent that the guaranteed Debt was permitted to be incurred by another provision of this Section 4.06 that are made in accordance with the provisions of Section 4.15;
(vi) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property, plant, equipment or other assets used in the Parent Guarantor’s or any Restricted Subsidiary’s business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (vi) and still outstanding shall not in the aggregate exceed the greater of €150,000,000 and 2.0% of Total Assets; and provided, further, that the total principal amount of all any Debt Incurred in connection with an acquisition or development permitted under this clause (vi) did not in each case at the time of Incurrence exceed (A) the Fair Market Value of the acquired or constructed asset or improvement so financed or (B) in the case of an uncompleted constructed asset, the amount of the asset to be constructed, as determined on the date the contract for construction of such asset was entered into by the Parent Guarantor or the relevant Restricted Subsidiary (including, in each case, any reasonable related fees and expenses Incurred in connection with such acquisition, construction or development);
(vii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt at any one time outstanding (arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock (other than guarantees or similar credit support given by the Parent Guarantor or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition); provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofvii) shall not at no time exceed $5,000,000the net proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(dviii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under any Commodity Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(eix) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt arising from judgments or decrees under Currency Agreements entered into in the ordinary course of business and not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(fx) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt owing to a Person that is a Credit Party, but only to under Interest Rate Agreements entered into in the extent permitted under Section 8.7 hereofordinary course of business and not for speculative purposes;
(gxi) the Comerica Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the Subordinated Debtborrowing of money or the obtaining of advances or credit;
(hxii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary arising under from (A) the Surety Agreementshonoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of Incurrence, (B) bankers’ acceptances, performance, surety, judgment, completion, payment, appeal or similar bonds, instruments or obligations, (C) completion guarantees, advance payment, customs, VAT or other tax guarantees or similar instruments provided or letters of credit obtained by the Borrowers shall promptly terminate Parent Guarantor or any Restricted Subsidiary in the Liberty Mutual Indemnity Agreement ordinary course of business, and any other Bond Documents related thereto following (D) the completion financing of insurance premiums in the construction projects set forth on Schedule 8.1(i)ordinary course of business;
(xiii) any Debt of the Parent Guarantor or any Restricted Subsidiary Incurred pursuant to any Permitted Receivables Financing;
(xiv) the Incurrence by a Person of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in, paragraphs (a), (b)(i) and (b)(iii), this paragraph (b)(xiv) and paragraphs (b)(xviii), (b)(xix) and (b)(xx) of this Section 4.06, as the case may be;
(xv) guarantees by the Parent Guarantor or a Restricted Subsidiary of Debt Incurred by Permitted Joint Ventures in an aggregate principal amount at any one time outstanding not to exceed an amount equal to €75,000,000;
(xvi) cash management obligations and Debt in respect of netting services, pooling arrangements or similar arrangements in connection with cash management in the ordinary course of business consistent with past practice;
(xvii) (i) additional unsecured take-or-pay obligations in the ordinary course of business, (ii) customer deposits and advance payments in the ordinary course of business received from customers for goods or services purchased in the ordinary course of business and (iii) manufacturer, vendor financing, customer and supply arrangements in the ordinary course of business;
(xviii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (i) through (xvii) above and clauses (xix) and (xx) below) in an aggregate principal amount at any one time outstanding not to exceed, together with any Permitted Refinancing Debt in respect thereof, the greater of €265,000,000 and 3.5% of Total Assets;
(xix) Debt of any Person (x) Incurred and outstanding on the date on which such Person becomes a Restricted Subsidiary of the Parent Guarantor or another Restricted Subsidiary of the Parent Guarantor or is merged, consolidated, amalgamated or otherwise described abovecombined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Parent Guarantor or any Restricted Subsidiary or (y) Incurred to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Parent Guarantor or a Restricted Subsidiary; provided, provided however, with respect to each of clause (xix)(x) and (xix)(y), that both at the time of and immediately such acquisition or other transaction (1) the Parent Guarantor would have been able to Incur €1.00 of additional Indebtedness pursuant to Section 4.06(a) after giving effect to the incurrence thereof Incurrence of such Indebtedness pursuant to this clause (ixix) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii2) the aggregate amount Fixed Charge Coverage Ratio of all the Parent Guarantor and its Restricted Subsidiaries would not be less than it was immediately prior to giving pro forma effect to such Debt shall not exceed $1,000,000 at any one time outstanding.acquisition or other transaction; and
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness Capitalized terms used in this Section 7.3 and in Section 7.4 but not defined herein shall have the meanings given such terms in the Company's Indenture for the 10-7/8% Senior Discount Notes due 2008 in the form as of any Credit Party to Agent and the Lenders under date of this Agreement and/or (the other Loan Documents;
(b) "Senior Notes Indenture"). So long as at least 50% of the Convertible Stock issued hereunder remains outstanding, the Company will not, and will not permit any Restricted Subsidiary to, Incur any Debt existing on without the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount prior consent of the original holders of a majority of the shares of Convertible Stock outstanding at such time; PROVIDED, HOWEVER, that the Company may Incur Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior may permit a Restricted Subsidiary to such renewal or refinancing), (ii) the renewal or refinancing of such Incur Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) if at the time of such renewal or refinancing no Default or Event of Default has occurred Incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect thereto the Consolidated Cash Flow Ratio would be less than 6.5 to 1.0. In making the incurrence thereof foregoing calculation, there shall be excluded from Debt for purposes of calculating the Consolidated Cash Flow Ratio all Debt of the Company and its Restricted Subsidiaries incurred pursuant to clause (i) no Default or Event of Default shall have occurred the definition of Permitted Debt, and pro forma effect will be continuing, given to (i) the Incurrence of the Debt to be incurred and the application of the net proceeds therefrom to refinance other Debt and (ii) the acquisition (whether by purchase, merger or otherwise) or disposition (whether by sale, merger or otherwise) of any company, entity or business acquired or disposed of by the Company or its Restricted Subsidiaries, as the case may be, since the first day of the most recent full fiscal quarter, as if such acquisition or disposition occurred at the beginning of the most recent full fiscal quarter. Notwithstanding the foregoing limitation, the Company may, and may permit its Restricted Subsidiaries to, Incur the following additional Debt ("Permitted Debt"):
(i) Debt under Bank Credit Facilities in an aggregate amount of all such Debt not to exceed $150.0 million at any one time outstanding, less any amounts by which the commitments thereunder are permanently reduced pursuant to the provisions thereof as described under the "Limitation on Certain Asset Sales" covenant in the Company's Senior Notes Indenture;
(ii) other Debt of the Company or any Restricted Subsidiary outstanding on the date of the Senior Notes Indenture and listed on Schedule A thereto;
(iii) Debt owed by the Company to any wholly owned Restricted Subsidiary or owed by any wholly owned Restricted Subsidiary to the Company or any other wholly owned Restricted Subsidiary (provided that such Debt is held by the Company or such wholly owned Restricted Subsidiary);
(iv) Debt represented by the Notes;
(v) Debt Incurred or Incurrable in respect of letters of credit, bankers' acceptances or similar facilities not to exceed $5.0 million at any one time outstanding;
(vi) Capital Lease Obligations whose Attributable Value does not exceed $5.0 million at any one time outstanding;
(vii) Debt of the Company or any Restricted Subsidiary consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, any shares of Capital Stock;
(viii) Debt of the type described Company or any Restricted Subsidiary (including trade letters of credit) in this clause (c) which is set forth on Schedule 8.1 hereof) shall respect of purchase money obligations, provided that the aggregate amount of such Debt outstanding at any time does not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt5.0 million;
(dix) Debt under any Hedging Transactionsarising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such transaction Debt is entered into for risk management purposes and not for speculative purposes;extinguished within two Business Days of its Incurrence; and
(ex) any renewals, extensions, substitutions, refinancings or replacements (each, for purposes of this clause, a "refinancing") of any outstanding Debt, other than Debt arising from judgments Incurred pursuant to clause (i), (vii) or decrees (ix) of this definition, including any successive refinancings thereof, so long as (A) any such new Debt is in a principal amount that does not deemed exceed the principal amount (or, if such Debt being refinanced provides for an amount less than the principal amount thereof to be due and payable upon a Default or Event declaration of Default under subsection (gacceleration thereof, such lesser amount as of the date of determination) so refinanced, plus the amount of Section 9.1;
(f) Debt owing any premium required to a Person that is a Credit Party, but only be paid in connection with such refinancing pursuant to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion terms of the construction projects set forth on Schedule 8.1(i);
Debt refinanced or the amount of any premium reasonably determined by the Company as necessary to accomplish such refinancing by means of a tender offer or privately negotiated repurchase, plus the amount of expenses Incurred by the Company in connection with such refinancing, and (iB) additional unsecured such refinancing Debt does not otherwise described abovehave an Average Life less than the Average Life of the Debt being refinanced and does not have a final scheduled maturity earlier than the final scheduled maturity of the Debt being refinanced, provided that both or permit redemption at the time option of and immediately after giving effect to the incurrence thereof (i) no Default or Event holder earlier than the earliest date of Default shall have occurred and be continuing or result therefrom and (ii) redemption at the aggregate amount option of all such the holder of the Debt shall not exceed $1,000,000 at any one time outstandingbeing refinanced.
Appears in 1 contract
Sources: Stock Purchase Agreement (Arch Communications Group Inc /De/)
Limitation on Debt. Create, Grant Recipient shall not incur, assume or suffer permit to exist any Debt, except:
indebtedness for borrowed money (a) Indebtedness or act as a guarantor of any Credit Party such indebtedness) whether secured or unsecured before Substantial Completion, or otherwise encumber the assets constituting the Port Improvements before Substantial Completion, in each case, without the prior written consent of NYSERDA, such consent not to Agent and be unreasonably withheld, provided that no such consent shall be required if the Lenders financing agreements under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals which Grant Recipient incurs or refinancing of guarantees such Debt (provided indebtedness provide that (i) if the aggregate principal amount exercise by lender (or any trustee or agent on behalf of such renewed lender) of a remedy thereunder would result in the cessation of the completion of the Port Improvements or refinanced Debt the foreclosure and sale of the existing Port Improvements, such lender (or such trustee or agent) shall not exceed the aggregate principal amount exercise such remedy without first providing NYSERDA not less than thirty (30) days (which period of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt time shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect addition to the incurrence thereof (icure period provided to Grant Recipient thereunder) no Default or Event of Default shall have occurred and be continuing, in which to cure the applicable default(s) and (ii) in the aggregate amount case of all any default under such Debt at financing agreements, Grant Recipient shall have the right to prepay the outstanding amounts thereunder to cure any one time outstanding (includingsuch defaults, without limitation, after which any Debt related lien or other security interest shall be released. In the event that NYSERDA elects to cure a default of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described aboveof this Section 5.04, Grant Recipient shall cooperate with NYSERDA so that NYSERDA may use the funds available to it under Section 3 of the Sponsor Guarantee to cure any such default and pursue Substantial Completion. Any lien, mortgage or other encumbrance or security provided that both at the time of and immediately after giving effect to the incurrence thereof by Grant Recipient under any financing which complies with this Section 5.04 (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) (the aggregate amount indebtedness under any such financing, “Qualifying Debt”) shall be a “Permitted Lien” hereunder. Grant Recipient further agrees that it shall deliver a copy of all any such Qualifying Debt documentation within three (3) Business Days of execution thereof and shall promptly deliver to NYSERDA copies of any notice of default received by Grant Recipient in connection therewith. ▇▇▇▇▇ Recipient agrees to cooperate with NYSERDA to determine how to prevent the exercise of any such remedy which may result in termination of the work to complete the Port Improvements. NYSERDA agrees and acknowledges that the terms of this Section 5.04 shall not exceed $1,000,000 apply (A) to any indebtedness incurred by Grant Recipient (in whole or in part) in respect of the substation site, any portion of the Port Improvements necessary or useful for the operation of the substation, any related access easements located at SBMT or to any one time outstandingpledge, leasehold mortgage or other lien or security interest provided to any lender (or any trustee or agent of any such lender) in respect of any of the foregoing, (B) to any pledge of revenue to be received by Grant Recipient after Substantial Completion or to the pledge of any agreement under which Grant Recipient may receive such revenue, (C) to any obligations, contingent or otherwise, as an account party or applicant under or in respect of bankers’ acceptances, letters of credit, surety bonds, warehouse receipt or similar facilities entered into by Grant Recipient in the ordinary course of business, (D) to any unsecured indebtedness owed by Grant Recipient to any affiliate or equity holder or to any indebtedness reflecting non-cash intercompany allocations of overhead and other parent-level costs or (E) to the NYGB Financing Agreement and any indebtedness incurred or collateral provided thereunder, and, in each case of the foregoing clauses (A) – (E), replacements or refinancings of any such indebtedness. NYSERDA and Grant Recipient also agree that, if the Guarantors are not otherwise in material breach of their obligations under the Sponsor Guarantee, upon the deployment of capital toward, or the release of funds in respect of, an Alternative Investment, in each case, in accordance with Section 3 of the Sponsor Guarantee, the terms of this Section 5.04 shall no longer apply.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist The Company shall not Incur any Debt, except:
(a) Indebtedness and shall not permit any Subsidiary of any Credit Party the Company to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) Incur any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)unless, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the receipt and application of the proceeds thereof, (i) no Default the Consolidated EBITDA to Interest Ratio of the Company for the last four full fiscal quarters for which quarterly or Event of Default shall have occurred and annual financial statements are available would be continuing, greater than 1.3 to 1 and (ii) the Consolidated Adjusted Net Worth of the Company would be greater than the Minimum Adjusted Net Worth of the Company. Notwithstanding the foregoing limitation, the Company or any Subsidiary of the Company may Incur the following Debt:
(i) Debt Incurred by the Company under its Guarantee of the FCRPC Credit Agreement or by any Subsidiary of the Company under the FCRPC Credit Agreement in an aggregate principal amount of all such Debt at any one time outstanding not to exceed $350 million, and any renewal, extension, refinancing or refunding thereof (including, without limitation, any Debt the replacement of the type described banks under the FCRPC Credit Agreement with a new group of banks) in this clause (c) which is set forth on Schedule 8.1 hereof) shall an amount which, together with any amount remaining outstanding or available under the FCRPC Credit Agreement, does not exceed $5,000,000, and any renewals 350 million; provided that such refinancing or refinancings of such refunding Debt on terms substantially does not have a Weighted Average Life that is less than the same or better than those in effect at the time Weighted Average Life of the original incurrence of such DebtDebt being refinanced or refunded;
(dii) Debt under any Hedging TransactionsPerformance guarantees and performance bonds, provided that such transaction is entered into for risk management purposes surety bonds and not for speculative purposesappeal bonds in each case incurred in the ordinary course of business and consistent with past practices;
(eiii) Debt arising from judgments or decrees not deemed to be a Default or Event (other than Debt described in another clause of Default under subsection (gthis paragraph) outstanding on the date of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion original issuance of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately Securities after giving effect to the incurrence application of the proceeds of the Securities;
(iv) Debt owed by the Company to any Wholly Owned Subsidiary of the Company for which fair value has been received or Debt owed by a Subsidiary of the Company to the Company or a Wholly Owned Subsidiary of the Company; provided, however, that (a) any such Debt owing by the Company to a Wholly Owned Subsidiary shall be Subordinated Debt evidenced by an intercompany promissory note and (b) upon either (1) the transfer or other disposition by such Wholly Owned Subsidiary or the Company of any Debt so permitted to a Person other than the Company or another Wholly Owned Subsidiary of the Company or (2) the issuance (other than directors' qualifying shares), sale, lease, transfer or other disposition of shares of Capital Stock (including by consolidation or merger) of such Wholly Owned Subsidiary to a Person other than the Company or another such Wholly Owned Subsidiary, the provisions of this clause (iv) shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred at the time of such transfer or other disposition;
(v) Debt Incurred by a Person prior to the time (A) such Person became a Subsidiary of the Company, (B) such Person merged into or consolidated with a Subsidiary of the Company or (C) another Subsidiary of the Company merged into or consolidated with such Person (in a transaction in which such Person became a Subsidiary of the Company) which Debt was not Incurred in anticipation of such transaction and was outstanding prior to such transaction, provided that after giving pro forma effect to such transaction and treating any Debt as having been Incurred at the time of such transaction, the Company could Incur at least $1.00 of additional Debt pursuant to the limitations set forth in the first paragraph of this covenant;
(vi) Development Debt Incurred by the Company or any Subsidiary of the Company; provided that the Incurrence of all such Development Debt would have been permitted under the limitations set forth in the first paragraph of this covenant on the date that the first $1.00 of such Debt was Incurred (the "Development Start Date") determined as if all such Development Debt had been incurred on the Development Start Date; provided, further that, if all such Development Debt could be Incurred by the Company or any Subsidiary of the Company on the Development Start Date in accordance with the immediately preceding proviso, then individual borrowings or draw downs in an aggregate amount of such Development Debt shall not be subject to the requirements of the first paragraph of this covenant;
(vii) Debt Incurred by the Company or any of its Subsidiaries consisting of Permitted Interest Rate, Currency or Commodity Price Agreements;
(viii) Debt which is exchanged for or the proceeds of which are used to refinance or refund, or any extension or renewal of, outstanding Debt Incurred pursuant to the preceding paragraph or clauses (iii), (v) or (vi) of this paragraph (each of the foregoing, a "refinancing") in an aggregate principal amount not to exceed the principal amount of the Debt so refinanced plus the amount of any premium required to be paid in connection with such refinancing pursuant to the terms of the Debt so refinanced or the amount of any premium reasonably determined by the Company or the relevant Subsidiary as necessary to accomplish such refinancing by means of a tender offer or privately negotiated repurchase, plus the expenses of the Company or the Subsidiary, as the case may be, incurred in connection with such refinancing; provided, however, that (A) in the case of any refinancing of Debt which is subordinated in right of payment to the Securities, the refinancing Debt is Incurred by the Company and constitutes Subordinated Debt; (B) the refinancing Debt by its terms, or by the terms of any agreement or instrument pursuant to which such Debt is issued, (1) does not have a Weighted Average Life less than the Weighted Average Life of the Debt being refinanced and does not have a maturity earlier than the final stated maturity of the Debt being refinanced and (2) does not permit redemption or other retirement (including pursuant to an offer to purchase) of such Debt at the option of the holder thereof prior to the final stated maturity of the Debt being refinanced, other than a redemption or other retirement at the option of the holder of such Debt (including pursuant to an offer to purchase) which is conditioned upon provisions substantially similar to those described under Section 1018 and Section 1019; and (C) in the case of any refinancing of Debt Incurred by the Company, the refinancing Debt may be Incurred only by the Company, and in the case of any refinancing of Debt Incurred by a Subsidiary, the refinancing Debt may be Incurred only by such Subsidiary; provided, further, that Debt Incurred pursuant to this clause (viii) may not be Incurred more than 45 days prior to the application of the proceeds to repay the Debt to be refinanced; and
(ix) Debt Incurred by the Company or any Subsidiary of the Company not otherwise permitted to be Incurred pursuant to clauses (i) no Default or Event through (viii) above, which, together with any other outstanding Debt Incurred pursuant to this clause (ix), has an aggregate principal amount not in excess of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 50 million at any one time outstanding.
Appears in 1 contract
Limitation on Debt. CreateThe Company shall not, and shall not permit any Restricted Subsidiary to, create, issue, assume, guarantee or in any manner become directly or indirectly liable for the payment of, or otherwise incur (collectively, "incur"), assume any Debt (including Acquired Debt and the issuance of Disqualified Stock), except that the Company may incur Debt or suffer issue Disqualified Stock if, on the date of such incurrence or issuance and after giving effect thereto, the Consolidated Leverage Ratio does not exceed 2.0 to exist any 1.0. Notwithstanding the foregoing, the Company may, and may permit its Restricted Subsidiaries to, incur the following Debt ("Permitted Debt, except:"):
(ai) Indebtedness Permitted Warehouse Debt of the Company or any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan DocumentsRestricted Subsidiary;
(bii) Debt of the Company or any Debt existing Restricted Subsidiary outstanding on the Effective Date and set forth in Schedule 8.1 attached hereto and Closing Date;
(iii) Debt owed by the Company to any renewals Restricted Subsidiary or refinancing of such Debt owed by any Restricted Subsidiary to the Company or any other Restricted Subsidiary (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially is held by the same Company or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such DebtRestricted Subsidiary);
(civ) Debt represented by the Notes and any guarantees thereof by Restricted Subsidiaries;
(v) Debt of Borrowers the Company or any Restricted Subsidiary in respect of Hedging Obligations incurred to finance in the ordinary course of business;
(vi) either (A) Capitalized Lease Obligations of the Company or any Restricted Subsidiary or (B) Debt under purchase money mortgages or secured by purchase money security interests so long as (x) such Debt is not secured by any property or assets of the Company or any Restricted Subsidiary other than the property and assets so acquired and (y) such Debt is created within 60 days of the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease the related property; provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt under clauses (A) and (B) does not exceed in the aggregate $5 million at any one time outstanding outstanding;
(vii) Debt of the Company or any Restricted Subsidiary consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, any Debt shares of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such DebtCapital Stock;
(dviii) Acquired Debt under any Hedging Transactionsof a Person, provided that other than Debt incurred in connection with, or in contemplation of, such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising Person becoming a Restricted Subsidiary or the acquisition of assets from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Partysuch Person, but only to as the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreementscase may be, provided that the Borrowers shall promptly terminate Company on a pro forma basis could incur $1.00 of additional Debt (other than Permitted Debt) pursuant to the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion first paragraph of the construction projects set forth on Schedule 8.1(i)this Section;
(iix) additional unsecured Debt of the Company, not otherwise described abovepermitted by any other clause of this definition, provided that both at the time of and immediately after giving effect in an aggregate principal amount not to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 20 million at any one time outstanding;
(x) Debt incurred under one or more working capital facilities in an amount not to exceed $10 million at any one time outstanding;
(xi) Debt of the Company or any Restricted Subsidiary, which Debt is in the form of a guarantee and is incurred in connection with a securitization or sale of Receivables; provided, that the Company has concluded (as determined in good faith by the Board of Directors of the Company) that the incurrence of such Debt is necessary to obtain an investment grade rating for other Debt issued in connection with such securitization or sale of Receivables; and
(xii) any renewals, extensions, substitutions, refinancings or replacements (each, for purposes of this clause, a "refinancing") of any outstanding Debt, other than Debt incurred pursuant to clause (i), (vi), (ix), (x) or (xi) of this definition, including any successive refinancings thereof, so long as (A) any such new Debt is in a principal amount that does not exceed the principal amount so refinanced, plus the amount of any premium required to be paid in connection with such refinancing pursuant to the terms of the Debt refinanced or the amount of any premium reasonably determined by the Company as necessary to accomplish such refinancing, plus the amount of the expenses of the Company incurred in connection with such refinancing, (B) in the case of any refinancing of Subordinated Debt, such new Debt is made subordinate to the Notes at least to the same extent as the Debt being refinanced and (C) such refinancing Debt does not have an Average Life less than the Average Life of the Debt being refinanced and does not have a final scheduled maturity earlier than the final scheduled maturity, or permit redemption at the option of the holder earlier than the earliest date of redemption at the option of the holder, of the Debt being refinanced.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to the Agent and the Lenders under this Agreement and/or the other Loan Documentsor any Lender;
(b) any Debt existing on the Sixth Amendment Effective Date and set forth in Schedule 8.1 7.1 attached hereto and any renewals or refinancing of such Permitted Refinancing Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers the Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, or any Permitted Refinancing Debt thereof, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) other than in the case of a refinancing, such Debt is incurred within 180 days of the acquisition thereof and (iii) the aggregate principal amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof7.1 hereto) shall not exceed $5,000,000, and any renewals or refinancings 30,000,000;
(d) the Debt of the Credit Parties under the Senior Loan Documents in the aggregate principal amount not to exceed $30,000,000 so long as such Debt on terms substantially the same or better than those in effect at the time and all other obligations of the original incurrence of such Credit Parties in connection therewith are subject to the Specified Subordination Agreement;
(e) Subordinated Debt;
(df) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(eg) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.18.1(g);
(fh) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g7.6(d) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(ior 7.6(m);
(i) Debt incurred in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards (including so-called “procurement cards” or “P-cards”) or other similar cash management services, in each case, incurred in the ordinary course of business;
(j) reimbursement obligations with respect to Cash Secured L/Cs; provided, that the aggregate face amount of all Cash Secured L/Cs shall not exceed $18,000,000 at any time; and
(k) additional unsecured Debt not otherwise described abovepermitted under this Section 7.1, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 7,500,000 at any one time outstanding.
Appears in 1 contract
Limitation on Debt. Create(a) The Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer in any manner become directly or indirectly liable with respect to exist any Debtor otherwise become responsible for, except:
contingently or otherwise, the payment of (a) Indebtedness of any Credit Party individually and collectively, to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) “incur” or, as appropriate, an “incurrence”), any Debt existing on (including any Acquired Debt); provided that the Effective Date and set forth in Schedule 8.1 attached hereto Parent Guarantor, each Issuer and any renewals or refinancing Restricted Subsidiary shall be permitted to incur Debt (including Acquired Debt) if in each case (i) after giving effect to the incurrence of such Debt (provided that (i) and the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount application of the original Debt outstanding proceeds thereof, on the Effective Date (less any principal payments a pro forma basis, no Default or Event of Default would occur or be continuing and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) Section 4.06(a) shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default the Notes issued on the Issue Date;
(ii) the incurrence by the Parent Guarantor or Event any Restricted Subsidiary of Default shall have occurred and be continuing, Debt under Credit Facilities in an aggregate principal amount not to exceed the greater of (i) $700,000,000 and (ii) an amount equal to (I) 85.0% of Total Receivables plus 70.0% of Total Inventories less (II) $275,000,000;
(iii) any Existing Debt of the Parent Guarantor or any Restricted Subsidiary (other than Debt described in clauses (i) and (ii) of this Section 4.06(b));
(iv) the incurrence by the Parent Guarantor or any Restricted Subsidiary of intercompany Debt between the Parent Guarantor and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that:
(A) if an Issuer or a Guarantor is the obligor on any such Debt, unless required by a Credit Facility and only to the extent legally permitted, such Debt must be unsecured (except in respect of the intercompany current liabilities incurred in the ordinary course of business in connection with cash management, cash pooling, tax and accounting operations of the Parent Guarantor and its Restricted Subsidiaries); and
(B) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Parent Guarantor or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Parent Guarantor or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Parent Guarantor or any Restricted Subsidiary of Debt of the Parent Guarantor or any Restricted Subsidiary to the extent that the guaranteed Debt was permitted to be incurred by another provision of this Section 4.06;
(vi) the incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property or assets, in each case, incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property, plant, equipment or other assets used in the Parent Guarantor’s or any Restricted Subsidiary’s business (including any reasonable related fees or expenses incurred in connection with such acquisition or development); provided that the principal amount of such Debt so incurred when aggregated with other Debt previously incurred in reliance on this clause (vi) and still outstanding shall not in the aggregate exceed the greater of $510,000,000 and 6.0% of Total Assets; and provided, further, that the total principal amount of all any Debt incurred in connection with an acquisition or development permitted under this clause (vi) did not in each case at the time of incurrence exceed (A) the Fair Market Value of the acquired or constructed asset or improvement so financed or (B) in the case of an uncompleted constructed asset, the amount of the asset to be constructed, as determined on the date the contract for construction of such asset was entered into by the Parent Guarantor or the relevant Restricted Subsidiary (including, in each case, any reasonable related fees and expenses incurred in connection with such acquisition, construction or development);
(vii) the incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt at any one time outstanding (arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock (other than guarantees or similar credit support given by the Parent Guarantor or any Restricted Subsidiary of Debt incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition); provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofvii) shall not at no time exceed $5,000,000the net proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(dviii) the incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under any Commodity Hedging Transactions, provided that such transaction is entered into for risk management purposes and Agreements not for speculative purposes;
(eix) the incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt arising from judgments or decrees under Currency Agreements not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(fx) the incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereofInterest Rate Agreements not for speculative purposes;
(gxi) the Comerica incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the Subordinated Debtborrowing of money or the obtaining of advances or credit;
(hxii) the incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary arising under from (A) the Surety Agreementshonoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of incurrence, (B) bankers’ acceptances, performance, surety, judgment, completion, payment, appeal or similar bonds, instruments or obligations, (C) completion guarantees, advance payment, customs, VAT or other tax guarantees or similar instruments provided or letters of credit obtained by the Borrowers shall promptly terminate Parent Guarantor or any Restricted Subsidiary in the Liberty Mutual Indemnity Agreement ordinary course of business, and (D) the financing of insurance premiums in the ordinary course of business;
(xiii) any other Bond Documents related thereto following the completion Debt of the construction projects set forth on Schedule 8.1(iParent Guarantor or any Restricted Subsidiary incurred pursuant to any Permitted Receivables Financing;
(xiv) the incurrence by a Person of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt incurred by it pursuant to, or described in, Section 4.06(a), sub clauses (i) and (iii), this sub-clause (xiv) and sub-clauses (xviii), (xix) and (xx) of this Section 4.06(b), as the case may be;
(xv) guarantees by the Parent Guarantor or a Restricted Subsidiary of Debt incurred by Permitted Joint Ventures in an aggregate principal amount at any one time outstanding not to exceed an amount equal to the greater of $150,000,000 and 2.0% of Total Assets;
(xvi) cash management obligations and Debt in respect of netting services, pooling arrangements or similar arrangements in connection with cash management in the ordinary course of business consistent with past practice;
(i) additional unsecured take-or-pay obligations in the ordinary course of business, (ii) customer deposits and advance payments in the ordinary course of business received from customers for goods or services purchased in the ordinary course of business and (iii) manufacturer, vendor financing, customer and supply arrangements in the ordinary course of business;
(xviii) the incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (i) through (xvii) above and clauses (xix) and (xx) below) in an aggregate principal amount at any one time outstanding not to exceed, together with any Permitted Refinancing Debt in respect thereof, the greater of $350,000,000 and 5.0% of Total Assets;
(xix) Debt of any Person (x) incurred and outstanding on the date on which such Person becomes a Restricted Subsidiary of the Parent Guarantor or another Restricted Subsidiary of the Parent Guarantor or is merged, consolidated, amalgamated or otherwise described abovecombined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Parent Guarantor or any Restricted Subsidiary or (y) incurred to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Parent Guarantor or a Restricted Subsidiary; provided, provided however, with respect to each of sub-clause (x) and (y) of this Section 4.06(b)(xix), that both at the time of and immediately such acquisition or other transaction (1) the Parent Guarantor would have been able to incur $1.00 of additional Debt pursuant to Section 4.06(a) after giving effect to the incurrence thereof of such Debt pursuant to this Section 4.06(b)(xix) or (2) the Fixed Charge Coverage Ratio of the Parent Guarantor and its Restricted Subsidiaries would not be less than it was immediately prior to giving pro forma effect to such acquisition or other transaction;
(xx) Contribution Debt; and
(xxi) Debt consisting of local lines of credit, overdraft facilities or local working capital facilities in an aggregate outstanding principal amount at any one time not to exceed the greater of $75,000,000 and 1.0% of Total Assets.
(c) Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Debt of the same class will not be deemed to be an incurrence of Debt for purposes of this Section 4.06.
(d) For purposes of determining compliance with any restriction on the incurrence of Debt in U.S. dollars where Debt is denominated in a different currency, the amount of such Debt will be the Dollar Equivalent determined on the date of such determination; provided that if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to U.S. dollars) covering principal amounts payable on such Debt, the amount of such Debt expressed in U.S. dollars shall be adjusted to take into account the effect of such agreement. The principal amount of any Permitted Refinancing Debt incurred in the same currency as the Debt being refinanced shall be the Dollar Equivalent of the Debt refinanced determined on the date such Debt being refinanced was initially incurred. Notwithstanding any other provision of this Section 4.06, for purposes of determining compliance with this Section 4.06, increases in Debt solely due to fluctuations in the exchange rates of currencies will not be deemed to exceed the maximum amount that an Issuer, the Parent Guarantor or a Subsidiary Guarantor may incur under this Section 4.06.
(e) For purposes of determining any particular amount of Debt under this Section 4.06:
(i) no Default obligations with respect to letters of credit, guarantees or Event Liens, in each case supporting Debt otherwise included in the determination of Default such particular amount shall have occurred not be included;
(ii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.07 shall not be continuing treated as Debt;
(iii) accrual of interest, accrual of dividends, the accretion of accreted value, the obligation to pay commitment fees and the payment of interest in the form of additional preferred stock or result therefrom Debt shall not be treated as Debt; and
(iv) the reclassification of preferred stock as Debt due to a change in accounting principles shall not be treated as Debt.
(f) In the event that an item of Debt meets the criteria of more than one of the types of Debt described in this Section 4.06, the Parent Guarantor, in its sole discretion, shall classify items of Debt and shall only be required to include the amount and type of such Debt in one of such clauses and the Parent Guarantor shall be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 4.06, and may change the classification of an item of Debt (or any portion thereof) to any other type of Debt described in this Section 4.06 at any time.
(g) The amount of any Debt outstanding as of any date will be:
(i) in the case of any Debt issued with original issue discount, the amount of the liability in respect thereof determined in accordance with IFRS;
(ii) the aggregate principal amount of all the Debt, in the case of any other Debt; and
(iii) in respect of Debt of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Debt shall not exceed $1,000,000 at any one time outstandingof the other Person.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or and the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers a Borrower or any Subsidiary Subsidiary, excluding Debt otherwise permitted under this Section 7.1, incurred to finance the acquisition of fixed or capital assets, assets (whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(iLease);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) and the retirement of any Indebtedness which is concurrently being retired, no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) provided further that the aggregate outstanding amount of all Debt incurred pursuant to this Section 7.1(b) shall at no time exceed Five Hundred Thousand Dollars ($500,000), exclusive of Indebtedness of such type specifically identified on Schedule 7.1(j) hereto;
(c) Guarantee Obligations permitted under Section 7.3;
(d) current unsecured trade, utility or nonextraordinary accounts payable (including without limitation, operating leases and short term Debt owed to vendors) arising in the ordinary course of a Borrower’s or its Subsidiaries’ businesses;
(e) Debt in respect of taxes, assessments or governmental charges to the extent that payment thereof shall not exceed $1,000,000 at the time be required to be made in accordance with Section 7.3;
(f) Intercompany Loans;
(g) Debt secured by Permitted Liens;
(h) Debt of a Subsidiary existing at the time such subsidiary is acquired by a Borrower or any one time outstandingSubsidiary in an acquisition permitted under Section 7.4 hereof;
(i) Other liabilities which do not constitute Funded Debt and which are incurred and paid by a Borrower and its Subsidiaries in the ordinary course of their businesses;
(j) Debt listed on Schedule 7.1(j) hereof.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), ) and (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease and Debt incurred or assumed in connection with a Permitted Acquisition (any such debt, “CAPEX Debt”), provided that both at the time of and immediately after giving effect to the incurrence thereof (iY) no Default or Event of Default shall have occurred and be continuing, and (iiZ) the aggregate amount of all such CAPEX Debt at any one time outstanding shall not exceed the sum of (including, without limitation, any Debt i) the remaining balance of the type described in this clause (c) CAPEX Debt which is set forth on Schedule 8.1 hereofplus (ii) shall not exceed $5,000,0001,500,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such CAPEX Debt;
(d) existing Subordinated Debt;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;8.6; and
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 500,000 at any one time outstanding.
Appears in 1 contract
Sources: Credit Agreement (Universal Truckload Services, Inc.)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Borrower shall not, and shall not permit any Restricted Subsidiary to, Incur any Debt; provided, however, that the Borrower and its Restricted Subsidiaries may Incur Debt and Acquired Debt if, after giving effect to the Incurrence of any Credit Party to Agent such Debt and the Lenders under this Agreement and/or application of the other Loan Documents;proceeds therefrom, the Leverage Ratio of the Borrower and the Restricted Subsidiaries (on a consolidated basis) would not exceed 7.25 to 1.0.
(b) Notwithstanding the immediately preceding paragraph, any or all of the following Debt existing on (collectively, “Permitted Debt”) may be Incurred:
(i) Debt of the Effective Date Borrower pursuant to any Loan Document;
(ii) Debt under the Credit Facilities and set forth in Schedule 8.1 attached hereto and any renewals or refinancing guarantees of such Debt by the Borrower and the other guarantors under the Credit Facilities; provided that the aggregate principal amount of all such Debt under the Credit Facilities shall not exceed $6,000,000,000 less the amount of any permanent mandatory repayments made under the Credit Facilities (and, in the case of any revolving subfacilities thereunder, permanent commitment reductions) with Net Available Cash from Asset Sales;
(iii) the Existing Notes and their related guarantees, if any;
(iv) Debt of the Borrower or any Restricted Subsidiary in respect of Capital Lease Obligations and Purchase Money Debt, provided that (iA) the aggregate principal amount of such renewed or refinanced Debt shall secured thereby does not exceed the Fair Market Value (on the date of the Incurrence thereof) of the property acquired, constructed or leased, and (B) the aggregate principal amount of all Debt Incurred and then outstanding pursuant to this clause (iii) (together with all Permitted Refinancing Debt Incurred and then outstanding in respect of Debt previously Incurred pursuant to this clause (iv)) does not exceed $150,000,000;
(v) Debt of the original Borrower owing to and held by any Restricted Subsidiary and Debt outstanding on of a Restricted Subsidiary owing to and held by the Effective Date Borrower or any Restricted Subsidiary; provided, however, that (less 1) any principal payments and the amount subsequent issue or transfer of Capital Stock or other event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any commitment reductions made thereon on such Debt (except to the Borrower or prior a Restricted Subsidiary) shall be deemed, in each case, to constitute the Incurrence of such renewal or refinancing), Debt by the issuer thereof not permitted by this clause (iiv) the renewal or refinancing of and (2) such Debt shall be on substantially expressly subordinated to the same or better terms as prior payment in effect with respect to such Debt on full in cash of all obligations under the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such DebtLoans;
(cvi) any Debt under Interest Rate Agreements entered into by the Borrower or a Restricted Subsidiary for the purpose of Borrowers limiting interest rate risk in the ordinary course of the financial management of the Borrower or any Restricted Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease and not for speculative purposes; provided that both at the time obligations under such agreements are directly related to payment obligations on Debt otherwise permitted by the terms of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such DebtSection 8.1;
(dvii) Debt under any Hedging Transactions, provided that such transaction is Currency Exchange Protection Agreements entered into by the Borrower or a Restricted Subsidiary for risk the purpose of limiting currency exchange rate risks directly related to transactions entered into by the Borrower or any Restricted Subsidiary in the ordinary course of the financial management purposes of the Borrower or any Restricted Subsidiary and not for speculative purposes;
(eviii) Debt arising from judgments under Commodity Price Protection Agreements entered into by the Borrower or decrees a Restricted Subsidiary in the ordinary course of the financial management of the Borrower or any Restricted Subsidiary and not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(fix) Debt owing of the Borrower or any Restricted Subsidiary in connection with (1) one or more standby letters of credit issued by the Borrower or a Restricted Subsidiary in the ordinary course of business and with respect to a Person that is a Credit Party, but only trade payables relating to the extent permitted under Section 8.7 hereofpurchase of materials by the Borrower or a Restricted Subsidiary and (2) other letters of credit, surety, performance, appeal or similar bonds, banker’s acceptance, completion guarantees or similar instruments issued in the ordinary course of business of the Borrower or a Restricted Subsidiary, including letters of credit or similar instruments pursuant to self-insurance and workers’ compensation obligations; provided that upon the drawing of such letters of credit or other instrument, such obligations are reimbursed within 30 days following such drawing; provided, further, that with respect to clauses (1) and (2), such Debt is not in connection with the borrowing of money or the obtaining of advances or credit;
(gx) Debt of the Comerica Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business; provided that such Debt and the Subordinated is extinguished within two Business Days of Incurrence of such Debt;
(hxi) Debt of the Borrower or any Restricted Subsidiary arising under from agreements for indemnification and purchase price adjustment obligations Incurred or assumed in connection with any acquisition or disposition of any assets including Capital Stock; provided that the Surety Agreementsmaximum assumable liability in respect of all such obligations shall at no time exceed the gross proceeds actually received by the Borrower and any Restricted Subsidiary, including the Fair Market Value of noncash proceeds;
(xii) Debt Incurred by a Securitization Entity in connection with a Qualified Securitization Transaction that is Non-Recourse Debt with respect to the Borrower and its Restricted Subsidiaries; provided, however, that in the event such Securitization Entity ceases to qualify as a Securitization Entity or such Debt ceases to constitute such Non-Recourse Debt, such Debt will be deemed, in each case, to be Incurred at such time;
(xiii) Debt of the Borrower or a Restricted Subsidiary consisting of a guarantee of or a Lien securing Debt of the Borrower or a Restricted Subsidiary, provided that such Debt constitutes Debt that is permitted to be Incurred pursuant to this Section 8.1, but subject to compliance with the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i)provisions described under Article 8;
(ixiv) additional unsecured Debt in respect of netting services, overdraft protection and otherwise in connection with deposit accounts; provided that such Debt remains outstanding for five Business Days or less;
(xv) Debt of the Borrower or any Restricted Subsidiary outstanding on the Closing Date not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof in clauses (i) no Default through (xiv) above;
(xvi) guarantees in the ordinary course of business of the obligations of suppliers, customers, franchisers and licensees;
(xvii) Permitted Refinancing Debt; and
(xviii) Debt of the Borrower or Event any Restricted Subsidiary or the issuance of Default shall have occurred and be continuing Disqualified Stock in a principal amount or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 liquidation value, as applicable, outstanding at any one time outstandingnot to exceed $400,000,000 in the aggregate for all such Debt and Disqualified Stock. For the purposes of determining compliance with this Section 8.1, in the event that an item of Debt meets the criteria of more than one of the types of Debt permitted by this covenant or is entitled to be Incurred pursuant to Section 8.1(a), the Borrower in its sole discretion shall be permitted to classify on the date of its Incurrence, or later reclassify, all or a portion of such item of Debt in any manner that complies with this Section 8.1. Debt permitted by this Section 8.1 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this Section 8.1 permitting such Debt. For the purposes of determining any particular amount of Debt under this Section 8.1, (a) guarantees, Liens, obligations with respect to letters of credit and other obligations supporting Debt otherwise included in the determination of a particular amount will not be included and (b) any Liens granted to the Lenders that are permitted in Section 8.3 will not be treated as Debt. For purposes of determining compliance with any dollar-denominated restriction on the Incurrence of Debt, with respect to any Debt which is denominated in a foreign currency, the dollar-equivalent principal amount of such Debt Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Debt was incurred, and any such foreign denominated Debt may be refinanced or replaced or subsequently refinanced or replaced in an amount equal to the dollar-equivalent principal amount of such Debt on the date of such refinancing or replacement whether or not such amount is greater or less than the dollar equivalent principal amount of the Debt on the date of initial Incurrence. If obligations in respect of letters of credit are incurred pursuant to the Credit Facilities and are being treated as Incurred pursuant to clause (ii) of the second paragraph of this Section 8.1 and the letters of credit relate to other Debt then such other Debt shall be deemed not Incurred.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers such Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,0001,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Subordinated Debt;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;; and
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Obagi Medical Products, Inc.)
Limitation on Debt. Create(a) The Company shall not, incurand shall not permit any Restricted Subsidiary to, assume or suffer to exist Incur any Debt; provided, excepthowever, that the Company and its Restricted Subsidiaries may Incur Debt and Acquired Debt if, after giving effect to the Incurrence of such Debt and the application of the proceeds therefrom, the Leverage Ratio of the Company and the Restricted Subsidiaries (on a consolidated basis) would not exceed 7.25 to 1.0.
(b) Notwithstanding the immediately preceding paragraph, any or all of the following Debt (collectively, "Permitted Debt") may be Incurred:
(1) (i) in the event that the Dex Media Merger is consummated, Debt under the Credit Facilities and Guarantees of such Debt by the Company and the other Guarantors under the Credit Facilities; provided that the aggregate principal amount of all such Debt under the Credit Facilities in the aggregate shall not exceed $6.0 billion less the amount of any permanent mandatory repayments made under the Credit Facilities (and, in the case of any revolving subfacility thereunder, permanent commitment reductions) with Net Available Cash from Asset Sales; or (ii) in the event the Dex Media Merger is not consummated, Debt under the RHDI Credit Facility and Guarantees of such Debt by the Company and the other Guarantors under the RHDI Credit Facility; provided that the aggregate principal amount of all such Debt under the RHDI Credit Facility in the aggregate shall not exceed $3.0 billion less the amount of any permanent mandatory repayments made under the RHDI Credit Facility (and, in the case of any revolving subfacility thereunder, permanent commitment reductions) with Net Available Cash from Asset Sales;
(2) the Senior Discount Notes (excluding any Additional Senior Discount Notes) and any Senior Discount Notes issued in exchange for the Senior Discount Notes pursuant to the Registration Rights Agreement;
(3) $1,210 million aggregate principal amount of Finance Corp. Senior Notes issued on the Issue Date and assumed by the Company in connection with the RHD Merger and any notes issued in exchange for such Finance Corp. Senior Notes pursuant to the Registration Rights Agreement; and $660 million aggregate principal amount at maturity of Finance Corp. Senior Discount Notes issued on the Issue Date and assumed by the Company in connection with the RHD Merger and any notes issued in exchange for such Finance Corp. Senior Discount Notes pursuant to the Registration Rights Agreement;
(4) Debt of the Company or any Restricted Subsidiary in respect of Capital Lease Obligations and Purchase Money Debt, provided that:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall secured thereby does not exceed the Fair Market Value (on the date of the Incurrence thereof) of the Property acquired, constructed or leased, and
(b) the aggregate principal amount of all Debt Incurred and then outstanding pursuant to this clause (b) (together with all Permitted Refinancing Debt Incurred and then outstanding in respect of Debt previously Incurred pursuant to this clause (b)) does not exceed $150 million in the original event that the Dex Media Merger is consummated or $75 million in the event that the Dex Media Merger is not consummated;
(5) Debt outstanding on of the Effective Date Company owing to and held by any Restricted Subsidiary and Debt of a Restricted Subsidiary owing to and held by the Company or any Restricted Subsidiary; provided, however, that (less 1) any principal payments and the amount subsequent issue or transfer of Capital Stock or other event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any commitment reductions made thereon on such Debt (except to the Company or prior a Restricted Subsidiary) shall be deemed, in each case, to constitute the Incurrence of such renewal or refinancing), Debt by the issuer thereof not permitted by this clause (ii5) the renewal or refinancing of and (2) such Debt shall be on substantially expressly subordinated to the same or better terms as prior payment in effect with respect to such Debt on full in cash of all obligations under the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such DebtSenior Discount Notes;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d6) Debt under any Hedging Transactions, provided that such transaction is Interest Rate Agreements entered into by the Company or a Restricted Subsidiary for the purpose of limiting interest rate risk in the ordinary course of the financial management purposes of the Company or any Restricted Subsidiary and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, ; provided that the Borrowers shall promptly terminate obligations under such agreements are directly related to payment obligations on Debt otherwise permitted by the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion terms of the construction projects set forth on Schedule 8.1(i)this Section 4.09;
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 1 contract
Sources: Indenture (R H Donnelley Corp)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to the Agent and the Lenders under this Agreement and/or the other Loan Documentsor any Lender;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers the Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,00075,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Subordinated Debt;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;; and
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Montauk Renewables, Inc.)
Limitation on Debt. CreateNone of the Group Companies will incur, incurcreate, assume or suffer permit to exist any Debt, Debt except:
(ai) Indebtedness Debt of the Parent Borrower and its Subsidiaries outstanding on the Closing Date and disclosed on SCHEDULE 7.01 not in excess of US$10,000,000 in aggregate principal amount, without giving effect to any subsequent extension, renewal or refinancing thereof (collectively, the "EXISTING DEBT");
(ii) Debt of the Credit Party to Agent and the Lenders Parties under this Agreement and/or and the other Loan Senior Finance Documents;
(biii) any Debt existing of the Parent Borrower arising under (A) the Senior Indenture and the Senior Notes issued on the Effective Closing Date (but not including any renewal, refinancing or extension thereof) and set forth in Schedule 8.1 attached hereto (B) the Subordinated Indenture and the Subordinated Notes issued on the Closing Date (but not including any renewals renewal, refinancing or refinancing extension thereof);
(iv) Capital Lease Obligations and Purchase Money Debt of the Parent Borrower and its Subsidiaries outstanding on the Closing Date or incurred after the Closing Date to finance Capital Expenditures permitted by SECTION 7.14; PROVIDED that (A) the aggregate amount of all such Debt (provided together with refinancings thereof permitted by CLAUSE (vi) below) does not exceed 3.0% of Consolidated Net Tangible Assets at any time outstanding, (B) the Debt when incurred shall not be less than 90% or more than 100% of the lesser of the cost or fair market value as of the time of acquisition of the asset financed, (C) such Debt is issued and any Liens securing such Debt are created concurrently with, or within 60 days after, the acquisition of the asset financed and (D) no Lien securing such Debt shall extend to or cover any property or asset of any Group Company other than the asset so financed;
(v) Debt of the Parent Borrower or its Subsidiaries secured by Liens permitted by CLAUSES (xii), (xiii) and (xlv) of SECTION 7.02 in an aggregate outstanding principal amount (together with refinancings thereof permitted by CLAUSE (vi) below) not exceeding US$50,000,000; PROVIDED that (iA) such Debt was not incurred in connection with, or in anticipation of, the aggregate principal amount of events described in such renewed clauses or refinanced the relevant Permitted Business Acquisition, (B) such Debt does not constitute debt for borrowed money (it being understood that Capital Lease Obligations and Purchase Money Debt shall not exceed the aggregate principal amount constitute debt for borrowed money solely for purposes of the original Debt outstanding on the Effective Date this CLAUSE (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancingv), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iiiC) at the time of the events described in such renewal Sections, such Debt does not exceed 25% of the total value of the assets of the Subsidiary so acquired, or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debtassets so acquired, as the case may be;
(cA) any Debt of Borrowers the Parent Borrower or its Subsidiaries representing any Subsidiary refinancing, replacement or refunding of Debt permitted by CLAUSES (i), (iv) or (v) above; PROVIDED that (1) such Debt (the "REFINANCING DEBT") has an original aggregate principal amount not greater than the aggregate principal amount of, and unpaid interest on, the Debt being refinanced, -138- replaced or refunded plus the amount of any premiums required to be paid thereon and fees and expense associated therewith, (2) such Refinancing Debt has a later or equal final maturity and a larger or equal weighted average life than the Debt being refinanced, replaced or refunded, (3) if the Debt being refinanced, replaced or refunded is subordinated to the Senior Obligations, such Refinancing Debt is subordinated to the Senior Obligations on terms no less favorable to the Lenders than the terms of the Debt being refinanced, replaced or refunded, (4) the covenants, events of default and any Guaranty Obligations in respect thereof shall, on the whole, be no less favorable to the Lenders than those contained in the Debt being refinanced, replaced or refunded, (5) such Refinancing Debt is incurred to finance by the acquisition of fixed Group Company which is the obligor on the Debt being refinanced, replaced or capital assetsrefunded, whether pursuant to a loan or a Capitalized Lease provided that both and (6) at the time of of, and immediately after giving effect to the incurrence thereof (i) to, such refinancing, replacement or refunding, no Default or Event of Default shall have occurred and be continuing, and (iiB) Debt incurred by the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of Borrowers under the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such DebtReplacement Revolver;
(dvii) Debt Derivatives Obligations of the Parent Borrower or any Subsidiary under any Hedging Transactions, provided that such transaction is Derivatives Agreements to the extent entered into for risk management purposes after the Closing Date in compliance with SECTION 6.11 or to manage interest rate or foreign currency exchange rate risks and not for speculative purposes;
(eviii) Debt owed to any Person providing property, casualty or liability insurance to the Parent Borrower or any Subsidiary of the Parent Borrower (including any State insurance guarantee funds relating to any such insurance policy), so long as such Debt shall not be in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the year in which such Debt is incurred and such Debt shall be outstanding only during such year;
(ix) Debt arising from judgments the honoring by a bank or decrees not deemed to be other financial institution of a Default check, draft or Event similar instrument drawn against insufficient funds in the ordinary course of Default under subsection business; PROVIDED that (gA) such Debt (other than credit or purchase cards) is extinguished within three Business Days of Section 9.1its incurrence and (B) such Debt in respect of credit or purchase cards in extinguished within 60 days from its incurrence;
(fx) Debt consisting of Guaranty Obligations (A) by the Parent Borrower in respect of Debt and leases permitted to be incurred under CLAUSES (i) through (ix) above by Wholly-Owned U.S. Subsidiaries and Wholly-Owned Canadian Subsidiaries of the Parent Borrower, (B) by the Parent Borrower in respect of Franchisee Buy-Back Arrangements in the aggregate amount not exceeding the applicable Franchisee Buy-Back Limit, (C) by the Parent Borrower in respect of Franchisee Guaranty Obligations in the aggregate amount not exceeding the applicable Franchisee Guaranty Limit, (D) by U.S. Subsidiary Guarantors of Debt and leases permitted to be incurred under CLAUSES (i) through (ix) above by the Parent Borrower or Wholly-Owned U.S. Subsidiaries or Wholly-Owned Canadian Subsidiaries of the Parent Borrower, and (E) by Subsidiary Guarantors (other than the U.S. Subsidiary Guarantors) of Debt and leases permitted to be incurred under CLAUSES (i) through (ix) above by Wholly-Owned U.S. Subsidiaries or Wholly-Owned Canadian Subsidiaries of the Parent Borrower or the Parent Borrower; PROVIDED that the Guaranty Obligations of any Subordinated Debt shall be subordinated to the Guaranty and other Senior Obligations on terms that on the whole are no less favorable to the Lenders than the terms on which such Subordinated Debt is subordinated to the Senior Obligations;
(xi) Debt owing to the Parent Borrower or a Person that is a Credit Party, but only Subsidiary of the Parent Borrower to the extent permitted under Section 8.7 hereof;
by SECTION 7.06(a)(x) or (g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(ixi);
(ixii) additional Debt of the Parent Borrower representing the obligation of the Parent Borrower to make payments with respect to the cancellation or repurchase of certain Equity Interests of officers, employees or directors (or their estates) of the Parent Borrower and its Subsidiaries, to the extent permitted by SECTION 7.07(iii);
(xiii) contingent liabilities in respect of any indemnification, adjustment of purchase price, earn-out, non-compete, consulting, deferred compensation and similar obligations of the Parent Borrower and its Subsidiaries incurred in connection with the Acquisition and Permitted Business Acquisitions;
(xiv) Subordinated Debt of the Parent Borrower to fund Permitted Business Acquisitions in transactions permitted by this Agreement;
(xv) Permitted Securitization Transactions permitted by SECTION 7.05(xiii)
(xvi) unsecured Debt of the Parent Borrower not otherwise described above, provided permitted by this SECTION 7.01 incurred after the Closing Date in an aggregate principal amount not to exceed US$125,000,000 at any time outstanding; PROVIDED that both at (A) the time of and immediately after giving effect credit documentation with respect to such Debt shall not contain covenants or default provisions relating to the incurrence thereof Parent Borrower or any Subsidiary of the Parent Borrower that are more restrictive than the covenants and default provisions contained in the Senior Finance Documents, (iB) no Default or Event of Default shall have occurred and be continuing or result therefrom immediately before and immediately after giving effect to such incurrence and (iiC) the aggregate amount Parent Borrower shall have delivered to the Administrative Agents a certificate demonstrating that, upon giving effect on a Pro-Forma Basis to the incurrence of all such Debt and to the concurrent retirement of any other Debt of any Group Company, the Credit Parties shall be in compliance with the financial covenants set forth in SECTION 7.19; and
(xvii) Subordinated Debt of the Parent Borrower not otherwise permitted by this SECTION 7.01 incurred after the Closing Date in an aggregate principal amount not to exceed $1,000,000 US$250,000,000 at any one time outstanding; PROVIDED that (A) no Default or Event of Default shall have occurred and be continuing immediately before and immediately after giving effect to such incurrence, (B) the Parent Borrower shall have delivered to the Administrative Agents a certificate demonstrating that, upon giving effect on a Pro-Forma Basis to the incurrence of such Debt and to the concurrent retirement of any other Debt of any Group Company, the Credit Parties shall be in compliance with the financial covenants set forth in SECTION 7.19 and (C) the proceeds of such Subordinated Debt are applied as required by SECTION 2.10(b)(vi).
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist Neither Borrower nor any Guarantor shall incur any Debt, except:
except for (a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
Obligations, (b) any trade payables incurred in the ordinary course of business, (c) the Debt existing described on the Effective Date and set forth Schedule III hereto, (d) Debt in Schedule 8.1 attached hereto and any renewals or refinancing respect of such Debt (provided that (i) the aggregate principal amount of such renewed taxes, assessments, governmental charges or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments levies and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)claims for labor, materials and supplies, (ii) judgments or awards which have been in force for less than the renewal applicable appeal period so long as execution is not levied thereunder or refinancing in respect of which Borrower or Guarantor 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 Debt shall be on substantially the same appeal or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreementreview, and (iii) endorsements made in connection with the deposits of items for credit or collection in the ordinary course of business, (e) Debt of a Person outstanding prior to the date on which such Person was acquired by Borrower as a subsidiary, and not incurred in contemplation thereof, provided, that in no event shall the aggregate of all such Debt exceed $2,000,000.00, (f) capitalized lease obligations related to capital expenditures made by Borrower as permitted by Section 7.19 hereof (and so long as such capitalized lease obligations do not cause Borrower to be in violation of any other covenant of this Agreement), (g) Subordinate Acquisition Debt, (h) Permitted Institutional Debt, provided that, (1) the amount of the Permitted Senior Institutional Debt outstanding at any time cannot exceed the lesser of 70% of the aggregate amount of Permitted Institutional Debt outstanding at the time of such renewal determination or refinancing no Default or Event $17,500,000.00, (2) the amount of Default has occurred Permitted Subordinate Institutional Debt outstanding at any time cannot be less than $7,500,000.00, and is continuing or (3) the issuance of said Permitted Institutional Debt would result from otherwise be permitted by the renewal or refinancing other terms and conditions of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assetsCredit Facility, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default the Short Term Debt in existence on the date of the execution of this Agreement (Lenders hereby agreeing that (1) Administrative Agent shall be entitled to execute on behalf of Lenders any documents or Event agreements approved by Administrative Agent acknowledging that the Short Term Debt is included in the Obligations and secured by the Collateral, subject, however, to the provisions of Default Section 9.6 hereof and (2) all or any portion of the proceeds of the Permitted Institutional Debt shall have occurred be used to repay the Short Term Debt and be continuingthen to pay down the Credit Facility), and (iij) the aggregate amount of all such Debt at any one time outstanding (includingrefinancings, without limitation, any Debt renewals or extensions of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially permitted under the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, foregoing clauses provided that such transaction is entered into for risk management purposes and refinancings, renewals or extensions do not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to result in an increase in the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion aggregate unpaid principal amount of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described aboveso refinanced, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default renewed or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingextended.
Appears in 1 contract
Sources: Loan Agreement (Monarch Dental Corp)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of Notwithstanding anything contained in Section 4.09(b), prior to the Release, the Company will not Incur any Credit Party to Agent and Debt (including Acquired Debt), except for the Lenders under this Agreement and/or the other Loan Documents;Notes.
(b) From and after the Release, the Company and the Guarantors shall not, and shall not permit any Restricted Subsidiary to, Incur any Debt; provided, however, that the Company or any Guarantor may Incur Debt existing and the Company or any Guarantor may Incur Acquired Debt if the Company's Fixed Charge Coverage Ratio for the most recently ended four fiscal quarters for which financial statements have been filed with the Commission pursuant to Section 4.18 immediately preceding the date on which such Debt is Incurred would have been at least 2.00 to 1.00, determined on a pro forma basis (including pro forma application of the Effective Date net proceeds therefrom for such four-quarter period), as if the additional Debt had been Incurred at the beginning of such four-quarter period, with any letters of credit and set forth bankers' acceptances being deemed to have an aggregate principal amount of Debt equal to the maximum amount available thereunder and with any revolving credit facility being deemed to be utilized only to the extent of amounts outstanding thereunder.
(c) Notwithstanding the immediately preceding paragraph, any or all of the following Debt (collectively, "Permitted Debt") may be Incurred:
(1) Debt of the Company or any Guarantor under a Credit Facility; provided that the aggregate principal amount of all such Debt under Credit Facilities shall not exceed $950 million at any time outstanding less (i) the amount of any permanent mandatory repayments of principal of term loans made under a Credit Facility which was Incurred under this clause (1) and (ii) the amount of any permanent mandatory repayments of principal of revolving loans made under a Credit Facility which was Incurred under this clause (1) which are accompanied by a corresponding permanent commitment reduction, in Schedule 8.1 attached hereto each case which are made with Net Available Cash from Asset Sales as required as a result of a sale of assets;
(2) the Notes (excluding any Additional Notes) and related Guarantees and any renewals Notes and related Guarantees issued in exchange for the Notes and related Guarantees pursuant to the Registration Rights Agreement;
(3) Debt of the Company or refinancing any Guarantor in respect of such Debt Capital Lease Obligations and Purchase Money Debt; provided that:
(provided that (iA) the aggregate principal amount of such renewed or refinanced Debt shall secured thereby does not exceed the Fair Market Value (on the date of the Incurrence thereof) of the Property acquired, constructed or leased, and
(B) the aggregate principal amount of all Debt Incurred and then outstanding pursuant to this clause (3) (together with all Permitted Refinancing Debt Incurred and then outstanding in respect of Debt previously Incurred pursuant to this clause (3)) does not exceed $100 million;
(4) Debt (1) of the original Debt outstanding on Company owing to and held by Moore or any Restricted Subsidiary, (2) of a Restricted Subsidia▇▇ ▇▇ing to and held by Moore, the Effective Date Company or any other Restricted Subsidiary and (less 3) of Moore owing to and held by any principal payments and the amount Restricted Subsidiary; provided, ▇▇▇▇▇er, that any subsequent issue or transfer of Capital Stock or other event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any commitment reductions made thereon on such Debt (except to Moore, the Company or prior a Restricted Subsidiary) shall be deemed, ▇▇ ▇▇ch case, to such renewal or refinancing), (ii) constitute the renewal or refinancing Incurrence of such Debt shall be on substantially by the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with issuer thereof not permitted by this Agreement, and clause (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt4);
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d5) Debt under any Hedging Transactions, provided that such transaction is Interest Rate Agreements entered into for risk by the Company, a Guarantor or a Restricted Subsidiary in the ordinary course of their financial management purposes and not for speculative purposes;
(e6) Debt arising from judgments under Currency Exchange Protection Agreements entered into by the Company, a Guarantor or decrees a Restricted Subsidiary in the ordinary course of their financial management and not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(f7) Debt owing to under Commodity Price Protection Agreements entered into by the Company, a Person that is Guarantor or a Credit Party, but only to Restricted Subsidiary in the extent permitted under Section 8.7 hereofordinary course of their financial management and not for speculative purposes;
(g8) Debt of the Company, a Guarantor or any Restricted Subsidiary in connection with (A) one or more letters of credit issued by any of them in the Comerica ordinary course of business with respect to trade payables relating to the purchase of materials by such Persons and (B) other letters of credit, surety, performance, appeal or similar bonds, banker's acceptances, completion guarantees or similar instruments issued in the ordinary course of business of the Company, a Guarantor or a Restricted Subsidiary, including letters of credit or similar instruments pursuant to self-insurance and workers' compensation obligations; provided that upon the drawing of such letters of credit or other instrument, such obligations are reimbursed within 30 days following such drawing; provided, further, that with respect to clauses (A) and (B) above, such Debt and is not in connection with the Subordinated Debtborrowing of money or the obtaining of advances or credit;
(h9) Debt of the Company, a Guarantor or any Restricted Subsidiary arising under from the Surety Agreementshonoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds; provided that such Debt remains outstanding for five Business Days or less;
(10) Debt of the Company, a Guarantor or any Restricted Subsidiary arising from agreements for indemnification and purchase price adjustment obligations and earn-outs or other similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any assets, including Capital Stock and including by way of merger or consolidation; provided that the Borrowers maximum assumable liability in respect of all such obligations shall promptly terminate at no time exceed the Liberty Mutual Indemnity Agreement and gross proceeds actually received by the Company, a Guarantor or any other Bond Documents related thereto following Restricted Subsidiary, including the completion Fair Market Value of the construction projects set forth on Schedule 8.1(i)non-cash proceeds;
(i11) additional unsecured Debt not Incurred by a Securitization Entity in connection with a Qualified Securitization Transaction; provided, however, that in the event such Securitization Entity ceases to qualify as a Securitization Entity, such Debt will be deemed, in each case, to be Incurred at such time;
(12) Debt of the Company or a Guarantor consisting of a Guarantee of or a Lien securing, Debt of the Company or a Guarantor; provided that such Debt constitutes Debt that is permitted to be Incurred pursuant to this Section 4.09, but subject to compliance with the other provisions described under Article Four;
(13) Debt in respect of netting services, overdraft protection and otherwise in connection with deposit accounts; provided that such Debt remains outstanding for five Business Days or less;
(14) Debt of the Company, a Guarantor or any Restricted Subsidiary (other than Wallace or its Subsidiaries) that was outstanding on the Issue D▇▇▇ ▇▇▇ otherwise described in clauses (1) through (13) above, ; provided that both from and after the Release, this clause (14) shall not include Debt under the Existing Moore Credit Agreement;
(15) Guarantees in the ordinary c▇▇▇▇▇ of business of the obligations of suppliers, customers, franchisers and licensees;
(16) Permitted Refinancing Debt; and
(17) Debt of the Company, a Guarantor or any Restricted Subsidiary or the issuance of Disqualified Stock in a principal amount or liquidation value, as applicable, outstanding at any one time not to exceed $200 million in the aggregate for all such Debt and Disqualified Stock (which Debt may, but need not, be Incurred, in whole or in part, under a Credit Facility). For the purposes of determining compliance with this Section 4.09, in the event that an item of Debt meets the criteria of more than one of the types of Debt permitted by this covenant or is entitled to be Incurred pursuant to Section 4.09(b), the Company in its sole discretion shall be permitted to classify on the date of its Incurrence, or later reclassify, all or a portion of such item of Debt in any manner that complies with this Section 4.09; provided that all outstanding Debt under the Credit Agreement at the time of and immediately after giving effect the Release shall be deemed to the incurrence thereof have been Incurred pursuant to clause (ic)(i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingthis Section 4.09.
Appears in 1 contract
Sources: Indenture (Moore Corporation LTD)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto (and not otherwise permitted in this Section 8.1) and any renewals or refinancing of such Debt (Debt, provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, Date and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers such Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease Lease, provided that both at the time of and immediately after giving effect to the Table of Contents incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof8.1) shall not exceed $5,000,0001,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) unsecured Subordinated Debt;
(e) Debt incurred pursuant to the Permitted Senior Unsecured Notes and the Permitted Senior Unsecured Note Documents, all to be in form and substance reasonably satisfactory to the Agent and on terms reasonably satisfactory to the Agent;
(f) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(eg) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.19.1(g);
(fh) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i)8.7;
(i) additional [Intentionally Omitted];
(j) unsecured Debt under credit cards for commercial customers (including, without limitation, “commercial credit cards” and purchasing cards) provided by a Lender or an Affiliate of a Lender not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) exceed $5,000,000 in the aggregate amount of all such at any time outstanding; and
(k) any other Debt shall not to exceed $1,000,000 in the aggregate at any one time outstanding.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (RetailMeNot, Inc.)
Limitation on Debt. Create, incur, assume or suffer to exist (a) The Borrower shall not Incur any Debt, except:
(a) Indebtedness including Acquisition Debt, unless after giving effect to the Incurrence of any Credit Party to Agent such Debt and the Lenders under this Agreement and/or receipt and application of the other Loan Documents;proceeds therefrom, the Fixed Charge Ratio of the Borrower would be equal to or greater than 2.0 to 1.
(b) any Debt existing on Notwithstanding the Effective Date foregoing, the Borrower may Incur each and set forth in Schedule 8.1 attached hereto and any renewals or refinancing all of such Debt (provided that the following:
(i) Debt issued in exchange for, or the aggregate proceeds of which are used to Refinance, Debt of the Borrower in an amount (or, if such new Debt provides for an amount less than the principal amount thereof to be due and payable upon a declaration of such renewed or refinanced Debt shall acceleration thereof, with an original issue price) not to exceed the aggregate amount so exchanged or Refinanced (plus accrued interest and fees and expenses related to such exchange or Refinancing), the amount so exchanged or Refinanced being equal to the lesser of (x) the principal amount or involuntary liquidation preference of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on so exchanged or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, Refinanced and (iiiy) if the Debt being exchanged or Refinanced was issued with an original issue discount, the accreted value thereof (as determined in accordance with GAAP) at the time of such renewal Refinancing; provided that such Debt of the Borrower will rank pari passu with or refinancing no Default expressly subordinated in right of payment to the Obligations and the Average Life of the new Debt shall be equal to or Event greater than the Average Life of Default has occurred and is continuing the Debt to be exchanged or would result from the renewal or refinancing of such DebtRefinanced;
(cii) any Debt of Borrowers the Borrower to any of its Subsidiaries and to any Joint Ventures in which the Borrower is a direct or indirect partner, shareholder, member or other participant if such Debt of the Borrower is expressly subordinated in right of payment to the Obligations; provided that any transfer of such Debt by a Subsidiary incurred or a Joint Venture (other than to finance another Subsidiary or Joint Venture) will be deemed to be an Incurrence of Debt unless (x) such Debt has an Average Life which is greater than that of the acquisition of fixed or capital assets, whether pursuant Borrower Indenture Securities and which extends to a loan date later than the then Final Maturity Date or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (iiy) the aggregate amount of all such Debt which has an Average Life which is equal to or less than that of the Borrower Indenture Securities or which extends to, or to a date earlier than, the then Final Maturity Date does not exceed $3 million;
(iii) Debt in an aggregate principal amount not to exceed $10 million at any one time outstanding;
(iv) Debt in respect of Currency Protection Agreements or Interest Rate Protection Agreements; and
(v) Debt outstanding as of the date of this Agreement. For purposes of determining any particular amount of Debt under this subsection 7.2, Guarantees of, or obligations with respect to letters of credit supporting, Debt otherwise included in the determination of such particular amount shall not be included. For purposes of determining compliance with the provisions of this subsection 7.2, in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above clauses, the Borrower, in its sole discretion, shall classify such item of Debt and only be required to include the amount and type of such Debt in one of such clauses.
(c) Notwithstanding any other provision hereof, including without limitation any other provision of this subsection 7.2, the Borrower shall not Incur any Debt at any time unless (i) no payment or prepayment in respect of principal of such Debt (including, without limitation, any Debt payments in respect 61 67 of any sinking fund) shall be due or can become due (other than as a result of the type described in this clause (cacceleration thereof) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only prior to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom then Final Maturity Date and (ii) the aggregate outstanding principal amount of all Debt Incurred by the Borrower at such Debt time (after giving effect to the Incurrence of such Debt) shall not exceed $1,000,000 at any one time outstanding480,000,000, to the extent such Debt is Incurred in calendar year 1999, or $490,000,000 to the extent such Debt is Incurred in calendar year 2000 or 2001.
Appears in 1 contract
Limitation on Debt. CreateThe Borrower shall not create, incur, assume or suffer to exist any DebtIndebtedness other than the following Indebtedness (collectively, except:"Permitted Indebtedness"):
(a) Indebtedness of any Credit Party to Agent and Senior Loans, including Senior Facility Loans incurred under Replacement Loan Agreements in the Lenders under this Agreement and/or the other Loan Documentscircumstances contemplated in Section 3.10(b);
(b) any Debt existing on Subordinated Loans provided and held by the Effective Date Parent Companies or their respective Affiliates that are unsecured and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) pledged at all times to secure the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such DebtSenior Loans;
(c) Working Capital Debt in an amount not to exceed, at any time, U.S.$75,000,000 or its Equivalent;
(d) reimbursement obligations with respect to unsecured import letters of credit in favor of sellers of equipment necessary for the Business or constituting Sustaining Capital Costs or Incremental Capital Expenditures which by their terms expire not more than 18 months following the issuance thereof;
(e) trade accounts payable arising in the ordinary course of business which are payable less than 181 days after the date the respective goods are delivered or the respective services are rendered;
(f) Replacement Debt in connection with a prepayment in full of Borrowers all outstanding Senior Facility Loans;
(g) Permitted Hedges; and
(h) financial assurances, including surety b▇▇▇▇ ▇r reimbursement obligations in respect of letters of credit, which are required by the Closure Law and which do not exceed in the aggregate U.S.$50,000,000 or its Equivalent. Nothing in this Section 7.16 or elsewhere in this Agreement or any Subsidiary incurred other Financing Document shall be deemed to finance prohibit the acquisition exercise by the Borrower of fixed or capital assets, whether pursuant any right under any Sales Agreement to a loan or a Capitalized Lease provided that both at elect to receive payment for the products sold thereunder in advance of the time at which payment is otherwise required to be made thereunder, which advance payment may require payment (or deduction) of and immediately after giving effect to the incurrence thereof a finance charge, so long as (i) no Default or Event products sold under such arrangements are sold not more than 3 months in advance of Default shall have occurred shipment and be continuing, represent not more than 30% of Borrower's annual production of such products and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings proceeds of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into arrangements are used for risk management purposes and not for speculative working capital purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal principal
(c) amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(cd) any Debt of Borrowers such Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,0001,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(de) Subordinated Debt;
(f) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(eg) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;; and
(fh) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 1 contract
Sources: Revolving Credit Agreement (Obagi Medical Products, Inc.)
Limitation on Debt. Create, (a) Grant Recipient shall not incur, assume or suffer permit to exist any Debt, except:
indebtedness for borrowed money (a) Indebtedness or act as a guarantor of any Credit Party such indebtedness) whether secured or unsecured before Substantial Completion, or otherwise encumber the assets constituting the Project before Substantial Completion, in each case, without the prior written consent of NYSERDA, such consent not to Agent be unreasonably withheld, provided that no such consent shall be required if the financing agreements under which Grant Recipient incurs or guarantees such indebtedness provide that (i) if the exercise by lender (or any trustee or agent on behalf of such lender) of a remedy thereunder would result in the cessation of the completion of the Project or the foreclosure and sale of the Lenders existing Project, such lender (or such trustee or agent) shall not exercise such remedy without first providing NYSERDA not less than thirty (30) days (which period of time shall be in addition to the cure period provided to Grant Recipient thereunder) in which to cure the applicable default(s) and (ii) in the case of any default under this Agreement and/or such financing agreements, Grant Recipient shall have the right to prepay the outstanding amounts thereunder to cure any such defaults, after which any related lien or other Loan Documents;security interest shall be released.
(b) any Debt existing on In the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided event that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior NYSERDA elects to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to cure a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt default of the type described in this clause (i) of Section 5.04(a) above, Grant Recipient shall cooperate with NYSERDA so that NYSERDA may use any funds available to it to cure any such default and pursue Substantial Completion.
(c) which is set forth on Schedule 8.1 hereofGrant Recipient further agrees that it shall deliver a copy of documentation governing any indebtedness that complies with Section 5.04(a)(i) and (ii) within three (3) Business Days of execution thereof and shall not exceed $5,000,000, and promptly deliver to NYSERDA copies of any renewals or refinancings notice of such Debt on terms substantially the same or better than those default received by Grant Recipient in effect at the time of the original incurrence of such Debt;connection therewith.
(d) Debt under Grant Recipient agrees to cooperate with NYSERDA to determine how to prevent the exercise of any Hedging Transactions, provided that such transaction is entered into for risk management purposes remedy which may result in termination of the work to complete the Project. ▇▇▇▇▇▇▇ agrees and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided acknowledges that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion terms of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.this Section
Appears in 1 contract
Sources: Grant Disbursement Agreement
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to the Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers the Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed Three Hundred Thousand Dollars ($5,000,000300,000), and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Subordinated Debt;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(gh) existing Debt related to Borrower’s now ended ▇▇▇▇▇ Scholarship in an amount not exceeding $1,635,291;
(i) Debt to trade creditors incurred in the Comerica ordinary course of business;
(j) Debt relating to premium financing arrangements for directors and officer’s insurance, property and casualty insurance plans and health and welfare benefit plans (including health and workers compensation insurance, employment practices liability insurance and directors and officers insurance);
(k) Debt in respect of performance bonds securing obligations not constituting Debt for borrowed money (including worker’s compensation claims, unemployment insurance, health benefits and other social security legislation and local, state and federal payroll taxes) and obligations in connection with self-insurance or similar requirements, in each case provided in the Subordinated ordinary course of business;
(l) working capital adjustments in connection with any Permitted Acquisition to the extent constituting Debt;
(hm) Debt to employees constituting deferred compensation incurred in the ordinary course of business;
(n) Debt arising under from agreements providing for indemnification, adjustment of purchase price or similar obligations in connection with acquisitions or dispositions of any business, assets or Subsidiary of a Borrower otherwise permitted hereunder, other than Debt incurred for the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and purpose of financing any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i)such acquisition;
(i) Guarantee Obligations incurred in the ordinary course of business in support of Debt of any Credit Party otherwise permitted hereunder and (ii) so long as no Default or Event of Default shall have occurred and be continuing or result therefrom, Guarantee Obligations incurred in the ordinary course of business to support obligations not constituting Debt for borrowed money of any Credit Party, including, without limitation, obligations of a Credit Party owing to suppliers, customers and licensees; and
(p) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed Two Hundred Thousand Dollars ($1,000,000 200,000) at any one time outstanding.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan DocumentsBank;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 7.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ed) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.18.1;
(fe) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 7.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(if) additional unsecured Debt and obligations under Capital Leases not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt and Capital Lease obligations shall not exceed $1,000,000 3,500,000 at any one time outstanding; and
(g) Guaranty by a Credit Party of an obligation of another Credit Party to the extent such guaranteed obligation was permitted hereunder.
Appears in 1 contract
Limitation on Debt. Create(a) The Issuer shall not, incurand shall not permit any Restricted Subsidiary to, assume or suffer to exist Incur any Debt, except:
(a) Indebtedness of any Credit Party to Agent and except that the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto Issuer and any renewals or refinancing Restricted Subsidiary may Incur Debt if after giving pro forma effect to the Incurrence of such Debt and the receipt and application of the proceeds thereof the Consolidated Coverage Ratio of the Issuer and its Restricted Subsidiaries would be not less than 2.00 to 1.00 (“Ratio Debt”); provided that (i) the aggregate principal amount of such renewed or refinanced Debt Incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to this paragraph and outstanding at any one time shall not exceed the greater of (i) $25.0 million and (ii) 11.5% of Trailing Consolidated EBITDA determined at the time of Incurrence.
(b) Notwithstanding Section 4.9(a), the following Debt may be Incurred (collectively, the “Permitted Debt”):
(1) Debt of the Issuer or any Restricted Subsidiary under one or more Debt Facilities in an aggregate principal amount Incurred under this clause (1) at any one time outstanding not to exceed the greater of (i) $600.0 million, plus up to an additional $500.0 million and (ii) an amount such that, after giving pro forma effect thereto, the Secured Leverage Ratio (treating all Debt Incurred under this clause (1) as secured by Liens on the assets of the original Issuer) of the Issuer and its Restricted Subsidiaries would not exceed 3.00 to 1.00 or, if any such Debt is Incurred in connection with an acquisition of assets or equity interests or a merger, consolidation or amalgamation not prohibited under the Indenture, does not cause the Secured Leverage Ratio, determined on a pro forma basis, to be greater than the Secured Leverage Ratio immediately prior thereto, plus, in the case of any refinancing of any Debt permitted under this clause (1) or any portion thereof, any increase in the amount of such Debt in connection with any refinancing expenses, accrued and unpaid interest, premiums and other costs and expenses incurred in connection therewith;
(2) Debt of the Issuer or any Restricted Subsidiary outstanding on the Effective Issue Date and not otherwise referred to in clause (less 1) or (4) of this Section 4.9(b);
(3) Debt owed by the Issuer to any Restricted Subsidiary or Debt owed by a Restricted Subsidiary to the Issuer or a Restricted Subsidiary; provided, however, that:
(A) any such Debt owing by the Issuer or a Subsidiary Guarantor to a Restricted Subsidiary that is not an Issuer or a Subsidiary Guarantor shall be expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes, and
(B) upon either the transfer or other disposition by such Restricted Subsidiary or the Issuer of any Debt so permitted to a Person other than the Issuer or another Restricted Subsidiary or the issuance (other than directors’ qualifying shares), sale, lease, transfer or other disposition of shares of Capital Stock (including by consolidation or merger) of such Restricted Subsidiary to a Person other than the Issuer or another Restricted Subsidiary such that it ceases to be a Restricted Subsidiary, the provisions of this clause (3) shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred at the time of such transfer or other disposition;
(4) Debt consisting of the Notes (other than any Additional Notes);
(5) the Subsidiary Guarantees and Guarantees by the Issuer or any Restricted Subsidiary of any Debt of the Issuer or a Restricted Subsidiary permitted to be Incurred under this Indenture;
(6) Debt of the Issuer or any of its Restricted Subsidiaries represented by Finance Lease Obligations or purchase money obligations, in each case, Incurred for the purpose of financing all or any part of the purchase price or cost of acquisition, construction, repair or improvement of property, plant or equipment used in the business of the Issuer or such Restricted Subsidiary, in an aggregate principal amount, including all Debt Incurred to refund or refinance any Debt Incurred pursuant to this clause (6), not to exceed, at any one time outstanding, the greater of (i) $35.0 million and (ii) 16.25% of Trailing Consolidated EBITDA determined at the time of Incurrence;
(7) Debt of the Issuer or any Restricted Subsidiary consisting of Permitted Interest Rate, Currency or Commodity Price Agreements;
(8) Permitted Acquisition Debt;
(9) Debt of Foreign Subsidiaries in an aggregate amount Incurred pursuant to this clause (9) at any one time outstanding not to exceed the greater of (i) $25.0 million and (ii) 11.5% of Trailing Consolidated EBITDA determined at the time of such Incurrence;
(10) Permitted Refinancing Debt which is exchanged for or the proceeds of which are used to refinance or refund, or any extension or renewal of Debt Incurred pursuant to Section 4.9(a) or pursuant to clauses (2), (4), (5), (6), (8), (19) or (20)(i) of this Section 4.9(b) and this clause (10); provided that any Permitted Refinancing Debt in respect of Debt Incurred pursuant to clauses (6), (19) and (20)(i) shall accordingly reduce amounts available thereunder;
(11) Obligations arising from agreements by the Issuer or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs, deferred compensation or other similar obligations, in each case, Incurred in connection with the acquisition or disposition of any business or assets;
(12) Debt Incurred by the Issuer or its Restricted Subsidiaries in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance, self-insurance obligations, take-or-pay obligations contained in supply arrangements, letters of credit, bank guarantees, bankers’ acceptances, performance, bid, surety and similar bonds and completion Guarantees (not for borrowed money) provided in the ordinary course of business;
(13) Debt of the Issuer or any of its Restricted Subsidiaries arising from customary cash management services provided by a bank or other financial institution in the ordinary course of business, including treasury, depository, overdraft, credit card processing, credit or debit card, purchase card, electronic funds transfer and other cash management arrangements;
(14) Debt consisting of promissory notes issued by the Issuer or any Subsidiary Guarantor to current or former officers, directors, consultants and employees, their respective estates, heirs, permitted transferees, spouses or former spouses to finance the Issuer’s repurchase or redemption of Capital Stock of the Issuer permitted by Section 4.7(b)(5); provided that such Debt shall be subordinated in right of payment to the Notes;
(15) Debt representing deferred compensation to employees of the Issuer or any Restricted Subsidiaries incurred in the ordinary course of business;
(16) Debt in an aggregate amount not to exceed the net cash proceeds received by the Issuer after the Issue Date from the issuance and sale of Capital Stock of the Issuer (other than Redeemable Stock) to the extent not used to make payments and under the promissory notes referred to in clause (14) above, clauses (5) or (12) of Section 4.7(b) or taken into account for purposes of clause (a)(iii)(2) of Section 4.7;
(17) Debt in the form of letters of credit issued for the benefit of Foreign Subsidiaries in currencies or jurisdictions not available under the Amended Credit Agreement in an aggregate face amount at any one time outstanding not to exceed $15.0 million;
(18) Debt of Excluded Marketing Subsidiaries in an aggregate principal amount at any one time outstanding not to exceed $40.0 million; provided that in no event shall any such Debt be Guaranteed by, or secured by Liens on any assets of, or otherwise be recourse to, the Issuer or any Subsidiary Guarantor in any way (provided that, for the avoidance of doubt, the Issuer may deliver a customary "comfort letter" in connection with the issuance of any such Debt);
(19) (i) guarantees by the Issuer or any Restricted Subsidiary of Debt of franchisees in an aggregate principal amount that, when aggregated with the principal amount of all other Debt then outstanding and Incurred pursuant to this clause at the time of Incurrence (together with any commitment reductions Permitted Refinancing Debt in respect thereof) and all loans and advances then outstanding and made thereon on pursuant to clause (2) of the definition of "Permitted Investments," does not exceed the greater of (x) $75.0 million and (y) 35.0% of Trailing Consolidated EBITDA, and (ii) guarantees in the ordinary course of business of lease obligations of franchisees incurred in connection with the operation of non-U.S. franchises (including guarantees arising upon the disposition of stores to franchisees);
(20) Indebtedness in connection with (i) Finance Lease Obligations or prior other obligations or deferrals attributable to such renewal capital spending or refinancing)other funds made available by food, beverage and packaging suppliers in connection with incentive arrangements, in each case, Incurred in the ordinary course of business, (ii) any sale and leaseback arrangements not in violation of the renewal or refinancing Indenture not to exceed, at any one time outstanding, the greater of such Debt shall be on substantially (x) $35.0 million and (y) 16.25% of Trailing Consolidated EBITDA determined at the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreementtime of Incurrence, and (iii) Receivables Sales and similar factoring arrangements of Receivables; and
(21) in addition to the items referred to in clauses (1) through (20) of this Section 4.9(b), Debt of the Issuer or any Restricted Subsidiary which, together with any other outstanding Debt Incurred pursuant to this clause (21), and including any renewals, extensions, substitutions, refinancings or replacements of such Debt, has an aggregate principal amount at any one time outstanding not to exceed the greater of (i) $50.0 million and (ii) 23.5% of Trailing Consolidated EBITDA determined at the time of Incurrence.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Debt Incurred pursuant to, and in compliance with, this Section 4.9:
(1) in the event that Debt meets the criteria of more than one of the types of Debt described in Section 4.9(a) and Section 4.9(b) of this covenant, the Issuer, in its sole discretion, may classify such renewal item of Debt on the date of Incurrence (or refinancing no Default later classify or Event reclassify such Debt, in its sole discretion) in any manner permitted by this covenant and shall only be required to include the amount and type of Default has occurred such Debt in one of such clauses; provided that all Debt outstanding on the Issue Date under the Amended Credit Agreement shall be deemed Incurred under clause (1) of the second paragraph of this covenant and may not later be reclassified;
(2) Guarantees of, or obligations in respect of letters of credit relating to, Debt which is continuing otherwise included in the determination of a particular amount of Debt shall not be included;
(3) the principal amount of any Redeemable Stock or would result from Preferred Stock of the renewal Issuer or refinancing a Restricted Subsidiary will be equal to the greater of the maximum redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof;
(4) Debt permitted by this covenant need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this covenant permitting such Debt;
(c5) any Receivables Sale shall be the amount for which there is recourse to the seller;
(6) the amount of Debt issued at a price that is less than the principal amount thereof will be equal to the amount of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both liability in respect thereof determined in accordance with GAAP; and
(7) at the time of Incurrence, division, classification or reclassification, the Issuer will be entitled to divide and immediately after classify an item of Debt in more than one of the categories of Debt described in Section 4.9(a) or clauses (1) through (21) of Section 4.9(b) (or any portion thereof) without giving pro forma effect to the incurrence thereof Debt Incurred, divided, classified or reclassified pursuant to any other clause or paragraph above (ior any portion thereof) no Default or Event of Default shall have occurred and be continuing, and (ii) when calculating the aggregate amount of all Debt that may be Incurred, divided, classified or reclassified pursuant to any such Debt clause or paragraph (or any portion thereof) at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;time.
(d) Accrual of interest, accrual of dividends, the accretion of accreted value, the payment of interest in the form of additional Debt under any Hedging Transactions, provided that such transaction is entered into and the payment of dividends in the form of additional shares of Preferred Stock or Redeemable Stock will not be deemed to be an Incurrence of Debt for risk management purposes and not for speculative purposes;of this Section 4.9.
(e) For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt arising from judgments denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or decrees first committed, in the case of revolving credit Debt; provided that if such Debt is Incurred to refinance other Debt denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-dominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-dominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Debt does not exceed the principal amount of such Debt being refinanced. Notwithstanding any other provision of this Section 4.9, the maximum amount of Debt that the Issuer and its Restricted Subsidiaries may Incur pursuant to this Section 4.9 shall not be deemed to be exceeded solely as a Default or Event result of Default under subsection (g) fluctuations in the exchange rate of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingcurrencies.
Appears in 1 contract
Limitation on Debt. CreateThe Company shall not, and shall cause the Subsidiaries not to, create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan DocumentsDebt;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto date hereof and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Closing Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default Covenant Breach shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at incurred during any one time outstanding Fiscal Year (including, without limitation, including any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof)) shall not exceed $5,000,0002,250,000, and any renewals or refinancings of such Debt on terms substantially (it being understood that Credit Agreement Debt under the same or better than those "Acquisition Credit" (as such term is defined in effect at the time of the original incurrence of such DebtCredit Agreement) is not intended to be restricted by this covenant);
(d) Subordinated Debt, including the Debt evidenced by the Subordinated Notes;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a "Default or Event of Default Default" under subsection (g) of Section 9.110.1 of the Credit Agreement;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;; and
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Covenant Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 2,250,000 at any one time outstanding.
Appears in 1 contract
Sources: Securities Purchase Agreement (National Technical Systems Inc /Ca/)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, Incur any Debt (including Acquired Debt); provided that the Issuer or any Restricted Subsidiary may Incur Debt (including Acquired Debt) if after giving effect to the Incurrence of any Credit Party to Agent such Debt and the Lenders under this Agreement and/or application of the other Loan Documents;proceeds thereof, the Consolidated Interest Coverage Ratio would be greater than 2.0 to 1.0; provided further, that the aggregate principal amount of Debt that may be Incurred pursuant to the foregoing by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed, together with any Permitted Refinancing Debt in respect thereof, $50.0 million at any one time outstanding.
(b) The restrictions in clause (a) of this Section 4.09 shall not apply to Debt that falls into any one or more of the following clauses (each of the following, “Permitted Debt”):
(i) (A) Debt existing on of the Effective Date Issuer evidenced by the Notes (but not including any Additional Notes) and set forth Debt of the Subsidiary Guarantors evidenced by the Subsidiary Guarantees relating to the Notes (but not including any Additional Notes) and (B) Debt of the Issuer evidenced by the Remaining Senior Notes (but not including any additional Existing Senior Notes) and Debt of the Subsidiary Guarantors evidenced by the Subsidiary Guarantees relating to the Remaining Senior Notes (but not including any additional Existing Senior Notes);
(ii) Debt of the Issuer and/or a Restricted Subsidiary under Credit Facilities (including the ABL Credit Facility), provided that, (A) after giving effect to any such Incurrence, the aggregate principal amount of all Debt Incurred pursuant to this clause (ii) and then outstanding shall not exceed the greater of (I) $600 million, and (II) the Borrowing Base (or similar term) as defined in Schedule 8.1 attached hereto and any renewals or refinancing the ABL Credit Facility as in effect as of the date of Incurrence of such Debt, (B) no Restricted Subsidiary that is not a Subsidiary Guarantor may Guarantee any ABL Obligation of the Issuer or any Subsidiary Guarantor and (C) the aggregate principal amount of all Debt Incurred under a Foreign ABL Facility pursuant to this clause (ii) and then outstanding shall not exceed $50.0 million;
(iii) Debt of the Issuer or a Restricted Subsidiary in respect of Capital Lease Obligations and Purchase Money Debt, provided that that:
(iA) the aggregate principal amount of such renewed or refinanced Debt shall does not exceed the Fair Market Value (on the date of the Incurrence thereof) of the Property acquired, constructed or leased, and
(B) the aggregate principal amount of all Debt Incurred and then outstanding pursuant to this clause (iii) (together with all Permitted Refinancing Debt Incurred and then outstanding in respect of Debt previously Incurred pursuant to this clause (iii)) does not exceed the original Debt outstanding on the Effective Date sum of (less any principal payments and I) $25.0 million plus (II) the amount of any commitment reductions made thereon on Debt Incurred in connection with the Specified Financing Transactions;
(iv) Debt of the Issuer owing to and held by any Restricted Subsidiary and Debt of a Restricted Subsidiary owing to and held by the Issuer or prior any Restricted Subsidiary, provided that any subsequent issue or transfer of Capital Stock or other event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any such renewal Debt (except to the Issuer or refinancing)a Restricted Subsidiary) shall be deemed, (ii) in each case, to constitute the renewal or refinancing Incurrence of such Debt shall by the Issuer or such Restricted Subsidiary, as the case may be; provided, further, that if the Issuer or any Subsidiary Guarantor is the obligor on such Debt and the payee is not the Issuer or a Subsidiary Guarantor, such Debt, in order to be on substantially permitted under this clause (iv), must be expressly subordinated to the same or better terms as prior payment in effect full in cash of all Obligations then due with respect to such Debt on the Effective DateNotes, and shall otherwise be in compliance with this Agreementthe case of the Issuer or the Subsidiary Guarantee, and (iii) at in the time case of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debta Subsidiary Guarantor;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(dv) Debt under any Hedging Transactions, provided that such transaction is Interest Rate Agreements entered into by the Issuer or a Restricted Subsidiary for the purpose of limiting interest rate risk management purposes and not for speculative purposes;
(evi) Debt arising from judgments under Currency Exchange Protection Agreements entered into by the Issuer or decrees a Restricted Subsidiary for the purpose of limiting currency exchange rate risks directly related to transactions entered into by the Issuer or such Restricted Subsidiary and not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(fvii) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Acquired Debt;
(h) Debt arising under the Surety Agreements, ; provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt either (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (iiA) the Issuer would have been able to Incur $1.00 of additional Debt pursuant to clause (a) of this Section 4.09 or (B) the Consolidated Interest Coverage Ratio would be equal to or greater than immediately prior to the related acquisition;
(viii) Debt of the Issuer or a Restricted Subsidiary outstanding on the Settlement Date (other than Debt specified in clauses (b)(i), (b)(ii), (b)(iii), (b)(ix), (b)(x), (b)(xi) or (b)(xiii) of this Section 4.09;
(ix) Debt arising from agreements of the Issuer or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with the disposition of any business, assets or Capital Stock of the Issuer or any Restricted Subsidiary; provided, that the maximum aggregate amount liability in respect of all such Debt shall not at no time exceed $1,000,000 the gross proceeds including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Issuer and its Subsidiaries in connection with such disposition;
(x) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Debt in respect of workers’ compensation claims, payment obligations in connection with health or other types of social security benefits, unemployment or other insurance or self-insurance obligations, reclamation, statutory obligations, bankers’ acceptances, performance, surety or similar bonds and letters of credit or completion or performance guarantees, or other similar obligations in the ordinary course of business or consistent with past practice;
(xi) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds;
(xii) Debt of the Issuer or any Restricted Subsidiary in an aggregate principal amount outstanding at any one time outstandingnot to exceed the greater of (A) $150.0 million and (B) 5.3% of Total Assets;
(xiii) the Guarantee by the Issuer or any Restricted Subsidiary of Debt of the Issuer or any Restricted Subsidiary, so long as in each case such Debt was Incurred pursuant to another provision of this covenant and is otherwise permitted under this Indenture;
(xiv) the Incurrence of Debt by Foreign Restricted Subsidiaries in an aggregate principal amount outstanding at any one time not to exceed the greater of (A) $50.0 million and (B) 2.0% of the Total Assets of the Foreign Restricted Subsidiaries;
(xv) Permitted Refinancing Debt Incurred in respect of Debt Incurred pursuant to clause (a) of this Section 4.09 and clauses (b)(i) (except that, for purposes of Permitted Refinancing Debt in respect of clause (b)(i)(B), clause (d) of the definition of Permitted Refinancing Debt shall not apply and if such Debt is secured such debt may be Pari Passu Notes Lien Debt or Junior Lien Debt), (b)(vii), (b)(viii) and (b)(xvi) of this Section 4.09;
(xvi) the Incurrence of Debt by the Issuer or any Restricted Subsidiary in an amount not to exceed at any time outstanding the amount of Remaining Senior Notes repaid with internally generated cash of the Issuer or its Restricted Subsidiaries after the Settlement Date; provided that any Debt Incurred pursuant to this clause (xvi) shall meet the requirements of Permitted Refinancing Debt in respect of such Remaining Senior Notes repaid, except that clause (d) of the definition of Permitted Refinancing Debt shall not apply and if such Debt is secured such debt may be Pari Passu Notes Lien Debt or Junior Lien Debt; and
(xvii) the Incurrence of Debt by the Issuer or any Restricted Subsidiary pursuant to a Regulatory Debt Facility in an aggregate principal amount outstanding at any one time not to exceed $100.0 million; provided that such Regulatory Debt Facility shall have a Stated Maturity that is later than the Stated Maturity of the Notes.
(c) Notwithstanding anything to the contrary contained in this Section 4.09,
(i) the Issuer shall not, and shall not permit any Subsidiary Guarantor to, Incur any Debt after the Settlement Date that is subordinated in right of payment by its terms to any other Debt of the Issuer or any Subsidiary Guarantor unless such Debt is subordinated in right of payment by its terms to the Notes to at least the same extent and for so long as it is subordinated to such other Debt; and
(ii) accrual of interest, fees, expenses, charges, premiums and additional or contingent interest on Permitted Debt, accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Debt will not be deemed to be an Incurrence of Debt for purposes of this Section 4.09.
(d) This Indenture will not treat (1) unsecured Debt as subordinated or junior to Secured Debt merely because it is unsecured or (2) senior Debt as subordinated or junior to any other senior Debt merely because it has a junior priority with respect to the same collateral.
(e) For purposes of determining compliance with this Section 4.09, in the event that an item of Debt meets the criteria for Permitted Debt under more than one of the categories of Debt described in clauses (b)(i) through (xvii) of this Section 4.09 or is entitled to be Incurred pursuant to clause (a) of this Section 4.09, the Issuer shall, in its sole discretion, classify (or later reclassify, in whole or in part, in its sole discretion) such item of Debt in any manner that complies with this Section 4.09, provided that any Debt in respect of commitments under the ABL Credit Facility outstanding on the Settlement Date shall be deemed to have been Incurred pursuant to clause (b)(ii) of this Section 4.09 and may not be reclassified. Subject to the foregoing, Debt permitted by this Section 4.09 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.09 permitting such Debt.
(f) For purposes of determining any particular amount of Debt under this Section 4.09, Guarantees, Liens, obligations with respect to letters of credit and other obligations supporting Debt otherwise included in the determination of a particular amount will not be included.
(g) For purposes of determining compliance with any dollar-denominated restriction on the Incurrence of Debt, with respect to any Debt which is denominated in a foreign currency, the dollar-equivalent principal amount of such Debt Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Debt was Incurred, and any such foreign denominated Debt may be Repaid or subsequently Repaid in an amount equal to the dollar-equivalent principal amount of such Debt on the date of such Refinancing whether or not such amount is greater or less than the dollar-equivalent principal amount of the Debt on the date of initial Incurrence.
Appears in 1 contract
Sources: Indenture (GameStop Corp.)
Limitation on Debt. Create1.1 The Company shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer in any manner become directly or indirectly liable with respect to exist or otherwise become responsible for, contingently or otherwise, the payment of (individually and collectively, to “Incur” or, as appropriate, an “Incurrence”), any Debt (including any Acquired Debt, except); provided that the Company and any Guarantor shall be permitted to Incur Debt (including Acquired Debt) if:
(a) Indebtedness after giving effect to the Incurrence of any Credit Party to Agent such Debt and the Lenders under this Agreement and/or application of the other Loan Documentsproceeds thereof, on a pro forma basis, no Default or Event of Default would occur or be continuing;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event Incurrence and after giving effect to the Incurrence of Default has occurred such Debt and is continuing or would result from the renewal or refinancing application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.00 to 1.00; and
(c) if such Debt is Senior Debt, at the time of such Incurrence and after giving effect to the Incurrence of such Senior Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Senior Leverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Senior Debt, taken as one period, would be less than 4.00 to 1.00.
1.2 This Section 1 (Limitation on Debt) shall not, however, prohibit the following (collectively, “Permitted Debt”):
(a) the Incurrence by the Company or any Restricted Subsidiary of Debt under Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed an amount equal to (i) the Total Commitments, plus (ii) in the case of any refinancing of any Debt permitted under this paragraph (a), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;
(b) the Incurrence by the Company of Debt pursuant to the Notes (other than Additional Notes) and the Incurrence of Debt by the Guarantors pursuant to the Note Guarantees (other than guarantees of Additional Notes);
(c) any Debt of Borrowers the Company or any Restricted Subsidiary incurred outstanding on the Issue Date (other than: (i) Debt described in paragraphs (a) or (b) of this Section 1.2 or (ii) Debt Incurred to finance the acquisition purchase of fixed or capital assets, whether real property on which the “AMS3” data centre is located which shall be deemed Incurred pursuant to a loan any other sub-paragraph of this Section 1.2 or a Capitalized Lease pursuant to Section 1.1), including the Debt under the Existing Notes until the Existing Notes are repaid in full or otherwise discharged;
(d) the Incurrence by the Company or any Restricted Subsidiary of intercompany Debt between the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that both at the time of and immediately after giving effect to the incurrence thereof that:
(i) no Default if the Company or Event a Guarantor is the obligor on any such Debt and the lender of Default such Debt is not the Company or a Guarantor, it is unsecured and expressly subordinated in right of payment to the prior payment in full in cash (whether upon Stated Maturity, acceleration or otherwise) and the performance in full of its obligations under this Agreement; and
(ii) (x) any disposition, pledge or transfer of any such Debt to any Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing from the Company or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this paragraph (d);
(e) guarantees of the Notes made in accordance with the provisions of Section 5 (Limitation on Guarantees of Debt by Restricted Subsidiaries);
(f) the Incurrence by the Company or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition, lease, rental or development and improvement of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property plant or equipment used in the Company’s or any Restricted Subsidiary’s business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this paragraph (f) and still outstanding shall have occurred and be continuing, not in the aggregate exceed the greater of: (i) €60.0 million; and (ii) the aggregate amount 6% of all Total Assets; provided further that such Debt at exists prior to or on the date of such acquisition, lease, rental or development and improvements or is created within 270 days thereafter;
(g) the Incurrence by the Company or any one time outstanding (Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of amounts or other purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Company or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause paragraph (c) which is set forth on Schedule 8.1 hereofg) shall not at no time exceed $5,000,000the gross proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value), actually received from the original incurrence sale of such Debtassets;
(dh) the Incurrence by the Company or any Restricted Subsidiary of Debt under any Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(ei) the Incurrence by the Company or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising from judgments under similar legislation, or decrees pursuant to self-insurance obligations and not deemed to be a Default in connection with the borrowing of money or Event the obtaining of Default under subsection (g) of Section 9.1advances or credit;
(fj) the Incurrence of Debt owing to by the Company or any Restricted Subsidiary arising from (i) the honoring by a Person bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is a Credit Partyextinguished within 5 business days of Incurrence, but only to (ii) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations and (iii) completion guarantees provided or letters of credit obtained by the extent permitted under Section 8.7 hereofCompany or any Restricted Subsidiary in the ordinary course of business;
(gk) the Comerica Incurrence by the Company or any Restricted Subsidiary of Permitted Refinancing Debt in exchange for or the Net Cash Proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in, paragraphs 1.1, 1.2(b), (c), (k) and (t) of this Section 1, as the Subordinated Debtcase may be;
(hl) Debt arising under customer deposits and advance payments received in the Surety Agreements, provided that ordinary course of business from customers for goods purchased in the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion ordinary course of the construction projects set forth on Schedule 8.1(i)business;
(im) additional unsecured Management Advances;
(n) any customary cash management, cash pooling or netting or setting off arrangements in the ordinary course of business;
(o) without limiting Section 5 (Limitation on Guarantees of Debt not otherwise described aboveby Restricted Subsidiaries), the guarantee by the Company or any Restricted Subsidiary of Debt that was permitted to be incurred by another provision of this covenant; provided that both at if the time of and immediately after giving effect Debt being guaranteed is subordinated to or pari passu with Debt incurred under this Agreement or is unsecured, then the guarantee shall be subordinated or pari passu or unsecured to the incurrence thereof same extent as the Debt guaranteed;
(p) without limiting Section 3 (Limitation on Liens), Debt arising by reason of any Lien granted by or applicable to such Person securing Debt of the Company or any Restricted Subsidiary so long as the Incurrence of such Debt is permitted under the terms of this Agreement;
(q) Debt consisting of (i) no Default or Event the financing of Default shall have occurred and be continuing or result therefrom and insurance premiums, (ii) take or pay obligations contained in supply agreements or (iii) rental guarantees, in each case, in the aggregate amount ordinary course of all such Debt shall not exceed $1,000,000 business;
(r) guarantees of the obligations of Qualified Joint Ventures at any one time outstanding.outstanding not exceeding the greater of €25.0 million and 3% of Total Assets in aggregate principal amount;
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, Incur any Debt (including Acquired Debt); provided that the Issuer or any Restricted Subsidiary may Incur Debt (including Acquired Debt) if after giving effect to the Incurrence of any Credit Party to Agent such Debt and the Lenders under this Agreement and/or application of the other Loan Documents;proceeds thereof, the Consolidated Interest Coverage Ratio would be greater than 2.0 to 1.0; provided further, that the aggregate principal amount of Debt that may be Incurred pursuant to the foregoing by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed, together with any Permitted Refinancing Debt in respect thereof, $100.0 million at any one time outstanding.
(b) The restrictions in clause (a) of this Section 4.09 shall not apply to Debt that falls into any one or more of the following clauses (each of the following, “Permitted Debt”):
(i) (A) Debt existing on of the Effective Date Issuer evidenced by the Notes (but not including any Additional Notes) and set forth (B) Debt of the Subsidiary Guarantors evidenced by the Subsidiary Guarantees relating to the Notes;
(ii) Debt of the Issuer or a Restricted Subsidiary under Credit Facilities (including the Senior Credit Facility), provided that, after giving effect to any such Incurrence, the aggregate principal amount of all Debt Incurred pursuant to this clause (ii) and then outstanding shall not exceed the greater of (A) $600 million, and (B) the Borrowing Base (or similar term) as defined in Schedule 8.1 attached hereto and any renewals or refinancing the Senior Credit Facility as in effect as of the date of Incurrence of such Debt;
(iii) Debt of the Issuer or a Restricted Subsidiary in respect of Capital Lease Obligations and Purchase Money Debt, provided that:
(provided that (iA) the aggregate principal amount of such renewed or refinanced Debt shall does not exceed the Fair Market Value (on the date of the Incurrence thereof) of the Property acquired, constructed or leased, and
(B) the aggregate principal amount of all Debt Incurred and then outstanding pursuant to this clause (iii) (together with all Permitted Refinancing Debt Incurred and then outstanding in respect of Debt previously Incurred pursuant to this clause (iii)) does not exceed the original greater of (x) $100 million and (y) 2.7% of Total Assets;
(iv) Debt outstanding on of the Effective Date (less Issuer owing to and held by any principal payments Restricted Subsidiary and Debt of a Restricted Subsidiary owing to and held by the amount Issuer or any Restricted Subsidiary, provided that any subsequent issue or transfer of Capital Stock or other event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any commitment reductions made thereon on such Debt (except to the Issuer or prior a Restricted Subsidiary) shall be deemed, in each case, to such renewal or refinancing), (ii) constitute the renewal or refinancing Incurrence of such Debt shall by the Issuer or such Restricted Subsidiary, as the case may be; provided, further, that if the Issuer or any Subsidiary Guarantor is the obligor on such Debt and the payee is not the Issuer or a Subsidiary Guarantor, such Debt, in order to be on substantially permitted under this clause (iv), must be expressly subordinated to the same or better terms as prior payment in effect full in cash of all Obligations then due with respect to such Debt on the Effective DateNotes, and shall otherwise be in compliance with this Agreementthe case of the Issuer or the Subsidiary Guarantee, and (iii) at in the time case of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debta Subsidiary Guarantor;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(dv) Debt under any Hedging Transactions, provided that such transaction is Interest Rate Agreements entered into by the Issuer or a Restricted Subsidiary for the purpose of limiting interest rate risk management purposes and not for speculative purposes;
(evi) Debt arising from judgments under Currency Exchange Protection Agreements entered into by the Issuer or decrees a Restricted Subsidiary for the purpose of limiting currency exchange rate risks directly related to transactions entered into by the Issuer or such Restricted Subsidiary and not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(fvii) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Acquired Debt;
(h) Debt arising under the Surety Agreements, ; provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt either (i) no Default the Issuer would have been able to Incur $1.00 of additional Debt pursuant to clause (a) of this Section 4.09 or Event of Default shall have occurred and be continuing or result therefrom and (ii) the Consolidated Interest Coverage Ratio would be greater than immediately prior to the related acquisition;
(viii) Debt of the Issuer or a Restricted Subsidiary outstanding on the Issue Date (other than Debt specified in clauses (b)(ii), (b)(iv), (b)(ix), (b)(x), (b)(xi) or (b)(xiii) of this Section 4.09;
(ix) Debt arising from agreements of the Issuer or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with the disposition of any business, assets or Capital Stock of the Issuer or any Restricted Subsidiary; provided, that the maximum aggregate amount liability in respect of all such Debt shall not at no time exceed $1,000,000 the gross proceeds including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to any one time outstanding.subsequent changes in value) actually received by the Issuer and its Subsidiaries in connection with such disposition;
Appears in 1 contract
Sources: Indenture (GameStop Corp.)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, create, issue, Incur, assume, guarantee or in any manner become directly or indirectly liable with respect to or otherwise become responsible for, contingently or otherwise, the payment of any Credit Party (individually and collectively, to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) “Incur” or, as appropriate, an “Incurrence”), any Debt existing on (including any Acquired Debt); provided that the Effective Date and set forth in Schedule 8.1 attached hereto Parent Guarantor, each Issuer and any renewals or refinancing Restricted Subsidiary shall be permitted to Incur Debt (including Acquired Debt) if in each case (i) after giving effect to the Incurrence of such Debt (provided that (i) and the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount application of the original Debt outstanding proceeds thereof, on the Effective Date (less any principal payments a pro forma basis, no Default or Event of Default would occur or be continuing and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred Incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) Section 4.06(a) shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default the Notes issued on the Issue Date;
(ii) the Incurrence by the Parent Guarantor or Event any Restricted Subsidiary of Default shall have occurred and be continuing, Debt under Credit Facilities in an aggregate principal amount not to exceed the greater of (i) €350,000,000 and (ii) an amount equal to (I) 85% of Total Receivables plus 60% of Total Inventories less (II) €250,000,000;
(iii) any Existing Debt of the Parent Guarantor or any Restricted Subsidiary (other than Debt described in clauses (i) and (ii) of this Section 4.06(b));
(iv) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of intercompany Debt between the Parent Guarantor and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that:
(A) if an Issuer or a Guarantor is the obligor on any such Debt, unless required by a Credit Facility and only to the extent legally permitted, such Debt must be unsecured (except in respect of the intercompany current liabilities Incurred in the ordinary course of business in connection with cash management, cash pooling, tax and accounting operations of the Parent Guarantor and its Restricted Subsidiaries); and
(B) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Parent Guarantor or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Parent Guarantor or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Parent Guarantor or any Restricted Subsidiary of Debt of the Parent Guarantor or any Restricted Subsidiary to the extent that the guaranteed Debt was permitted to be incurred by another provision of this Section 4.06;
(vi) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property, plant, equipment or other assets used in the Parent Guarantor’s or any Restricted Subsidiary’s business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (vi) and still outstanding shall not in the aggregate exceed the greater of €150,000,000 and 2.0% of Total Assets; and provided, further, that the total principal amount of all any Debt Incurred in connection with an acquisition or development permitted under this clause (vi) did not in each case at the time of Incurrence exceed (A) the Fair Market Value of the acquired or constructed asset or improvement so financed or (B) in the case of an uncompleted constructed asset, the amount of the asset to be constructed, as determined on the date the contract for construction of such asset was entered into by the Parent Guarantor or the relevant Restricted Subsidiary (including, in each case, any reasonable related fees and expenses Incurred in connection with such acquisition, construction or development);
(vii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt at any one time outstanding (arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock (other than guarantees or similar credit support given by the Parent Guarantor or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition); provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofvii) shall not at no time exceed $5,000,000the net proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(dviii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under any Commodity Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(eix) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt arising from judgments or decrees under Currency Agreements entered into in the ordinary course of business and not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(fx) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt owing to a Person that is a Credit Party, but only to under Interest Rate Agreements entered into in the extent permitted under Section 8.7 hereofordinary course of business and not for speculative purposes;
(gxi) the Comerica Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the Subordinated Debtborrowing of money or the obtaining of advances or credit;
(hxii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary arising under from (A) the Surety Agreementshonoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of Incurrence, (B) bankers’ acceptances, performance, surety, judgment, completion, payment, appeal or similar bonds, instruments or obligations, (C) completion guarantees, advance payment, customs, VAT or other tax guarantees or similar instruments provided or letters of credit obtained by the Borrowers shall promptly terminate Parent Guarantor or any Restricted Subsidiary in the Liberty Mutual Indemnity Agreement ordinary course of business, and any other Bond Documents related thereto following (D) the completion financing of insurance premiums in the construction projects set forth on Schedule 8.1(i)ordinary course of business;
(xiii) any Debt of the Parent Guarantor or any Restricted Subsidiary Incurred pursuant to any Permitted Receivables Financing;
(xiv) the Incurrence by a Person of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in, Section 4.06(a), sub-clauses (i) additional unsecured and (iii), this sub-clause (xiv) and sub-clauses (xviii), (xix) and (xx) of this Section 4.06(b), as the case may be;
(xv) guarantees by the Parent Guarantor or a Restricted Subsidiary of Debt Incurred by Permitted Joint Ventures in an aggregate principal amount at any one time outstanding not to exceed an amount equal to the greater of €75,000,000 and 1.0% of Total Assets;
(xvi) cash management obligations and Debt in respect of netting services, pooling arrangements or similar arrangements in connection with cash management in the ordinary course of business consistent with past practice;
(xvii) (i) take-or-pay obligations in the ordinary course of business, (ii) customer deposits and advance payments in the ordinary course of business received from customers for goods or services purchased in the ordinary course of business and (iii) manufacturer, vendor financing, customer and supply arrangements in the ordinary course of business;
(xviii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (i) through (xvii) above and clauses (xix) and (xx) below) in an aggregate principal amount at any one time outstanding not to exceed, together with any Permitted Refinancing Debt in respect thereof, the greater of €265,000,000 and 3.5% of Total Assets;
(xix) Debt of any Person (x) Incurred and outstanding on the date on which such Person becomes a Restricted Subsidiary of the Parent Guarantor or another Restricted Subsidiary of the Parent Guarantor or is merged, consolidated, amalgamated or otherwise described abovecombined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Parent Guarantor or any Restricted Subsidiary or (y) Incurred to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Parent Guarantor or a Restricted Subsidiary; provided, provided however, with respect to each of sub-clause (x) and (y) of this Section 4.06(b)(xix), that both at the time of and immediately such acquisition or other transaction (1) the Parent Guarantor would have been able to Incur €1.00 of additional Indebtedness pursuant to Section 4.06(a) after giving effect to the incurrence thereof Incurrence of such Indebtedness pursuant to this Section 4.06(b)(xix) or (2) the Fixed Charge Coverage Ratio of the Parent Guarantor and its Restricted Subsidiaries would not be less than it was immediately prior to giving pro forma effect to such acquisition or other transaction; and
(xx) ontribution Debt.
(c) Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Debt of the same class will not be deemed to be an Incurrence of Debt for purposes of this Section 4.06.
(d) For purposes of determining compliance with any restriction on the Incurrence of Debt in euros where Debt is denominated in a different currency, the amount of such Debt will be the Euro Equivalent determined on the date of such determination; provided that if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to euros) covering principal amounts payable on such Debt, the amount of such Debt expressed in euros shall be adjusted to take into account the effect of such agreement. The principal amount of any Permitted Refinancing Debt Incurred in the same currency as the Debt being refinanced shall be the Euro Equivalent of the Debt refinanced determined on the date such Debt being refinanced was initially Incurred. Notwithstanding any other provision of this Section 4.06, for purposes of determining compliance with this Section 4.06, increases in Debt solely due to fluctuations in the exchange rates of currencies will not be deemed to exceed the maximum amount that an Issuer, the Parent Guarantor or a Subsidiary Guarantor may Incur under this Section 4.06.
(e) For purposes of determining any particular amount of Debt under this Section 4.06:
(i) no Default obligations with respect to letters of credit, guarantees or Event Liens, in each case supporting Debt otherwise included in the determination of Default such particular amount shall have occurred not be included;
(ii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.07 shall not be continuing treated as Debt;
(iii) accrual of interest, accrual of dividends, the accretion of accreted value, the obligation to pay commitment fees and the payment of interest in the form of additional preferred stock or result therefrom Debt shall not be treated as Debt; and
(iv) the reclassification of preferred stock as Debt due to a change in accounting principles shall not be treated as Debt.
(f) In the event that an item of Debt meets the criteria of more than one of the types of Debt described in this Section 4.06, the Parent Guarantor, in its sole discretion, shall classify items of Debt and shall only be required to include the amount and type of such Debt in one of such clauses and the Parent Guarantor shall be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 4.06, and may change the classification of an item of Debt (or any portion thereof) to any other type of Debt described in this Section 4.06 at any time.
(g) The amount of any Debt outstanding as of any date will be:
(i) in the case of any Debt issued with original issue discount, the amount of the liability in respect thereof determined in accordance with IFRS;
(ii) the aggregate principal amount of all the Debt, in the case of any other Debt; and
(iii) in respect of Debt of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Debt shall not exceed $1,000,000 at any one time outstandingof the other Person.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness Holdings will not, and will not permit any of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) its Restricted Subsidiaries to, Incur any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancingincluding Acquired Debt), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Dateunless, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings Incurrence of such Debt on terms substantially and the same or better than those in effect at the time receipt and contemporaneous application of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);proceeds therefrom,
(i) additional unsecured Debt not otherwise described above, provided that both The Interest Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be (1) at any time of prior to August 1, 2001, greater than 1.75:1 and immediately (2) at anytime on or after giving effect to the incurrence thereof August 1, 2001, greater than 2.0:1; and
(iii) no Default or Event of Default shall have occurred and be continuing at the time or result as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA, as defined, and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to both the Incurrence or assumption of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA, of the EBITDA of the acquired Person, business, property or assets or redesignated Subsidiary.
(iid) Notwithstanding the aggregate amount first paragraph above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) The Incurrence of all such Debt solely to develop a Stopping Center shall be determined in accordance with the definition of "Incur" set forth in Section 1.1. The accretion of original issue discount (and any accruals of interest or payment of interest in Add-On Notes) on the Notes shall not exceed $1,000,000 at any one time outstandingbe deemed an incurrence of Debt for purposes of this covenant.
Appears in 1 contract
Limitation on Debt. Create(a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, create, issue, incur, assume assume, guarantee or suffer in any manner become directly or indirectly liable with respect to exist any Debtor otherwise become responsible for, except:
contingently or otherwise, the payment of (a) Indebtedness of any Credit Party individually and collectively, to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) “incur” or, as appropriate, an “incurrence”), any Debt existing on (including any Acquired Debt); provided that any Permitted Subsidiary shall be permitted to incur Debt (including Acquired Debt) if (i) after giving effect to the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing incurrence of such Debt (provided that (i) and the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount application of the original Debt outstanding proceeds thereof, on the Effective Date (less any principal payments a pro forma basis, no Default or Event of Default would occur or be continuing and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the Issuer for the four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) Section 4.06(a) will not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default or Event the incurrence by Permitted Subsidiaries of Default shall have occurred and be continuing, Debt under Credit Facilities in an aggregate principal amount not to exceed the greater of (i) $700,000,000 and (ii) an amount equal to (I) 85% of Total Receivables plus 70% of Total Inventories less (II) $275,000,000;
(ii) the incurrence by the Issuer of Debt represented by (i) the original Notes issued on the Issue Date and (ii) Additional Notes issued from time to time in payment of interest or Additional Amounts on (x) such Notes or (y) such Additional Notes so issued from time to time;
(iii) any Debt of the Issuer or any of its Restricted Subsidiaries (other than Debt described in clauses (i) and (ii) of this paragraph (b)); outstanding on the Issue Date;
(iv) the incurrence by the Issuer or any of its Restricted Subsidiaries of intercompany Debt between the Issuer and any of its Restricted Subsidiaries or between or among Restricted Subsidiaries; provided that:
(A) if the Issuer is the obligor on any such Debt, such Debt must be unsecured (except in respect of the intercompany current liabilities incurred in the ordinary course of business in connection with cash management, cash pooling, tax and accounting operations of the Issuer and its Restricted Subsidiaries); and
(A) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary of the Issuer) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Issuer or another Restricted Subsidiary of the Issuer ceases to be a Restricted Subsidiary of the Issuer, will, in each case, be deemed to be an incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of (i) the Issuer’s Debt by Restricted Subsidiaries that are not Permitted Subsidiaries; (ii) Debt of any of its Restricted Subsidiaries that are not Permitted Subsidiaries by any Restricted Subsidiary that is not a Permitted Subsidiary; and (iii) Debt of any Permitted Subsidiary by any Permitted Subsidiary to the extent that the guaranteed Debt was permitted to be incurred by another provision of this Section 4.06;
(vi) the incurrence by any Permitted Subsidiaries of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property or assets, in each case, incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property, plant, equipment or other assets used in any Permitted Subsidiary’s business (including any reasonable related fees or expenses incurred in connection with such acquisition or development); provided that the principal amount of such Debt so incurred when aggregated with other Debt previously incurred in reliance on this clause (vi) and still outstanding shall not in the aggregate exceed the greater of $510,000,000 and 6.0% of Total Assets; and provided, further, that the total principal amount of all any Debt incurred in connection with an acquisition or development permitted under this clause (vi) did not in each case at the time of incurrence exceed (A) the Fair Market Value of the acquired or constructed asset or improvement so financed or (B) in the case of an uncompleted constructed asset, the amount of the asset to be constructed, as determined on the date the contract for construction of such asset was entered into by the relevant Permitted Subsidiary (including, in each case, any reasonable related fees and expenses incurred in connection with such acquisition, construction or development);
(vii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Debt at any one time outstanding (arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock (other than guarantees or similar credit support given by the Issuer or any of its Restricted Subsidiaries of Debt incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition); provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofvii) shall not at no time exceed $5,000,000the net proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(dviii) the incurrence by any Permitted Subsidiary of Debt under any Commodity Hedging Transactions, provided that such transaction is entered into for risk management purposes and Agreements not for speculative purposes;
(eix) the incurrence by the Issuer or any of its Restricted Subsidiaries of Debt arising from judgments or decrees under Currency Agreements not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(fx) the incurrence by the Issuer or any of its Restricted Subsidiaries of Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereofInterest Rate Agreements not for speculative purposes;
(gxi) the Comerica incurrence of Debt by the Issuer or any of its Restricted Subsidiaries of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the Subordinated Debtborrowing of money or the obtaining of advances or credit;
(hxii) the incurrence of Debt by the Issuer or any of its Restricted Subsidiaries arising under from (A) the Surety Agreementshonoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of incurrence, (B) bankers’ acceptances, performance, surety, judgment, completion, payment, appeal or similar bonds, instruments or obligations, (C) completion guarantees, advance payment, customs, VAT or other tax guarantees or similar instruments provided or letters of credit obtained by any Permitted Subsidiary in the Borrowers shall promptly terminate ordinary course of business, and (D) the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following financing of insurance premiums in the completion ordinary course of the construction projects set forth on Schedule 8.1(i)business;
(xiii) any Debt of Permitted Subsidiaries incurred pursuant to any Permitted Receivables Financing;
(xiv) the incurrence by a Person of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt incurred by it pursuant to, or described in, paragraphs (a), (b)(ii) and (b)(iii), this paragraph (b)(xiv) and paragraphs (b)(xviii), (b)(xix) and (b)(xx) of this Section 4.06, as the case may be;
(xv) guarantees by Permitted Subsidiaries of Debt incurred by Permitted Joint Ventures in an aggregate principal amount at any one time outstanding not to exceed an amount equal to the greater of $150,000,000 and 2.0% of Total Assets;
(xvi) cash management obligations and Debt in respect of netting services, pooling arrangements or similar arrangements in connection with cash management in the ordinary course of business consistent with past practice;
(xvii) (i) additional unsecured take-or-pay obligations in the ordinary course of business, (ii) customer deposits and advance payments in the ordinary course of business received from customers for goods or services purchased in the ordinary course of business and (iii) manufacturer, vendor financing, customer and supply arrangements in the ordinary course of business;
(xviii) the incurrence of Debt by Permitted Subsidiaries (other than and in addition to Debt permitted under clauses (i) through (xvii) above and clauses (xix) and (xx) below) in an aggregate principal amount at any one time outstanding not to exceed, together with any Permitted Refinancing Debt in respect thereof, the greater of $350,000,000 and 5.0% of Total Assets;
(xix) Debt of any Permitted Subsidiary (x) incurred and outstanding on the date on which such Person becomes a Permitted Subsidiary or is merged, consolidated, amalgamated or otherwise described abovecombined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Permitted Subsidiary or (y) incurred to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Permitted Subsidiary or was otherwise acquired by a Permitted Subsidiary; provided, provided however, with respect to each of clause (xix)(x) and (xix)(y), that both at the time of and immediately such acquisition or other transaction (1) a Permitted Subsidiary would have been able to incur $1.00 of additional Debt pursuant to Section 4.06(a) after giving effect to the incurrence thereof of such Debt pursuant to this clause (ixix) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii2) the Fixed Charge Coverage Ratio of the Issuer and its Restricted Subsidiaries would not be less than it was immediately prior to giving pro forma effect to such acquisition or other transaction;
(xx) Contribution Debt; and
(xxi) the incurrence of Debt by a Permitted Subsidiary consisting of local lines of credit, overdraft facilities or local working capital facilities in an aggregate outstanding principal amount of all such Debt shall not exceed $1,000,000 at any one time outstandingnot to exceed the greater of $75,000,000 and 1.0% of Total Assets.
(c) Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Debt of the same class will not be deemed to be an incurrence of Debt for purposes of this Section 4.06.
(d) For purposes of determining compliance with any restriction on the incurrence of Debt in euros where Debt is denominated in a different currency, the amount of such Debt will be the Euro Equivalent determined on the date of such determination; provided that if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to euros) covering principal amounts payable on such Debt, the amount of such Debt expressed in euros shall be adjusted to take into account the effect of such agreement. The principal amount of any Permitted Refinancing Debt incurred in the same currency as the Debt being refinanced shall be the Euro Equivalent of the Debt refinanced determined on the date such Debt being refinanced was initially incurred.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or and the other Loan Documents;
(b) any Debt of any US/Canadian Company existing on the Effective Restatement Date and set forth in Schedule 8.1 attached hereto (other than pursuant to this Agreement, and other than any Subordinated Debt existing on the Restatement Date), and any renewals or refinancing of such Debt (provided that (i) in amounts not exceeding the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date scheduled amounts (less any principal payments and required amortization according to the amount of any commitment reductions made thereon on or prior to such renewal or refinancingterms thereof), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(ci) any Debt of Borrowers Borrower or any Domestic Subsidiary other than pursuant to this Agreement and other than Debt set forth in Schedule 8.1 attached hereto incurred to finance the acquisition of fixed or capital assets, assets (whether pursuant to a loan or a Capitalized Lease provided that both Lease) in an aggregate amount not exceeding $10,000,000 at any time outstanding, and any renewals or refinancing of such Debt in amounts not exceeding the time of and immediately after giving effect scheduled amounts (less any required amortization according to the incurrence thereof (i) no Default or Event of Default shall have occurred terms thereof), on substantially the same terms and be continuing, otherwise in compliance with this Agreement; and (ii) Debt of any Canadian Subsidiary other than pursuant to this Agreement and other than Debt set forth in Schedule 8.1 attached hereto incurred to finance the acquisition of fixed or capital assets (whether pursuant to a loan or a Capitalized Lease) in an aggregate amount not exceeding $1,000,000 at any time outstanding, and any renewals or refinancing of all such Debt at in amounts not exceeding the scheduled amounts (less any one time outstanding required amortization according to the terms thereof), on substantially the same terms and otherwise in compliance with this Agreement;
(d) (i) Subordinated Debt evidenced by the Convertible Subordinated Notes existing on the Restatement Date, and any renewals or refinancing of such Debt which, in each case have been subordinated on substantially on the same terms, and which shall otherwise be in compliance with this Agreement (including, without limitation, any Section 8.11 hereof), and (ii) subject to Section 3A.11 hereof, other Subordinated Debt of incurred after the type described Restatement Date in this clause (c) which is set forth on Schedule 8.1 hereof) shall an aggregate principal amount not to exceed $5,000,000, and 20,000,000 at any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the one time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposesoutstanding;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default Borrower under subsection (g) of Section 9.1any Hedging Transactions;
(f) Debt owing to a Person that is a Credit Partyintercompany loans, but only to the extent permitted under the other applicable terms and limitations of this Agreement, including but not limited to Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
of any Loan Party assumed pursuant to a Permitted Acquisition (h) expressly excluding Debt arising under the Surety Agreementsevidenced by any Seller Note), provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion such Debt was not entered into, extended or renewed in contemplation of the construction projects set forth on Schedule 8.1(isuch acquisition (including Debt secured by Liens permitted by Section 8.2(c);
(i) additional unsecured Debt not otherwise described above), provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 10,000,000;
(h) Seller Debt not exceeding $10,000,000 in aggregate principal amount at any one time outstanding;
(i) additional unsecured Debt of any Loan Party not exceeding $20,000,000 in aggregate principal amount at any one time outstanding;
(j) Debt of any Canadian Subsidiary to any financial institution which is a Lender hereunder in an amount not to exceed $15,000,000 in aggregate principal amount at any one time outstanding; and
(k) (i) Debt of any Non-US/Canadian Company to the extent guaranteed by any US/Canadian Company, and (ii) Debt of any Non-US/Canadian Company to the extent not guaranteed by any US/Canadian Company provided that the aggregate principal amount of such Debt, when added to the Guarantee Obligations incurred under Section 8.3(g) hereof, shall not exceed $25,000,000 at any one time outstanding.
Appears in 1 contract
Limitation on Debt. CreateThe Issuer will not, incurand the Guarantor will not permit any of the Material Subsidiaries to, assume incur or suffer at any time be liable with respect to exist any Debt, except:Debt except any of the following (as determined on a consolidated basis):
(a) Indebtedness of any Credit Party to Agent and the Lenders Debt under this Agreement and/or the other Loan DocumentsAgreement;
(b) [Reserved];
(c) Debt incurred by the Issuer the net proceeds of which are used solely to refinance all or any Debt existing on portion of the Effective Date Tranche D Notes and set forth in Schedule 8.1 attached hereto to pay related fees and any renewals or refinancing of such Debt (expenses with respect thereto; provided that each of the following conditions is satisfied with respect to such Debt:
(i1) in the case of Debt incurred pursuant to the foregoing clause (c), the aggregate principal amount of such renewed or refinanced Debt shall not exceed (and shall be used solely to pay) the aggregate principal amount outstanding of the Tranche D Notes so refinanced, together with accrued and unpaid interest thereon and all other amounts owing with respect thereto, and the reasonable costs and expenses incurred by the Issuer in connection with the issuance of such Debt,
(2) if such Debt is Secured Debt, the purchasers or lenders of such Secured Debt shall have entered into one or more intercreditor agreements reasonably satisfactory to the Required Interest Holders (provided that so long as any such agreement contains customary terms and conditions, such consent of the Required Interest Holders shall not be unreasonably withheld or delayed),
(3) the average weighted maturity of such Debt shall be at least six years after the Original Closing Date,
(4) the “all-in” cost of such Debt to the Issuer shall not exceed that of the Tranche D Notes so refinanced,
(5) not more than $242,500,000 of the aggregate principal amount of all Debt incurred pursuant to this Section 5.10(c) and Section 5.10(c) of the original Debt outstanding on the Effective Date (less any principal Existing NPFA, collectively, shall have scheduled payments and the amount of any commitment reductions made thereon on or prior to the Principal Payment Date occurring in August 2006 (with such renewal or refinancingaggregate principal amount divided ratably among each Tranche D Lender, such that the aggregate outstanding amount of its Tranche D Notes so refinanced and the aggregate undrawn amount of its Tranche D Commitments under the Existing NPFA so replaced shall not exceed the following limits: $142,155,173 for the Nokia Lenders, $53,517,241 for the Siemens Lenders and $46,827,586 for the Alcatel Lenders), and
(ii6) simultaneously with the renewal or refinancing incurrence of such Debt both of the following conditions shall be on substantially have been satisfied:
(A) the same or better terms as in effect with respect Issuer shall have provided to the Administrative Agent the documentation evidencing such Debt and a Responsible Officers’ Certificate certifying compliance and projected compliance (on the Effective Datea pro forma basis) with Sections 5.11 and 5.12, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;and
(cB) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of immediately before and immediately after giving effect to the incurrence thereof (i) of such Debt no Default or Event of Default shall have occurred exist and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) intercompany Debt under any Hedging Transactions(i) of the Issuer owed to the Guarantor or to a Majority-Owned Subsidiary thereof, (ii) of a Wholly-Owned Subsidiary of the Issuer owed to the Issuer or another Wholly-Owned Subsidiary of the Issuer or (iii) of a Material Subsidiary owed to the Guarantor or a Majority-Owned Subsidiary thereof, provided that any such transaction is entered into for risk management purposes Debt owed by the Issuer (except Debt owed to the Guarantor) shall be subordinated in right of payment to prior satisfaction in full of the obligations of the Issuer and not for speculative purposesthe Guarantor to the Purchasers hereunder on substantially the terms set forth in Schedule 7 hereto and the Issuer and the Guarantor shall enforce, or shall cause each Material Subsidiary, Majority-Owned Subsidiary or Wholly-Owned Subsidiary to enforce, such subordination terms;
(e) Debt arising from judgments of the Issuer or decrees the Material Subsidiaries not deemed otherwise permitted by this Section 5.10; provided that immediately before and after giving effect to the incurrence of such Debt (i) the Guarantor shall be a in compliance with Sections 5.11 and 5.12 and (ii) no Default or Event of Default under subsection (g) of Section 9.1shall exist and be continuing;
(f) Debt owing incurred by the Original Issuer pursuant to a Person Vendor Financing, provided that is a Credit Party, but only to such Vendor Financing must comply with the extent permitted under Section 8.7 hereofprovisions of Sections 5.18(d) and 5.19(d);
(g) Debt of the Comerica Original Issuer up to an aggregate principal amount of $10,000,000 at any time outstanding incurred for the purpose of financing the payment of all or part of the purchase price of property or assets acquired or constructed; provided that the aggregate principal amount of such Debt shall not exceed the lesser of the cost and fair market value of the Subordinated Debtproperty or assets so assigned or constructed;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i)[Reserved];
(i) additional unsecured any Guarantees of the obligations of the Issuer under this Agreement provided by the Material Subsidiaries of the Guarantor under the last paragraph of this Section 5.10; or
(j) Debt not otherwise of the Issuer or a Material Subsidiary which is issued to refund or refinance any Debt outstanding or permitted to be incurred under this Section 5.10 (other than Debt described abovein Section 5.10(c)), provided that both at the principal amount of the Debt so issued shall not exceed the principal amount of the Debt so refinanced and the Debt so issued shall have an average weighted maturity equal to or greater than the average weighted maturity of the Debt so refinanced. Notwithstanding the foregoing provisions of this Section 5.10, but subject to all other terms and conditions of this Agreement, the Material Subsidiaries may incur aggregate Debt in excess of the amounts otherwise permitted to be incurred by the Material Subsidiaries hereunder, provided that all Material Subsidiaries from time of and immediately after giving effect to time shall have first delivered to the incurrence thereof Administrative Agent and thereafter shall maintain in effect an executed joint and several Guaranty of the obligations of the Issuer under the Financing Documents containing provisions substantially similar to those of Article 9 hereof, each such delivery to be accompanied by: (i) no Default or Event the relevant prior authorization in respect of Default shall have occurred and be continuing or result therefrom and such Guaranty from the Central Bank, (ii) customary opinions of independent U.S. and Brazilian counsel regarding the aggregate amount enforceability of all such Debt Guaranty and (iii) such other documents or instruments as the Administrative Agent may reasonably request establishing the validity and enforceability of the Guaranty; provided, further, that upon each designation of Material Subsidiaries in accordance with the definition thereof, any Subsidiary added to such designation promptly shall not exceed $1,000,000 at execute and deliver the foregoing Guaranty, and upon such delivery, any one time outstandingSubsidiary that has been removed from such designation shall be released from its obligation under its Guaranty previously delivered under this paragraph.
Appears in 1 contract
Sources: Note Purchase Facility Agreement (Tele Norte Leste Participacoes Sa)
Limitation on Debt. Create(a) The Company shall not, and shall not permit any Restricted Subsidiary to, incur, assume directly or suffer to exist indirectly, any Debt (including Acquired Debt, except) other than Permitted Debt unless:
(a1) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof of such Debt and the application of the proceeds thereof, the ratio of total Debt to the Company’s Consolidated EBITDA (idetermined on a pro forma basis for the last four full fiscal quarters for which financial statements are available at the date of determination) would be less than 7.5 to 1.0; provided that for purposes of calculating the ratio, Debt shall not include the Existing Preferred Stock; and provided further, however, that if the Debt which is the subject of a determination under this provision is Acquired Debt or Debt to be incurred in connection with the simultaneous acquisition of any Person, business, property or assets, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the four quarter period) to both the incurrence of the Acquired Debt or other Debt by the Company and the inclusion in the Company’s Consolidated EBITDA of the Consolidated EBITDA of the acquired Person, business, property or assets; and
(2) no Default or Event of Default would occur as a consequence of such incurrence or be continuing following such incurrence.
(b) Notwithstanding anything to the contrary contained in this Section 4.06,
(1) accrual of interest, accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Debt (including PIK Notes, if any, issued to satisfy the Company’s interest payment obligations under the Second Priority Notes Indenture), will be deemed not to be an incurrence of Debt for purposes of this Section 4.06; and
(2) for purposes of determining compliance with this Section 4.06, in the event that an item of Debt (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (a) through (k) of such definition or is entitled to be incurred pursuant to clause (1) of Section 4.06(a), the Company will, in its sole discretion, classify (or later reclassify in whole or in part, in its sole discretion) such item of Debt in any manner that complies with this Section 4.06.
(c) The Company shall have occurred and be continuingnot, and (ii) the aggregate amount of all such Debt at shall not permit any one time outstanding (includingSubsidiary Guarantor to, without limitationincur, directly or indirectly, any Debt that is subordinate or junior in right of payment to any Debt unless such Debt is expressly subordinated in right of payment to the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals Notes or refinancings the Subsidiary Guarantee of such Debt on terms substantially Subsidiary Guarantor, as the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingcase may be.
Appears in 1 contract
Limitation on Debt. Create(a) Neither FTL-Cayman nor the Company shall issue, incurdirectly or indirectly, assume or suffer to exist any Debt, except:
unless the Consolidated EBITDA Coverage Ratio (a) Indebtedness as shown by a consolidated pro forma income statement of any Credit Party FTL-Cayman and its consolidated subsidiaries for the Reference Period after giving effect to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount issuance of such renewed or refinanced Debt shall not exceed and (if applicable) the aggregate principal amount application of the original net proceeds thereof to refinance other Debt outstanding on the Effective Date (less any principal payments as if such Debt was issued and the amount application of any commitment reductions made thereon on or prior to such renewal or refinancing)proceeds occurred at the beginning of the Reference Period, (ii) the renewal issuance and retirement of any other Debt since the last day of the most recent fiscal quarter covered by such income statement as if such Debt was issued or refinancing retired at the beginning of the Reference Period and (iii) the acquisition or disposition of any company or business acquired or disposed of since the first day of the Reference Period, including any acquisition or disposition which will be consummated substantially contemporaneously with the issuance of such Debt, as if such acquisition or disposition occurred at the beginning of the Reference Period and (iv) the discontinuance of any operations since the first day of the Reference Period, as if such discontinuance occurred on the first day of the Reference Period) exceeds the ratio of 2.0 to 1.0 through the third anniversary of the Issue Date and exceeds the ratio of 2.5 to 1.0 thereafter; provided, however, the guarantee by FTL-Cayman of any Debt of the Company or any Subsidiary of the Company outstanding on the Issue Date shall not be deemed the issuance of Debt by FTL- Cayman for purposes of this Indenture.
(b) Notwithstanding Section 4.03(a), in addition to the Debt issued by FTL-Cayman or the Company at the time the Consolidated EBITDA Coverage Ratio (calculated as described above) exceeds the applicable ratio set forth above, FTL-Cayman or the Company may issue the following Debt:
(1) Debt borrowed under the Credit Agreement in an aggregate principal amount outstanding at any time not to exceed the greater of (x) $675,000,000 less the amount (not to exceed $75,000,000) of all repayments of the Term Facility under the Credit Agreement and less the amount of any other Debt under the Credit Agreement permanently retired with the Net Available Cash of Asset Sales under Section 4.07 or (y) the sum of (a) 50% of the book value of the inventory of FTL-Cayman and its Subsidiaries and (b) 90% of the book value of the accounts receivable of FTL-Cayman and its Subsidiaries (but excluding any accounts receivable owned by an Accounts Receivable Subsidiary, or which FTL-Cayman or any of its Subsidiaries has agreed to transfer to an Account Receivable Subsidiary in connection with a Qualified Receivables Transaction), in each case as determined in accordance with GAAP;
(2) Debt owed to and held by a Wholly Owned Subsidiary of FTL-Cayman; provided, however, that, if the Company or FTL-Cayman is the obligor on such Debt, such Debt shall be on substantially expressly subordinated to the same or better terms as prior payment in effect full in cash of all obligations with respect to the Securities or the FTL-Cayman Guarantee, as the case may be, and that any subsequent issuance or transfer of any Capital Stock which results in any such Wholly Owned Subsidiary ceasing to be a Wholly Owned Subsidiary of FTL-Cayman or any transfer of such Debt on (other than to a Wholly Owned Subsidiary of FTL-Cayman) shall be deemed, in each case, to constitute the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time issuance of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such DebtDebt by FTL-Cayman;
(c3) any the Securities and the FTL-Cayman Guarantee;
(4) Debt outstanding on the date on which the Securities were originally issued;
(5) Debt created, incurred or assumed in connection with industrial development bond financings for the acquisition, construction and equipping of Borrowers or any Subsidiary incurred manufacturing facilities which are to finance the acquisition of fixed or capital assets, whether pursuant to be used for a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect business related to the incurrence thereof Company's current business, which are located in the United States and which are owned or to be owned by either (i) no Default the Company or Event of Default shall have occurred and be continuing, and (ii) one or more governmental authorities or subdivisions and, in each case, leased to the aggregate Company; provided, however, that the principal amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially does not exceed the same or better than those in effect at the time principal amount of the original incurrence of such Debtrelated industrial development bonds;
(d6) Permitted Refinancing Debt issued in exchange for, or the proceeds of which are used to refund or refinance any Debt permitted by any of clauses (3), (4), or (6) of this Section; and
(7) Debt under in an aggregate principal amount at any Hedging Transactions, provided that such transaction is entered into for risk management purposes and time outstanding not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding150,000,000.
Appears in 1 contract
Sources: Indenture (Fruit of the Loom LTD)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of Notwithstanding anything contained in Section 4.09(b), prior to the Release, the Company will not Incur any Credit Party to Agent and Debt (including Acquired Debt), except for the Lenders under this Agreement and/or the other Loan Documents;Notes.
(b) From and after the Release, the Company and the Guarantors shall not, and shall not permit any Restricted Subsidiary to, Incur any Debt; provided, however, that the Company or any Guarantor may Incur Debt existing and the Company or any Guarantor may Incur Acquired Debt if the Company's Fixed Charge Coverage Ratio for the most recently ended four fiscal quarters for which financial statements have been filed with the Commission pursuant to Section 4.18 immediately preceding the date on which such Debt is Incurred would have been at least 2.00 to 1.00, determined on a pro forma basis (including pro forma application of the Effective Date net proceeds therefrom for such four-quarter period), as if the additional Debt had been Incurred at the beginning of such four-quarter period, with any letters of credit and set forth bankers' acceptances being deemed to have an aggregate principal amount of Debt equal to the maximum amount available thereunder and with any revolving credit facility being deemed to be utilized only to the extent of amounts outstanding thereunder.
(c) Notwithstanding the immediately preceding paragraph, any or all of the following Debt (collectively, "Permitted Debt") may be Incurred:
(1) Debt of the Company or any Guarantor under a Credit Facility; provided that the aggregate principal amount of all such Debt under Credit Facilities shall not exceed $950 million at any time outstanding less (i) the amount of any permanent mandatory repayments of principal of term loans made under a Credit Facility which was Incurred under this clause (1) and (ii) the amount of any permanent mandatory repayments of principal of revolving loans made under a Credit Facility which was Incurred under this clause (1) which are accompanied by a corresponding permanent commitment reduction, in Schedule 8.1 attached hereto each case which are made with Net Available Cash from Asset Sales as required as a result of a sale of assets;
(2) the Notes (excluding any Additional Notes) and related Guarantees and any renewals Notes and related Guarantees issued in exchange for the Notes and related Guarantees pursuant to the Registration Rights Agreement;
(3) Debt of the Company or refinancing any Guarantor in respect of such Debt Capital Lease Obligations and Purchase Money Debt; provided that:
(provided that (iA) the aggregate principal amount of such renewed or refinanced Debt shall secured thereby does not exceed the Fair Market Value (on the date of the Incurrence thereof) of the Property acquired, constructed or leased, and
(B) the aggregate principal amount of all Debt Incurred and then outstanding pursuant to this clause (3) (together with all Permitted Refinancing Debt Incurred and then outstanding in respect of Debt previously Incurred pursuant to this clause (3)) does not exceed $100 million;
(4) Debt (1) of the original Debt outstanding on Company owing to and held by ▇▇▇▇▇ or any Restricted Subsidiary, (2) of a Restricted Subsidiary owing to and held by ▇▇▇▇▇, the Effective Date Company or any other Restricted Subsidiary and (less 3) of ▇▇▇▇▇ owing to and held by any principal payments and the amount Restricted Subsidiary; provided, however, that any subsequent issue or transfer of Capital Stock or other event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any commitment reductions made thereon on such Debt (except to ▇▇▇▇▇, the Company or prior a Restricted Subsidiary) shall be deemed, in each case, to such renewal or refinancing), (ii) constitute the renewal or refinancing Incurrence of such Debt shall be on substantially by the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with issuer thereof not permitted by this Agreement, and clause (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt4);
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d5) Debt under any Hedging Transactions, provided that such transaction is Interest Rate Agreements entered into for risk by the Company, a Guarantor or a Restricted Subsidiary in the ordinary course of their financial management purposes and not for speculative purposes;
(e6) Debt arising from judgments under Currency Exchange Protection Agreements entered into by the Company, a Guarantor or decrees a Restricted Subsidiary in the ordinary course of their financial management and not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(f7) Debt owing to under Commodity Price Protection Agreements entered into by the Company, a Person that is Guarantor or a Credit Party, but only to Restricted Subsidiary in the extent permitted under Section 8.7 hereofordinary course of their financial management and not for speculative purposes;
(g8) Debt of the Company, a Guarantor or any Restricted Subsidiary in connection with (A) one or more letters of credit issued by any of them in the Comerica ordinary course of business with respect to trade payables relating to the purchase of materials by such Persons and (B) other letters of credit, surety, performance, appeal or similar bonds, banker's acceptances, completion guarantees or similar instruments issued in the ordinary course of business of the Company, a Guarantor or a Restricted Subsidiary, including letters of credit or similar instruments pursuant to self-insurance and workers' compensation obligations; provided that upon the drawing of such letters of credit or other instrument, such obligations are reimbursed within 30 days following such drawing; provided, further, that with respect to clauses (A) and (B) above, such Debt and is not in connection with the Subordinated Debtborrowing of money or the obtaining of advances or credit;
(h9) Debt of the Company, a Guarantor or any Restricted Subsidiary arising under from the Surety Agreementshonoring by a bank or other financial institution of a check, draft or similar -62- instrument inadvertently drawn against insufficient funds; provided that such Debt remains outstanding for five Business Days or less;
(10) Debt of the Company, a Guarantor or any Restricted Subsidiary arising from agreements for indemnification and purchase price adjustment obligations and earn-outs or other similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any assets, including Capital Stock and including by way of merger or consolidation; provided that the Borrowers maximum assumable liability in respect of all such obligations shall promptly terminate at no time exceed the Liberty Mutual Indemnity Agreement and gross proceeds actually received by the Company, a Guarantor or any other Bond Documents related thereto following Restricted Subsidiary, including the completion Fair Market Value of the construction projects set forth on Schedule 8.1(i)non-cash proceeds;
(i11) additional unsecured Debt Incurred by a Securitization Entity in connection with a Qualified Securitization Transaction; provided, however, that in the event such Securitization Entity ceases to qualify as a Securitization Entity, such Debt will be deemed, in each case, to be Incurred at such time;
(12) Debt of the Company or a Guarantor consisting of a Guarantee of or a Lien securing, Debt of the Company or a Guarantor; provided that such Debt constitutes Debt that is permitted to be Incurred pursuant to this Section 4.09, but subject to compliance with the other provisions described under Article Four;
(13) Debt in respect of netting services, overdraft protection and otherwise in connection with deposit accounts; provided that such Debt remains outstanding for five Business Days or less;
(14) Debt of the Company, a Guarantor or any Restricted Subsidiary (other than ▇▇▇▇▇▇▇ or its Subsidiaries) that was outstanding on the Issue Date not otherwise described in clauses (1) through (13) above, ; provided that both from and after the Release, this clause (14) shall not include Debt under the Existing ▇▇▇▇▇ Credit Agreement;
(15) Guarantees in the ordinary course of business of the obligations of suppliers, customers, franchisers and licensees;
(16) Permitted Refinancing Debt; and
(17) Debt of the Company, a Guarantor or any Restricted Subsidiary or the issuance of Disqualified Stock in a principal amount or liquidation value, as applicable, outstanding at any one time not to exceed $200 million in the aggregate for all such Debt and Disqualified Stock (which Debt may, but need not, be Incurred, in whole or in part, under a Credit Facility). For the purposes of determining compliance with this Section 4.09, in the event that an item of Debt meets the criteria of more than one of the types of Debt permitted by this covenant or is entitled to be Incurred pursuant to Section 4.09(b), the Company in its sole discretion shall be permitted to classify on the date of its Incurrence, or later reclassify, all or a portion of such item of Debt in any manner that complies with this Section 4.09; provided that all outstanding Debt under the Credit Agreement at the time of the Release shall be deemed to have been Incurred pursuant to clause (c)(i) of this Section 4.09. Debt permitted by this Section 4.09 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and immediately after giving effect in part by one or more other provisions of this Section 4.09 permitting such Debt. For the purposes of determining any particular amount of Debt under this Section 4.09, (a) Guarantees, Liens, obligations with respect to letters of credit and other obligations supporting Debt otherwise included in the determination of a particular amount will not be included and (b) any Liens granted to the incurrence thereof (i) no Default or Event Holders of Default shall have occurred and the Notes that are permitted in Section 4.11 will not be continuing or result therefrom and (ii) treated as Debt. For purposes of determining compliance with any dollar-denominated restriction on the aggregate Incurrence of Debt, with respect to any Debt which is denominated in a foreign currency, the dollar-equivalent principal amount of all such Debt Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Debt was incurred, and any such foreign-denominated Debt may be refinanced or replaced or subsequently refinanced or replaced in an amount equal to the dollar-equivalent principal amount of such Debt on the date of such refinancing or replacement whether or not exceed $1,000,000 at such amount is greater or less than the dollar-equivalent principal amount of the Debt on the date of initial Incurrence. If obligations in respect of letters of credit are Incurred pursuant to the Credit Facility and are being treated as Incurred pursuant to clause (1) of the third paragraph of this Section 4.09 and the letters of credit relate to other Debt, then such other Debt shall be deemed not Incurred. Notwithstanding any one time outstandingother provision of this Section 4.09, neither the Company nor any Guarantor shall Incur any Debt that is expressly subordinated to any other Debt of the Company or such Guarantor unless such Debt is expressly subordinated in right of payment to the Notes or the Notes Guarantee of such Guarantor to the same or a greater extent than such Debt is subordinated to such other Debt.
Appears in 1 contract
Sources: Indenture (Moore Wallace Inc)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of The Issuer shall not, and shall not permit any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) Issuer Restricted Subsidiary to, directly or indirectly, Incur any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided Debt; provided, however, that (i) the aggregate principal amount of such renewed Issuer or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such any Issuer Restricted Subsidiary that is a Guarantor and an Offering Proceeds Note Guarantor may incur any Debt shall be on substantially the same or better terms as in if, after giving pro forma effect with respect to such Debt on Incurrence and the Effective Datereceipt and application of the net proceeds thereof, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing occur as a consequence of such DebtIncurrence or be continuing following such Incurrence and the Issuer Debt Ratio would be less than 5.75 to 1.0.
(b) Notwithstanding the foregoing limitation, the Issuer or any Issuer Restricted Subsidiary may Incur any and all of the following (each of which shall be given independent effect):
(i) Debt of the Issuer or any Issuer Restricted Subsidiary under the Securities issued on the Issue Date, any Note Guarantee in respect of the Securities issued on the Issue Date, any Offering Proceeds Note issued in connection with the Securities issued on the Issue Date or any Offering Proceeds Note Guarantee in respect of the Offering Proceeds Note;
(cii) any Debt of Borrowers the Issuer or any Issuer Restricted Subsidiary incurred to finance under Credit Facilities in an aggregate principal amount outstanding or available (together with the acquisition amount of fixed all refinancing Debt outstanding or capital assets, whether available pursuant to a loan or a Capitalized Lease provided that both at the time clause (vi) below in respect of and immediately after giving effect Debt previously Incurred pursuant to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and this clause (ii) the aggregate amount of all such Debt (other than any Additional Refinancing Amount)) at any one time outstanding not to exceed the greater of (including, without limitation, any x) $5.011 billion and (y) 4.0 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(iii) Debt of the type described in this clause (c) which is set forth Issuer or any Issuer Restricted Subsidiary outstanding on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such DebtMeasurement Date;
(div) Debt under owed by (A) the Issuer to any Hedging TransactionsIssuer Restricted Subsidiary, (B) any Issuer Restricted Subsidiary to the Issuer or any other Issuer Restricted Subsidiary, provided that in each case of clause (A) and (B), (x) upon the transfer, conveyance or other disposition by such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Issuer Restricted Subsidiary or the Issuer of any Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing so permitted to a Person that is a Credit Partyother than the Issuer or another Issuer Restricted Subsidiary or (y) if for any reason such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, but only the provisions of clause (A) or clause (B), as applicable, shall no longer be applicable to the extent permitted under Section 8.7 hereof;
(g) the Comerica such Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.be deemed to have been
Appears in 1 contract
Sources: Indenture (Level 3 Parent, LLC)
Limitation on Debt. Create, incur, assume or suffer to exist The Company shall not incur any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such additional Debt (provided that (iother than Subordinated Debt) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing unless no Default or Event of Default has occurred and is continuing continuing, or would result from exist immediately after giving effect to, the renewal or refinancing incurrence of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease ; provided that both (A) if a Default or an Event of Default shall have occurred and is continuing at the time of and immediately the incurrence of any Subordinated Debt, the net proceeds from the incurrence of such Subordinated Debt shall be applied to cure such Default or Event of Default to the extent such Default or Event of Default, after giving pro forma effect to the incurrence thereof of such Subordinated Debt, can be so cured, and (iB) no Default or if a Payment Event of Default shall have occurred and be continuing, no such Subordinated Debt shall be incurred. Any such additional Debt permitted by the preceding sentence (other than (i) any bank or other credit facilities (whether of a revolving nature or not) between the Company and any lenders under which facilities the borrowings outstanding, the face amount of any letters of credit outstanding and any unfunded commitments to extend credit exceed, in the aggregate, $70,000,000 or (ii) any Subordinated Debt, each of which in case of clause (i) and (ii) shall be unsecured) may be secured on a pari passu basis with the aggregate amount Notes pursuant to the terms and conditions of all the Mortgage Indenture (any such Debt secured Debt, “Permitted Additional Senior Secured Debt”). Further, the Company shall not, at any one time outstanding (includingtime, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered enter into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default any Hedging Agreement for speculative purposes or Event of Default shall have occurred and be continuing or result therefrom and (ii) any Hedging Agreement if the aggregate amount obligations of all such Debt shall the Company relating thereto would not exceed $1,000,000 at any one time outstandingbe reflected in the calculation of the Company’s revenue requirement to be collected under the OATT.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer The Company will not Incur and will not permit any Subsidiary of the Company to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) Incur any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)unless, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence Incurrence of such Debt and the receipt and application of the proceeds thereof, the Consolidated Cash Flow Ratio for the four full fiscal quarters for which quarterly or annual financial statements are available immediately preceding the Incurrence of such Debt, calculated on a pro forma basis as if such Debt had been Incurred, and proceeds thereof had been applied, at the beginning of such four full fiscal quarters, would be greater than 2.0 to 1 (the "Debt Incurrence Provision"). Notwithstanding the foregoing, the Company and its Subsidiaries will be permitted to incur the following Debt:
(i) no Default or Event of Default shall have occurred and be continuing, and Debt under the Notes (excluding Additional Notes);
(ii) Debt not covered by any other Clause of this covenant outstanding on the aggregate amount date of all this Indenture;
(iii) Debt owed by the Company to any Wholly-Owned Subsidiary of the Company (provided that such Debt is at all times held by a Person which is a Wholly-Owned Subsidiary of the Company); provided, however, that, for purposes of this Section 1011, upon either (x) the transfer or other disposition by a Wholly-Owned Subsidiary of the Company of any Debt so permitted to a Person other than the Company or another Wholly-Owned Subsidiary of the Company or (y) the issuance (other than Qualified Capital Stock), sale, lease, transfer or other disposition of shares of Capital Stock (including by amalgamation, consolidation or merger) of such Wholly-Owned Subsidiary to a Person other than the Company or another Wholly-Owned. Subsidiary of the Company, the provisions of this Clause (iii) shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred at the time of such transfer or other disposition;
(iv) Debt under one or more Working Capital Facilities or similar arrangements in an aggregate principal amount at any one time outstanding not to exceed the Borrowing Base of the Company and its Subsidiaries plus U.S.$100 million or its equivalent in Canadian dollars; provided, however, that such U.S.$100 million shall not be secured by a Lien on any asset of the Company or its subsidiaries other than Inventory or Receivables of the Company and its Subsidiaries;
(includingv) Debt Incurred to renew, extend, refinance or refund any Debt permitted to be incurred pursuant to the Debt Incurrence Provision and in Clause (i), (ii) or (iii) above or (ix) below; provided, however, that the principal amount of such Debt does not exceed the principal amount (or accreted value in the case of Debt issued at an original issue discount) of Debt so renewed, extended, refinanced or refunded plus the amount of any premium required to be paid in connection with such refinancing pursuant to the terms of the Debt refinanced or the amount of any premium reasonably determined by the Company as necessary to accomplish such refinancing by means of a tender offer or privately negotiated repurchase, plus the expenses of the Company in connection with such refinancing; and provided, further, that (A) in the case of any refinancing or refunding of Debt which is pari passu with the Notes or the Guarantee, as the case may be, the refinancing or refunding Debt is made pari passu with the Notes or the Guarantee, as the case may be, and, in the case of any refinancing or refunding Debt which is subordinated in right of payment to the Notes, the refinancing or refunding Debt is made subordinated to the Notes, at least to the same extent as the Debt being refinanced or refunded and (B) in any case, the refinancing or refunding Debt by its terms, or by the terms of any agreement or instrument pursuant to which such Debt is issued, (x) does not provide for payments of principal of such Debt at the stated maturity thereof or by way of a sinking fund applicable thereto or by way of any mandatory redemption, defeasance, retirement or repurchase thereof by the Company (including any redemption, retirement or repurchase which is contingent upon events or circumstances, but excluding any retirement required by virtue of acceleration of such Debt upon an event of default thereunder), in each case prior to the earlier of the final stated maturity of the Debt being refinanced or refunded and the final stated maturity of the Notes and (y) does not permit redemption or other retirement (including pursuant to an Offer to Purchase made by the Company) of such Debt at the option of the holder thereof prior to the earlier of the final stated maturity of the Debt being refinanced or refunded and the final stated maturity of the Notes, other than a redemption or other retirement at the option of the holder of such Debt (including pursuant to an offer to purchase made by the Company) which is conditioned upon the change of control of the Company pursuant to provisions substantially similar to those described in Section 1010; and provided further that any Debt Incurred to renew, extend, refinance or refund any Debt incurred by Spruce Falls Inc. (other than Debt under Working Capital Facilities) shall be Incurred by the Company;
(vi) Excluded Debt of any Excluded Subsidiary;
(vii) Debt of the Company under the Tembec/M▇▇▇▇▇▇ Québec Guarantee or Debt of the Company under the M▇▇▇▇▇▇ Québec Shareholders' Support Agreement, including in both cases, without limitation, any Debt which may be Incurred by the Company to finance the purchase of M▇▇▇▇▇▇ Québec's OSB Mill if required pursuant to the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such DebtM▇▇▇▇▇▇ Québec Shareholders' Support Agreement;
(dviii) Debt under any Hedging Transactions, of a Wholly-Owned Subsidiary issued to and held by the Company or a Wholly-Owned Subsidiary of the Company (provided that such transaction Debt is entered into for risk management purposes and not for speculative purposes;at all times held by the Company or a Wholly-Owned Subsidiary of the Company); and
(eix) Debt arising from judgments or decrees not deemed otherwise permitted to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing Incurred pursuant to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
Clauses (i) additional unsecured Debt not otherwise described through (viii) above, provided that both at the time which, together with any other outstanding Debt Incurred pursuant to this Clause (ix) has an aggregate principal amount not in excess of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 U.S.$100,000,000 at any one time outstanding.
Appears in 1 contract
Sources: Indenture (Tembec Industries Inc)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 9.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at incurred during any one time outstanding Fiscal Year (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 9.1 hereof) shall not exceed $5,000,0002,000,000, and any renewals or refinancings of such Debt on terms substantially (it being understood that Indebtedness under the same or better than those in effect at the time of the original incurrence of such Acquisition Credit is not intended to be restricted by this covenant);
(d) Subordinated Debt;
(de) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.110.1;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 9.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;; and
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 2,000,000 at any one time outstanding.
Appears in 1 contract
Sources: Credit Agreement (National Technical Systems Inc /Ca/)
Limitation on Debt. CreateNone of the Consolidated Parties ------------------ will, or will permit any of their respective Subsidiaries to, incur, create, assume or suffer permit to exist any Debt, Debt or Derivatives Obligations except:
(aii) Indebtedness Debt of any the Credit Party to Agent and the Lenders Parties under this Agreement and/or and the other Loan Credit Documents;
(biii) any purchase money Debt existing on (including Capital Leases) or Synthetic Leases of the Borrower and its Subsidiaries incurred after the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing to finance the purchase of such Debt (capital assets acquired after the Effective Date; provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (iiA) the aggregate amount of all such Debt (together -------- with refinancings thereof permitted by clause (v) below) does not exceed ---------- $22,500,000 at any one time outstanding outstanding, (includingB) the Debt when incurred shall not be more than 100% of the lesser of the cost or fair market value as of the time of acquisition of the asset financed, without limitation(C) such Debt is issued and any Liens securing such Debt are created concurrently with, or within 90 days after, the acquisition of the asset financed and (D) no Lien securing such Debt shall extend to or cover any property or asset of any Consolidated Party other than the asset so financed;
(iv) Debt of the type Borrower or its Subsidiaries secured by Liens permitted by Sections 7.02(x), (xi) and (xii) in an aggregate outstanding ---------------- ---- ----- principal amount (together with refinancings thereof permitted by clause ------ (v) below) not exceeding $5,000,000; provided that (A) such Debt was not --- -------- incurred in connection with, or in anticipation of, the events described in such Sections and (B) such Debt does not constitute debt for borrowed money (it being understood that Capital Leases, Synthetic Leases and purchase money Debt shall not constitute debt for borrowed money solely for purposes of this clause (civ)); ------------
(v) which is set forth on Schedule 8.1 hereofDebt of the Borrower or its Subsidiaries representing a refinancing, replacement or refunding of Debt permitted by clause (i), ---------- (iii), or (iv) shall above; provided that the aggregate principal amount of such ----- -- ---- -------- Debt outstanding or available and the interest rate per annum payable by the Borrower and its Subsidiaries with respect to such Debt will not exceed $5,000,000be increased, and any renewals or refinancings the weighted average remaining life to maturity of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence will not be decreased by reason of such Debtrefinancing, replacement or refunding;
(dvi) Debt Derivatives Obligations of the Borrower or any Subsidiary under any Hedging Transactions, provided that such transaction is Derivatives Agreements to the extent entered into for risk management purposes before or after the Effective Date in compliance with Section 6.12 or to manage interest rate, ------------ foreign currency exchange rates or fuel prices and not for speculative purposes;
(evii) Debt arising from judgments or decrees not deemed consisting of Guarantees (A) by the Borrower of Debt and leases permitted to be a Default incurred by Wholly-Owned Domestic Subsidiaries of the Borrower (B) by Domestic Subsidiaries of the Borrower of Debt and leases permitted to be incurred by the Borrower or Event Wholly-Owned Domestic Subsidiaries of Default under subsection the Borrower and (gC) by Foreign Subsidiaries of Section 9.1Debt and leases permitted to be incurred by Wholly-Owned Foreign Subsidiaries of the Borrower;
(fviii) Debt owing to the Borrower or a Person that is a Credit Party, but only Subsidiary of the Borrower to the extent permitted under by Section 8.7 hereof;7.06(a)(x), (xi) or (xii); ------------------ ---- -----
(gix) Debt of the Comerica Debt Borrower, the Co-Issuer and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion Subsidiary Guarantors in respect of the construction projects set forth on Schedule 8.1(iSenior Subordinated Notes (but not including any renewal, refinancing or extension thereof);
(ix) additional unsecured Debt incurred by any Subsidiary which is not a Wholly-Owned Subsidiary in an aggregate principal amount for all such Subsidiaries not exceeding $15,000,000 at any time outstanding; 103
(xi) Debt of the Borrower or any of its Subsidiaries in respect of performance, appeal and surety bonds, completion guarantees, insurance bonds and other similar bonds provided by the Borrower or such Subsidiary in the ordinary course of business;
(xii) Debt by the Borrower or any of its Subsidiaries arising from agreements of the Borrower or such Subsidiary providing for, and in respect of, indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Capital Stock of a Subsidiary permitted under this Agreement or any other Loan Document, but excluding Guaranty Obligations in respect of indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided that: (A) such Debt is -------- ---- not reflected on the balance sheet of the Borrower or any of its Subsidiaries (contingent obligations referred to in a footnote or footnotes to financial statements and not otherwise described above, provided reflected on the balance sheet will not be deemed to be reflected on that both balance sheet for purpose of this clause (A); and (B) the maximum assumable liability in respect of that Debt shall at no time exceed the gross proceeds including noncash proceeds (the fair market value of those noncash proceeds being measured at the time of received and immediately after without giving effect to any subsequent changes in value) actually received by the incurrence thereof Borrower and/or that Subsidiary in connection with that disposition; and
(ixiii) Debt of the Borrower and its Subsidiaries not otherwise permitted by this Section incurred after the Effective Date in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that (A) the credit documentation with respect to such Debt shall -------- not contain covenants or default provisions relating to the Borrower or any of its Subsidiaries that are more restrictive than the covenants and default provisions contained in the Credit Documents, (B) no Default or Event of Default shall have occurred and be continuing or result therefrom immediately before and immediately after giving effect to such incurrence and (iiC) the aggregate amount Borrower shall have delivered to the Administrative Agent a certificate demonstrating that, upon giving effect on a Pro-Forma Basis to the incurrence of all such Debt and to the concurrent retirement of any other Debt of any Consolidated Party, the Credit Parties shall not exceed $1,000,000 at any one time outstanding.be in compliance with the financial covenants set forth in Section 7.18. ------------
Appears in 1 contract
Limitation on Debt. Create(a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume assume, guarantee or suffer otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, “incur”), any Debt (including any Acquired Debt), unless such Debt is incurred by the Company or any Guarantor and, in each case, the Company’s Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Debt taken as one period is at least equal to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the “Permitted Debt”):
(i) Debt of the Company or any Restricted Subsidiary under the Credit Agreement, any Credit Facility or the U.K. Credit Agreement in an aggregate principal amount at any one time outstanding not to exceed $1,900,000,000 in any case under these agreements or in respect of letters of credit under these agreements;
(ii) Debt of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Debt of the Company pursuant to the Securities issued on the Issue Date and Debt of any Guarantor pursuant to a Guarantee of such Securities;
(iv) Debt of the Company or any Restricted Subsidiary outstanding on the Issue Date and not otherwise referred to in this definition of “Permitted Debt;”
(v) Debt of the Company owing to a Restricted Subsidiary; provided that any Debt existing on of the Effective Date Company owing to a Restricted Subsidiary that is not a Guarantor is unsecured and set forth is subordinated in Schedule 8.1 attached hereto right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company’s obligations under the Securities; provided, further, that any renewals disposition, pledge or refinancing transfer of any such Debt to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary or a pledge to a lender under a Credit Facility, provided that such lender has not commenced an enforcement action with respect thereto) shall be deemed to be an incurrence of such Debt by the Company or other obligor not permitted by this clause (v);
(vi) Debt of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any disposition, pledge or transfer of any such Debt to a Person (iother than a disposition, pledge or transfer to the Company or a Restricted Subsidiary or a pledge to a lender under a Credit Facility, provided that such lender has not commenced an enforcement action with respect thereto) the aggregate principal amount shall be deemed to be an incurrence of such renewed Debt by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 10.13;
(viii) obligations of the Company or refinanced any Restricted Subsidiary (a) pursuant to Interest Rate Agreements related to Debt shall as long as such obligations do not exceed the aggregate principal amount of such Debt then outstanding, (b) under any Currency Hedging Agreements; provided, however, that such Currency Hedging Agreements do not increase the original Debt or other obligations of the Company or any Restricted Subsidiary outstanding on the Effective Date other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (less c) under any principal payments and Commodity Price Protection Agreements which do not increase the amount of Debt or other obligations of the Company or any commitment reductions made thereon on Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or prior to by reason of fees, indemnities and compensation payable under such renewal or refinancingCommodity Price Protection Agreements, and guarantees by Guarantors in respect thereof; provided that in the case of each of clauses (a), (iib) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall agreements are not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(eix) (a) Debt arising from judgments of the Company or decrees any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other Debt incurred or assumed in connection with the acquisition, construction, improvement or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction, improvement or development of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not deemed to be a Default or Event exceed the greater of Default under subsection (gi) $300,000,000 and (ii) 4% of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, Company’s Consolidated Total Assets outstanding at any time; provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and principal amount of any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
Debt permitted under this clause (iix) additional unsecured Debt did not otherwise described above, provided that both in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed; and immediately (b) Debt consisting of obligations incurred under mortgage facilities of the Company and any Restricted Subsidiary in an aggregate principal amount not to exceed $100,000,000 at any one time outstanding;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets;
(xi) Debt incurred by the Company or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit, including letters of credit in respect of workers’ compensation claims, or other Debt with respect to reimbursement type obligations regarding workers’ compensation claims; provided that upon the drawing of such letters of credit, such obligations are reimbursed within 30 days following such drawing or incurrence or supported under the Credit Agreement, the U.K. Credit Agreement or any Credit Facility;
(xii) Debt of Foreign Subsidiaries in the aggregate amount outstanding pursuant to this clause (xii) at any time not to exceed (x) $600,000,000 plus (y) 10% of the Consolidated Tangible Assets of the Company;
(xiii) guarantees by the Company or a Restricted Subsidiary of Debt of the Company or a Restricted Subsidiary that was permitted to be incurred under this Section 10.8;
(xiv) any renewals, extensions, substitutions, refundings, refinancings or replacements (collectively, a “refinancing”) of any Debt incurred pursuant to paragraph (a) above or clauses (iii), (iv) and this clause (xiv) of this Section 10.8(b), including any successive refinancings so long as: (A) the borrower under such refinancing is the Company or, if not the Company, the same as the borrower of the Debt being refinanced; (B) the aggregate principal amount of Debt represented thereby (or if such Debt provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity of such Debt, the original issue price of such Debt plus any accreted value attributable thereto since the original issuance of such Debt) does not exceed the initial principal amount of such Debt plus the lesser of (I) the stated amount of any premium or other payment required to be paid in connection with such a refinancing pursuant to the terms of the Debt being refinanced or (II) the amount of premium or other payment actually paid at such time to refinance the Debt, plus, in either case, the amount of the expenses of the Company incurred in connection with such refinancing; (C) in the case of any refinancing of Debt that is Subordinated Debt, such new Debt is made subordinated to the Securities at least to the same extent as the Debt being refinanced; and (D) in the case of Pari Passu Debt or Subordinated Debt, as the case may be, such new Debt (x) has an Average Life to Stated Maturity greater than the remaining Average Life to Stated Maturity of (i) the Securities or (ii) the Debt to be refinanced, and (y) has a Stated Maturity for its final scheduled principal payment later than the Stated Maturity for the final scheduled principal payment of (i) the Securities or (ii) the Debt to be refinanced;
(xv) Debt of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Debt is extinguished within five Business Days of incurrence;
(xvi) obligations in respect of performance, bid, appeal and surety bonds and completion guarantees and similar obligations provided by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvii) (x) Debt incurred or issued by the Company or any of its Restricted Subsidiaries to finance an acquisition and/or (y) Acquired Debt of the Company or any of its Restricted Subsidiaries; provided that after giving effect to such acquisition and the incurrence of such Debt, either (A) the Company can incur $1.00 of additional Debt (other than Permitted Debt) under paragraph (a) of this Section 10.8, or (B) in the case of clause (y) only, the Company’s Consolidated Fixed Charge Coverage Ratio would be equal to or greater than that in effect immediately prior to such acquisition;
(xviii) Debt of the Company to the extent the net proceeds thereof are promptly deposited to satisfy and discharge or to defease the Securities as described in Article Four or Article Fifteen hereof, respectively;
(xix) shares of Preferred Stock of a Restricted Subsidiary issued to the Company or a Restricted Subsidiary of the Company; provided that any subsequent transfer of any such shares of Preferred Stock (except to the Company or a Restricted Subsidiary or a pledge to a lender under a Credit Facility, provided that such lender has not commenced an enforcement action with respect thereto) shall be deemed to be an issuance of Preferred Stock that was not permitted by this clause (xix); and
(xx) Debt of the Company and its Restricted Subsidiaries, in addition to that described in clauses (i) no Default through (xix) above, and any renewals, extensions, substitutions, refinancings or Event replacements of Default shall have occurred and be continuing or result therefrom and (ii) such Debt, so long as the aggregate principal amount of all such Debt shall not exceed $1,000,000 300,000,000 outstanding at any one time outstandingin the aggregate. For purposes of determining compliance with this Section 10.8, in the event that an item of Debt meets the criteria of more than one of the types of Debt described in clauses (i) through (xx) above or is entitled to be incurred pursuant to paragraph (a) of this Section 10.8, the Company in its sole discretion may classify or reclassify such item of Debt and only be required to include the amount of such Debt as one of such types. Accrual of interest, accretion or amortization of original issue discount and the payment of interest on any Debt in the form of additional Debt with the same terms, and the payment of dividends on any Redeemable Capital Stock or Preferred Stock in the form of additional shares of the same class of Redeemable Capital Stock or Preferred Stock shall not be deemed to be an incurrence of Debt for purposes of this Section 10.8 provided, in each such case, that the amount thereof as accrued over time is included in the Consolidated Fixed Charge Coverage Ratio of the Company. Debt permitted by this Section 10.8 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this Section 10.8 permitting such Debt. For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Debt denominated in a foreign currency, the U.S. dollar-equivalent principal amount of such Debt incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Debt was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Debt is incurred to extend, replace, refund, refinance, renew or defease other Debt denominated in a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Debt does not exceed the principal amount of such Debt being extended, replaced, refunded, refinanced, renewed or defeased. Except as provided in the prior paragraph, the principal amount of any Debt incurred to extend, replace, refund, refinance, renew or defease other Debt, if incurred in a different currency from the Debt being extended, replaced, refunded, refinanced, renewed or defeased, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Debt is denominated that is in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance.
Appears in 1 contract
Sources: Third Supplemental Indenture (Penske Automotive Group, Inc.)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of The Issuer shall not, and shall not permit any Credit Party Restricted Subsidiary to, incur or be liable with respect to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(bi) any Debt existing on the Effective Date and set forth of a type described in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that clause (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) or (iv) of the renewal definition of "Debt" in Section 1.01 or refinancing (ii) any Guarantee of any such Debt shall be on substantially described in clause (i) above; provided that the same or better terms as in effect with respect to Issuer and its Restricted Subsidiaries may incur such Debt if, on the Effective Datedate of the incurrence, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof and the receipt and application of the proceeds thereof, the Fixed Charge Coverage Ratio (EBITDA) is not less than 3.5:1.
(b) Notwithstanding the foregoing, the Issuer and its Restricted Subsidiaries may incur and be liable for each and all of the following:
(i) no Default or Event of Default shall have occurred and be continuing, and Debt outstanding under the Financing Documents;
(ii) Debt under or in respect of the Exit Facility in an aggregate principal amount not to exceed $120,000,000 less any amounts up to an aggregate not to exceed $45,000,000 by which the commitments under the Exit Facility have been permanently reduced;
(iii) Debt outstanding on the Closing Date, including the Government Settlement and any other obligations arising under the Plan of Reorganization;
(iv) Capital Lease Obligations; provided that the aggregate outstanding principal amount of Debt permitted by this clause (iv) and by clause (v) shall not at any time exceed $25,000,000;
(v) Debt incurred or assumed after the Closing Date for the purpose of financing all or any part of the cost of acquiring or constructing an asset of the Issuer or a Restricted Subsidiary; provided that (A) such Debt is secured by a Lien on such asset that is permitted by Section 7.02(g) and (B) the aggregate outstanding principal amount of all Debt permitted by clause (iv) and this clause (v) shall not at any time exceed $25,000,000;
(vi) Debt of any Person that becomes a Restricted Subsidiary after the Closing Date in connection with an Acquisition; provided that such Debt was outstanding before such Person became a Restricted Subsidiary and was not incurred in contemplation thereof;
(vii) Debt incurred after the Closing Date and Guarantees of Debt entered into after the Closing Date; provided that (A) the Debt so incurred or Guaranteed is incurred in exchange for or to repay, prepay, repurchase, redeem, defease, retire or refinance ("refinance") any outstanding Debt of the Issuer or any Restricted Subsidiary otherwise permitted by this Section and (B) the principal amount of the Debt so incurred or Guaranteed shall not exceed the unpaid principal amount of the Debt so exchanged or refinanced; provided that in connection with any refinancing of the Exit Facility, the principal amount of the Debt incurred or to be incurred pursuant to such refinancing may be in an amount equal to the aggregate amount of all the commitments under the Exit Facility immediately prior to such Debt at any one time outstanding refinancing;
(including, without limitation, any Debt of the type described in this clause (cviii) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Permitted Intercompany Debt;
(dix) Debt consisting of trade obligations arising in the ordinary course of business after the Closing Date;
(x) Debt under Interest Rate Agreements of the Issuer or any Hedging Transactions, provided that such transaction is Restricted Subsidiary relating to Debt permitted to be incurred and outstanding under this Section and entered into in the ordinary course of business for risk management purposes the purpose of limiting interest rate risks and not for speculative purposes;speculation; and
(exi) Debt owed in respect of any overdrafts and related liabilities arising from judgments treasury, depository and cash management services or decrees not deemed to be a Default or Event in connection with any automated clearing house transfers of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingfunds.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan DocumentsSenior Debt;
(b) any Debt of Company or any of its Subsidiaries existing on the Effective Closing Date and set forth in Schedule 8.1 attached hereto (other than any Debt of the type described in clause (c) below) and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Closing Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), and (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms (taken as a whole, as reasonably determined by the Borrowers and the Administrative Agent) as in effect with respect to such Debt on the Effective Closing Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers Company or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default the Credit Parties shall have occurred and be continuing, in pro forma compliance with the financial covenants set forth in Section 7.9 hereof and (ii) the aggregate amount of all such Debt at any one time outstanding (includingoutstanding, without limitation, together with any such Debt of the type described in this incurred under clause (cj) which is set forth on Schedule 8.1 hereof) of this Section 8.1, shall not exceed $5,000,000, and 3,000,000 at any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the one time of the original incurrence of such Debtoutstanding;
(d) Indebtedness;
(e) Debt under any Hedging TransactionsTransactions as defined in and as permitted by the Senior Credit Agreement, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising owing by (i) Peerless Europe Ltd. to Lloyds under the Surety Agreementsits existing credit facility and (ii); Debt owing by B▇▇▇▇▇▇-▇▇▇▇▇▇▇ Europe Ltd to Barclays under its existing credit facility, provided that the Borrowers aggregate amount of all such debt shall promptly terminate the Liberty Mutual Indemnity Agreement and not exceed $10,000,000 at any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);one time outstanding; and
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default the Credit Parties shall have occurred and be continuing or result therefrom in pro forma compliance with the financial covenants set forth in Section 7.9 and (ii) the aggregate amount of all such Debt, together with any such Debt incurred under clause (c) of this Section 8.1, shall not exceed $1,000,000 3,000,000 at any one time outstanding.
Appears in 1 contract
Sources: Senior Subordinated Loan Agreement (Peerless Manufacturing Co)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b1) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and (2) Debt of a third-party existing at the time a Credit Party acquires such third-party or the assets thereof securing such Debt, in each case as part of a Permitted Acquisition, and in each case any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt secured by specified assets of Borrowers or any Subsidiary a Credit Party (other than real property) designated by such Credit Party, whether incurred to finance contemporaneously with the acquisition of fixed such assets or capital assetsat any time thereafter (whether such acquisition was before or after the Effective Date), whether pursuant and including Debt incurred to a loan directly or a Capitalized Lease indirectly refinance any Debt previously incurred under this paragraph, in each case provided that (i) both at the time of and immediately after giving effect to the incurrence thereof (iA) no Default or Event of Default shall have occurred and be continuing, and (B) Borrower, on a Consolidated Basis, is in pro forma compliance with Section 7.9(a) and (b) hereof, (ii) the aggregate principal amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000100% of the sum of the purchase price or cost of the applicable assets, the related costs and charges imposed by the vendors thereof, the costs and charges associated with such financing, and any renewals or refinancings of financing and carrying costs associated with such assets (including interest accrued on any Debt on terms substantially being refinanced), (iii) the same or better security interest in such assets does not cover any assets other than those the assets so designated, plus additions and accessions thereto and proceeds thereof, and (iv) Borrower has delivered to Agent a written request in effect at the time compliance with clause (1)(e) of the original incurrence last paragraph of Section 13.10 hereof with respect to such Debtassets;
(d) Subordinated Debt, not to exceed One Hundred Million Dollars ($100,000,000) in the aggregate at any time outstanding during the term of this Agreement;
(e) Debt under any Hedging Transactions, provided that such transaction (i) is entered into for risk management purposes and not for speculative purposes, or (ii) satisfies the requirements of Section 7.17 hereof;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under incurred in connection with the Surety Agreements, provided that financing of insurance premiums in the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion ordinary course of the construction projects set forth on Schedule 8.1(i)business;
(i) Debt secured primarily by a Credit Party’s real estate (whether fee or leasehold), whether incurred contemporaneously with the acquisition thereof or at any time thereafter, and including Debt incurred to directly or indirectly refinance any Debt previously incurred under this paragraph, in each case provided that (i) both at the time of and immediately after giving effect to the incurrence thereof (A) no Default or Event of Default shall have occurred and be continuing, and (B) Borrower, on a Consolidated Basis, is in pro forma compliance with Section 7.9(a) and (b) hereof, (ii) any security interest in personal property assets securing such Debt is limited to personal property assets located on or associated with such real property and proceeds of such assets (and does not extend to any other assets of such Credit Party), and (iii) either (A) any security interest in such personal property assets securing such Debt is junior in lien priority, in form and content reasonably acceptable to Agent, to the security interest of Agent in such assets under the Collateral Documents (which may include a reasonable contractual subordination in form and content reasonably acceptable to Agent), or (B) such Debt is a sale-leaseback transaction having terms and conditions customary for transactions of such type; and
(j) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingtherefrom.
Appears in 1 contract
Limitation on Debt. Create, incur, assume assume, permit to exist, or suffer otherwise become liable with respect to exist any Debt, except:
(a) Indebtedness Debt of any Credit Party to Agent and the Lenders Borrower existing or arising under this Agreement and/or the and any other Loan DocumentsDocument;
(b) Debt of any Borrower owed to another Borrower;
(c) Debt incurred to finance the acquisition, construction, or improvement of fixed or capital assets (including Capital Lease Obligations) secured by a Lien permitted under Section 7.02(g); provided that (i) such Debt is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, (ii) such Debt when incurred shall not exceed the purchase price or the construction costs of the asset financed, and (iii) the aggregate principal amount of Debt permitted by this Section 7.01(c), shall not exceed $500,000 in the aggregate at any time outstanding;
(d) Debt existing on the Effective Date date hereof and set forth in listed on Schedule 8.1 attached hereto 7.1(d) and any renewals or refinancing refinancings, modifications, renewals, and extensions of any such Debt (Debt; provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed be increased from the aggregate principal amount outstanding at the time of the original Debt outstanding on the Effective Date (less any principal payments such refinancing, modification, renewal, or extension, and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing maturity of such Debt shall not be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreementshortened, and (iii) the terms relating to collateral (if any) and subordination (if any) of any such refinancing, modification, renewing, or extending Debt, and of any agreement entered into and of any instrument issued in connection therewith, are not less favorable in any material respect to the Borrowers or the Lender than the terms of any agreement or instrument governing the Debt being so refinanced, modified, renewed, or extended;
(e) Debt of any Person that becomes a Borrower after the date hereof; provided that (i) such Debt exists at the time of such renewal or refinancing no Default or Event of Default has occurred Person becomes a Borrower and is continuing not created in contemplation of, or would result from the renewal or refinancing of in connection with, such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to Person becoming a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuingBorrower, and (ii) the aggregate principal amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in permitted by this clause (c) which is set forth on Schedule 8.1 hereofSection 7.01(e) shall not exceed $5,000,000, and 500,000 at any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1outstanding;
(f) Debt owing to a Person that is a Credit Party, but only to Guaranty Obligations incurred in the extent permitted under Section 8.7 hereofordinary course of business by any Borrower of obligations of any other Borrower;
(g) current liabilities incurred in the Comerica Debt ordinary course of business including as incurred through the obtaining of credit and for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services (excluding for the Subordinated Debtavoidance of doubt merchant cash advances or any sale of receivables);
(h) Debt incurred by any Borrower arising under from agreements providing for earn-outs, indemnification or from guaranties or letters of credit, surety bonds, performance bonds or other contingent obligations securing the Surety Agreementsperformance of such Borrower pursuant to such agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and permitted dispositions of any other Bond Documents related thereto following the completion business, assets of the construction projects set forth on Schedule 8.1(i)a Borrower or any of its Subsidiaries;
(i) additional unsecured Debt not in respect of netting services, overdraft protections and otherwise described abovein connection with deposit accounts;
(j) non-recourse Debt incurred by a Borrower to finance the payment of insurance premiums of that Borrower;
(k) Debt to any Person providing workers’ compensation, provided that both at the time of and immediately after giving effect health, or disability insurance or other employee benefits or property, casualty, or liability insurance to the incurrence thereof Loan Parties incurred in connection with that Person’s providing those benefits or that insurance pursuant to customary reimbursement or indemnification obligations to that Person;
(il) no Default or Event Debt of Default shall have occurred and be continuing or result therefrom and any Borrower owed to an Affiliate of such Borrower incurred in the ordinary course of business consistent with such Borrower’s historical Affiliate transactions; and
(iim) Other Debt of the Borrowers in an aggregate principal amount of all such Debt shall not to exceed $1,000,000 at any one time outstandingtime; provided that none of such Debt may be secured.
Appears in 1 contract
Limitation on Debt. Create(a) The Issuer shall not create, incur, assume or suffer permit to exist any Debt, except:except (without duplication):
(1) (a) Indebtedness following the occurrence of any the Initial Commencement Date, Debt of the Issuer under Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
Facilities (b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (which may include Additional Notes); provided that (i1) in the case of any Debt incurred pursuant to this clause (a) that is secured by Liens on the Collateral on a pari passu basis with the Notes the Issuer shall have received a Rating Agency Confirmation giving effect to such incurrence or (2) in the case of any Debt incurred pursuant to this clause (a) that is secured by Liens on the Collateral not on a pari passu basis with the Notes, the aggregate principal amount of such renewed or refinanced Debt at any time outstanding would not cause the Issuer’s Debt Service Coverage Ratio to be lower than 1.1:1.0, in each case on a pro forma basis after giving effect to such incurrence; provided, further, that in the case of any Debt incurred pursuant to this clause (a) that is secured by Liens on the Collateral on a pari passu basis with the Notes, such Debt shall not (i) have an earlier final maturity date than the final maturity date applicable to the Notes, or (ii) have any obligors or collateral that are not also obligors or Collateral for the Notes, and (b) any Refinancing of any of the foregoing;
(2) (x) Debt represented by the Notes (other than any Additional Notes), (y) Debt of the Issuer existing on the Issue Date or contemplated by the Issue Date Budget (other than Debt pursuant to clause (2)(x) of this Section 4.04(a)) and (z) any Refinancing of any of the foregoing; provided that such Debt, in the case of this clause (z) that is incurred to Refinance the Notes, shall not have an earlier final maturity date than the Notes;
(3) (x) Debt in an aggregate amount not to exceed, when taken together with all Restricted Payments made in reliance on Section 4.05(b)(2) and 4.05(b)(3), the Available Retained Excess Cash Flow Amount, plus an amount equal to the Declined Asset Sale Proceeds, plus any Excess Termination Fee Funds, plus any Declined Underbudget Amounts; provided that in the case of any Debt incurred pursuant to this clause (3) that is secured by Liens on the Collateral on a pari passu basis with the Notes the Issuer shall have received a Rating Agency Confirmation giving effect to such incurrence and (y) any Refinancing of any of the foregoing;
(4) (a) prior to the Commencement Date, Debt related to the Project in an unlimited amount; provided that the Issuer obtains a Rating Agency Confirmation giving effect to such Debt and (b) any Refinancing of any of the foregoing;
(a) after the Commencement Date, Debt related to the Project, (x) in an unlimited amount so long as the Issuer obtains a Rating Agency Confirmation giving effect to such incurrence or (y) in the case of Debt that is not Pari Passu Debt, in an aggregate principal amount that would not cause the Issuer’s Debt Service Coverage Ratio to be lower than 1.1:1.0 on a pro forma basis after giving effect to such incurrence, and (b) any Refinancing of any of the foregoing;
(6) Debt in respect of repurchase agreements constituting Cash Equivalents;
(7) Debt in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(8) (x) Debt of the Issuer secured by L▇▇▇▇ permitted by clause (13) of the definition of “Permitted Liens” not to exceed in the aggregate, when taken together with any outstanding Debt permitted to be incurred pursuant to Section 4.04(a)(14)(x)(i), $50.0 million at any time outstanding; provided that any such Debt shall be secured only by the Property (and any improvements thereon) acquired in connection with the incurrence of such Debt (it being understood that individual financings provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its Affiliates), and (y) any Refinancing of any of the foregoing;
(9) (x) other Debt of the Issuer in an aggregate principal amount not to exceed $50.0 million at any one time outstanding, plus any accrued interest, fees, premiums or expenses in respect thereof, and (y) any Refinancing of any of the foregoing;
(10) to the extent constituting Debt, contingent obligations of the Issuer under or in respect of performance bonds, bid bonds, appeal bonds, surety bonds, financial assurances and completion guarantees, indemnification obligations, obligations to pay insurance premiums, take or pay obligations and similar obligations in each case of a type incurred in the ordinary course of business of Parent and its subsidiaries and not in connection with Debt for borrowed money and any guarantees or indemnities in respect thereof;
(11) to the extent constituting Debt, Debt of the Issuer arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services in the ordinary course of business; provided that such Debt is extinguished within ten (10) Business Days of its incurrence (or such longer period as may be required due to administrative or processing delays beyond the reasonable control of the Issuer);
(12) [reserved];
(13) [reserved];
(14) (x) (i) Finance Lease Obligations of the Issuer not to exceed, when taken together with any outstanding Debt permitted to be incurred pursuant to Section 4.04(a)(8), an aggregate principal amount of $50.0 million at any time outstanding; provided that any such Debt shall be secured only by the Property (and any improvements thereon) subject to such Finance Lease Obligations (it being understood that individual financings provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its Affiliates); (ii) Finance Lease Obligations of the Issuer in respect of equipment leases entered into in the ordinary course of business; (iii) to the extent constituting Debt (but not Debt for borrowed money), amounts due pursuant to any Project Document; and (iv) Debt initially owed to, or beneficially owned by, a Tenant or Qualifying Tenant to finance the acquisition of any equipment necessary to perform services for such Tenant or Qualifying Tenant, and (y) any Refinancing of any of the foregoing;
(15) trade payables incurred in the ordinary course of business (but not for borrowed money) and (A) not more than ninety (90) days past due or (B) being contested in good faith by appropriate proceedings;
(16) to the extent constituting Debt, financing of insurance premiums and take-or-pay obligations contained in supply arrangements;
(17) contingent obligations resulting from indemnities provided under the Transaction Documents and indemnities provided in the ordinary course under other Project Documents;
(18) obligations of the Issuer under the Project Documents incurred in the ordinary course of business (including any guarantees made, or letters of credit issued, pursuant to or otherwise in connection with the Project Documents) to the extent such amounts are (A) not overdue by more than ninety (90) days or (B) being contested in good faith and by appropriate proceedings and in respect of which adequate reserves are in place in accordance with the Issuer’s standard accounting practices;
(19) to the extent constituting Debt, reimbursement and other payment obligations not constituting Debt for borrowed money owed by the Issuer in respect of a Shared Facilities Arrangement that is effected pursuant to and subject to a Shared Facilities Agreement or in respect of a Commercial Property Association Arrangement that is effected pursuant to any Commercial Property Association Document;
(20) (x) reimbursement obligations in respect of letters of credit issued (a)(i) in an aggregate principal amount not to exceed $100.0 million at any one time outstanding or (ii) for the benefit of the Debt Service Reserve Account in an amount sufficient to cause the amount on deposit in the Debt Service Reserve Account to be equal to the Debt Service Reserve Required Amount, or (b) that do not accrue cash interest, and (y) any Refinancing of any of the foregoing;
(21) following the occurrence of the Commencement Date, (i) Debt of the Issuer in an aggregate principal amount at any time outstanding pursuant to this clause (21) not to exceed an amount equal to the Full Budgeted Cost of Construction minus the aggregate principal amount of the original Debt outstanding Notes issued on the Effective Issue Date (less any principal payments and the outstanding amount of any commitment reductions made thereon on or prior Debt incurred pursuant to such renewal or refinancingthis clause (21), and (ii) any Refinancing of any of the renewal foregoing;
(22) Debt incurred to the extent that the net proceeds thereof are promptly deposited with the Trustee to satisfy and discharge the Notes or refinancing exercise the Issuer’s exercise of its Legal Defeasance option or Covenant Defeasance option as set forth in Article 8;
(23) to the extent not constituting Debt for borrowed money, Debt in connection with any transaction not prohibited by Sections 4.05, 4.06, 4.13 and 4.18, and Article 5;
(24) [Reserved];
(25) (a) upon or after the occurrence of a casualty event with respect to a material portion of the Property of the Issuer, Debt in an aggregate principal amount that would not cause the Issuer’s Debt Service Coverage Ratio to be lower than 1.1:1.0 on a pro forma basis after giving effect to such incurrence; provided that the proceeds of such Debt shall be on substantially applied solely to restore, repair, rebuild or replace the same Property of the Issuer that was affected by such casualty event, and any related or better terms as incidental costs, expenses, transactions or activities in effect connection therewith, and (b) any Refinancing of any of the foregoing;
(26) Debt incurred by the Issuer constituting reimbursement obligations with respect to letters of credit, bank guarantees, banker’s acceptances, warehouse receipts, or similar instruments issued or created, or relating to obligations or liabilities incurred, in the ordinary course of business, including letters of credit in favor of suppliers, customers or trade creditors or in respect of workers’ compensation claims, performance or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Debt with respect to reimbursement type obligations regarding workers’ compensation claims, performance or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance;
(27) Debt arising from agreements of the Issuer providing for indemnification, adjustment of purchase price, earn-outs (including contingent earn-outs) or similar obligations, payment obligations in respect of any non-compete, consulting or similar arrangement or progress payments for property or services or other similar adjustments, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets, or Investment, and Debt arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing performance of the Issuer pursuant to such agreements;
(28) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(29) to the extent constituting Debt, customer deposits and advance payments (including progress premiums) received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(30) (a) Debt owed on a short-term basis to banks and other financial institutions that arises in connection with ordinary banking arrangements to manage cash balances of the Issuer and (b) Debt in respect of Cash Management Obligations;
(31) Debt incurred by the Issuer in connection with bankers’ acceptances, discounted bills of exchange or the discounting or factoring of receivables or payables for credit management purposes, in each case incurred or undertaken in the ordinary course of business;
(32) Debt attributable to (but not incurred to finance) the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, in each case, with respect to any transaction permitted under this Indenture;
(33) Debt in respect of any Tax Saving Transaction; and
(34) guarantees by the Issuer of Debt or other obligations so long as the incurrence of such Debt on or other obligations is not prohibited by the Effective Dateterms of this Indenture.
(b) For purposes of determining compliance with, and shall otherwise be the outstanding principal amount of any particular Debt incurred pursuant to and in compliance with with, this AgreementSection 4.04:
(1) in the event that all or any portion of any item of Debt meets the criteria of more than one of the types of Debt described in Section 4.04(a), the Issuer, in its sole discretion, will classify, and may from time to time reclassify, such item of Debt (iiior any portion thereof) and only be required to include the amount and type of such Debt in one of the clauses of Section 4.04(a);
(2) additionally, all or any portion of any item of Debt may later be reclassified as having been incurred pursuant to any type of Debt described in Section 4.04(a) so long as such Debt is permitted to be incurred pursuant to such provision and any related Liens are permitted to be incurred at the time of reclassification;
(3) all Debt outstanding on the Issue Date under the Notes shall be deemed incurred on the Issue Date under Section 4.04(a)(2)(x) and may not, in whole or in part, be subsequently reclassified;
(4) in the case of any Refinancing of any Debt, when measuring the outstanding amount of such renewal Debt, such amount shall not include the aggregate amount of accrued and unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including original issue discount, upfront fees or refinancing no Default similar fees) in connection with such Refinancing;
(5) guarantees of, or Event obligations in respect of Default has occurred letters of credit, bankers’ acceptances or other similar instruments relating to, or Liens securing, Debt that is otherwise included in the determination of a particular amount of Debt shall not be included;
(6) if obligations in respect of letters of credit, bankers’ acceptances or other similar instruments are incurred pursuant to any Credit Facility and is continuing are being treated as incurred pursuant to any clause of this paragraph and the letters of credit, bankers’ acceptances or would result from the renewal other similar instruments relate to other Debt, then such other Debt shall not be included;
(7) Debt permitted by this Section 4.04 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or refinancing more other provisions of this Section 4.04 permitting such Debt;
(c) 8) for all purposes under this Indenture, including in connection with the incurrence, issuance or assumption of any Debt pursuant to Section 4.04(a) or the incurrence or creation of Borrowers any Lien pursuant to the definition of “Permitted Liens,” the Issuer may elect, at its option, to treat all or any Subsidiary portion of the committed amount of any Debt (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) which is to be incurred (or any commitment in respect thereof) or secured by such Lien, as the case may be, as being incurred as of such election date or as of the date of the receipt of any Rating Agency Confirmation, as applicable, and, if such provision of this Indenture, as applicable, is complied with (or satisfied) with respect thereto on such election date or on the date of such Rating Agency Confirmation, any subsequent borrowing or reborrowing thereunder (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) will be deemed to finance be permitted under this Section 4.04 or the acquisition definition of fixed or capital assets“Permitted Liens,” as applicable, whether pursuant to a loan or a Capitalized Lease provided that both not such provision of this Indenture, as applicable, at the actual time of and immediately after giving effect any subsequent borrowing or reborrowing (or issuance or creation of letters of credit or bankers’ acceptances thereunder) is complied with (or satisfied) for all purposes (including as to the incurrence thereof (i) no absence of any continuing Default or Event of Default shall have occurred and be continuingDefault); and
(9) notwithstanding anything in this Section 4.04 to the contrary, and (ii) in the aggregate amount case of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.incurr
Appears in 1 contract
Sources: Indenture (Hut 8 Corp.)
Limitation on Debt. CreateThe Borrowers shall not:
(a) permit any Significant Subsidiary to create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) Debt owing by any Significant Subsidiary to the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), Borrowers; and
(ii) so long as the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise Borrowers would be in compliance with this AgreementSections 5.08 and 5.09 hereof (calculated as of the date of, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to to, the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
), Guarantees of the 2004 Senior Notes and the Bond Purchase and Loan Agreement (d) collectively, the “Notes and BPLA Guarantees”), and additional Guarantees of Debt under any Hedging Transactionsof the US Borrower on terms and conditions no more restrictive on the Borrowers and their Subsidiaries taken as a whole than the terms and conditions of the Notes and PBLA Guarantees, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only in each case solely to the extent permitted under Section 8.7 hereof;
(g) such Guarantees shall be unsecured and either junior in right of payment to the Comerica Debt Loans and other obligations hereunder or pari passu to the Subordinated Debt;
(h) Debt arising under the Surety AgreementsLoans and other obligations hereunder, provided that the Borrowers shall promptly terminate provide the Liberty Mutual Indemnity Agreement Administrative Agent with a copy of any documentation evidencing such Guarantees and any modification to such Guarantees; or
(b) create, incur, assume, permit or suffer to exist any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);Debt, except:
(i) Debt of any Borrower or any Subsidiary (other than a Significant Subsidiary) owing to any Borrower or any Subsidiary;
(ii) other Debt of any Borrower or Subsidiaries (other than Significant Subsidiaries), so long as Priority Debt at no time exceeds twenty percent (20%) of Consolidated Total Tangible Assets; provided that (x) so long as the Borrowers would be in compliance with Sections 5.08 and 5.09 hereof (calculated as of the date of, and after giving effect to, the incurrence of such Debt), Material Subsidiaries may enter into Notes and BPLA Guarantees, and additional Guarantees of Debt of the US Borrower on terms and conditions no more restrictive on the Borrowers and their Subsidiaries taken as a whole than the terms and conditions of the Notes and BPLA Guarantees, in each case solely to the extent such Guarantees shall be unsecured Debt not otherwise described aboveand either junior in right of payment to the Loans and other obligations hereunder or pari passu to the Loans and other obligations hereunder, provided that both at the time Borrowers shall promptly provide the Administrative Agent with a copy of any documentation evidencing such Guarantees and immediately after giving effect any modification to such Guarantees and (y) except as provided in clause (x), the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and basket in this subclause (ii) shall not be used to provide credit enhancements (in any form, including Liens and Guarantees) to the purchasers under the 2004 Note Purchase Agreement or any other private placement issuance of Debt or to the purchasers under the Bond Purchase and Loan Agreement; and
(iii) Receivables Transaction Attributed Debt and/or Debt incurred pursuant to Qualified Receivables Transactions in an aggregate amount of all such Debt shall not to exceed $1,000,000 30,000,000 at any one time outstandingtime.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt The Company shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Datenot, and shall otherwise be in compliance with this Agreementnot permit any Restricted Subsidiary to, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) Incur any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets(including Acquired Debt) unless, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof application of the proceeds thereof, either:
(i1) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any is Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, Company or a Restricted Subsidiary and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the application of the proceeds thereof, the Consolidated Interest Coverage Ratio would be greater than 2.0 to 1.0; or
(i2) no Default or Event of Default shall have occurred and be continuing or result therefrom and such Debt is Permitted Debt.
(iib) Notwithstanding anything to the aggregate contrary contained in this Section 1008, any increase in the amount of all Debt solely by reason of currency fluctuation shall not be considered an Incurrence of Debt for purposes of this Section 1008. For purposes of determining compliance with this Section 1008, the U.S. dollar-equivalent principal amount of Debt denominated in any currency other than U.S. dollars shall be calculated based on the relevant currency exchange rate in effect as of the date such Debt is Incurred; provided that the amount of any Permitted Refinancing Debt denominated in the same currency as the Debt being Refinanced thereby shall be calculated based on the relevant exchange rate in effect as of the date of the Incurrence of the Debt being so Refinanced.
(c) The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt with the same terms, the accumulation of dividends on Disqualified Stock or Preferred Stock of Restricted Subsidiaries (to the extent not paid) and the payment of dividends on Disqualified Stock or Preferred Stock of Restricted Subsidiaries in the form of additional shares of the same class of Disqualified Stock or Preferred Stock of Restricted Subsidiaries will not be deemed to be an Indenture 91 Incurrence of Debt or an issuance of Disqualified Stock for purposes of this Section 1008; provided that, in each case, the amount thereof shall be included in Consolidated Interest Expense of the Company as accrued.
(d) For purposes of determining compliance with this Section 1008, in the event that an item of Debt meets the criteria of more than one of the categories of Permitted Debt described in clauses (a) through (m) of the definition of Permitted Debt or is entitled to be incurred pursuant to clause (a)(1) of this Section 1008, the Company shall, in its sole discretion, classify or reclassify such item of Debt (or any part thereof), in any manner that complies with this Section 1008, and such item of Debt will be treated as having been Incurred pursuant to one or more of such categories of Permitted Debt or pursuant to clause (a)(1) of this Section 1008. For purposes of determining any particular amount of Debt under this Section 1008, Guarantees, Liens or obligations, in each case, in support of letters of credit supporting Debt shall not exceed $1,000,000 at any one time outstandingbe included to the extent such letters of credit are included in the amount of Debt.
Appears in 1 contract
Sources: Indenture (Sanmina-Sci Corp)
Limitation on Debt. Create(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer to exist in any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals manner become directly or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect indirectly liable with respect to such or otherwise become responsible for, contingently or otherwise, the payment of (individually and collectively, to “Incur” or, as appropriate, an “Incurrence”), any Debt on (including any Acquired Debt); provided that the Effective Date, Issuer and any Restricted Subsidiary shall otherwise be in compliance with this Agreement, and permitted to incur Debt (iiiincluding Acquired Debt) if at the time of such renewal or refinancing no Default or Event of Default has occurred Incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Leverage Ratio would be less than 4.0 to 1.0.
(b) This covenant shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default the Incurrence by the Issuer or Event any Restricted Subsidiary in reliance on this clause (i) of Default shall have occurred and be continuing, and (ii) the Debt under Credit Facilities in an aggregate principal amount of all such Debt at any one time outstanding not to exceed $425.0 million minus, in either case, the amount of any permanent repayments or prepayments of such Debt with the proceeds of Asset Sales made in accordance with Section 4.09 (but only to the extent of any corresponding commitment reduction if such Debt is revolving credit borrowings);
(ii) the Incurrence by the Issuer of Debt pursuant to the Notes (other than Additional Notes) and the Incurrence of Debt by the Guarantors pursuant to the Guarantees;
(iii) any Debt of the Issuer or any Restricted Subsidiary (other than Debt described in another clause of this paragraph) outstanding on the date of this Indenture;
(iv) the Incurrence by the Issuer or any Restricted Subsidiary of intercompany Debt between the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that
(A) if the Issuer or a Guarantor is the obligor on any such Debt, unless required by a Credit Facility, it is unsecured; and
(B) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing to the Issuer or another Wholly Owned Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Issuer’s Debt or Debt of any Restricted Subsidiary by the Issuer or any Restricted Subsidiary that are permitted by and made in accordance with the provisions of Section 4.15;
(vi) the Incurrence by the Issuer or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of any property or asset, tangible or intangible, including network assets (including switches, towers, software, rights-of-way, intellectual property, licenses, concessions, spectrum and other intangibles and facilities to house network assets) used in the Issuer’s or any Restricted Subsidiary’s business and the capital stock or similar ownership interest of any Person engaged in substantially the same line of business as the Issuer and its Restricted Subsidiaries or reasonably related or ancillary thereto (including the cost of design, development, acquisition, construction (including capitalized interest), installation, improvement, transportation, integration and prepaid maintenance and all reasonable related fees or expenses); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (vi) (and Permitted Refinancing Debt with respect thereto) and still outstanding shall not in the aggregate exceed $100.0 million; and provided further that the total principal amount of any Debt Incurred under this clause (vi) did not in each case at the time of Incurrence exceed (A) the Fair Market Value of the acquired or constructed asset or improvement so financed or (B) in the case of an uncompleted asset under construction, the amount of the asset to be constructed, as determined on the date the contract for construction of such asset was entered into by the Issuer or the relevant Restricted Subsidiary (plus, in each case, the cost of design, development, acquisition, construction (including capitalized interest), installation, improvement, transportation, integration and prepaid maintenance and all reasonable related fees and expenses Incurred in connection with such acquisition, construction or development);
(vii) the Incurrence by the Issuer or any Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Issuer or any Restricted Subsidiary of Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and Incurred by any renewals Person acquiring all or refinancings any portion of such Debt on terms substantially assets for the same or better than those in effect at the time purpose of the original incurrence of financing such Debtacquisition;
(dviii) the Incurrence by the Issuer or any Restricted Subsidiary of Debt under any Hedging Transactions, provided that such transaction is Currency Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(ix) the Incurrence by the Issuer or any Restricted Subsidiary of Debt under Interest Rate Agreements entered into in the ordinary course of business and not for speculative purposes;
(x) the Incurrence of Debt by the Issuer or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(xi) the Incurrence of Debt by the Issuer or any Restricted Subsidiary arising from (A) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within 5 Business Days of Incurrence, (B) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations, (C) completion guarantees provided or letters of credit obtained by the Issuer or any Restricted Subsidiary in the ordinary course of business; and (D) the financing of insurance premiums in the ordinary course of business;
(xii) the Incurrence by a Person of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in, paragraphs (a), (b)(ii), (b)(iii) and (b)(iv) of this Section 4.06, as the case may be; and
(xiii) the incurrence of Debt by the Issuer or any Restricted Subsidiary in an aggregate amount at any time outstanding not to exceed the greater of (i) $100.0 million and (ii) 5% of Total Assets.
(c) Notwithstanding any other provision of this Section 4.06, for purposes of determining compliance with this Section 4.06, increases in Debt solely due to fluctuations in the exchange rates of currencies will not be deemed to exceed the maximum amount that the Issuer or a Guarantor may Incur under this Section 4.06.
(d) For purposes of determining any particular amount of Debt under this Section 4.06:
(i) obligations with respect to letters of credit, guarantees or Liens, in each case supporting Debt otherwise included in the determination of such particular amount shall not be included;
(ii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.07 will not be treated as Debt; and
(iii) accrual of interest, accrual of dividends, the accretion of accreted value, the obligation to pay commitment fees and the payment of interest in the form of additional Debt will not be treated as Debt.
(e) In the event that an item of Debt arising from judgments meets the criteria of more than one of the types of Debt described in this Section 4.06, the Issuer, in its sole discretion, shall classify items of Debt and shall only be required to include the amount and type of such Debt in one of such clauses and the Issuer shall be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 4.06, and may change the classification of an item of Debt (or decrees not deemed any portion thereof) to be a Default or Event any other type of Default under subsection (g) of Debt described in this Section 9.1;4.06 at any time.
(f) The Guarantors will not Incur, create, issue, assume, guarantee or otherwise become liable for any Debt owing to a Person that is a Credit Party, but only subordinate or junior in right of payment to any Senior Debt of the Guarantors and senior in any respect in right of payment to the extent permitted under Section 8.7 hereof;Guarantees or any other Pari Passu Debt of the Guarantors, provided that the foregoing limitation will not apply to distinctions between categories of Senior Debt that exist by reason of any Liens or guarantees arising or created in respect of some but not all of such Senior Debt.
(g) the Comerica Debt The Issuer will not, and the Subordinated Debt;
(h) Debt arising under the Surety Agreementswill not permit any Restricted Subsidiary to, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
Incur (i) additional unsecured Debt secured by a Lien on any assets of the Issuer, (ii) Senior Debt of a Guarantor or (iii) Debt of a Restricted Subsidiary that is not otherwise described abovea Guarantor, provided that both other than, in each case, Permitted Debt (other than Permitted Debt Incurred under clause (b)(i) of Section 4.06), if, at the time of such Incurrence and immediately after giving effect to the incurrence thereof (i) no Default or Event Incurrence of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingand the application of the proceeds thereof, on a pro forma basis, the Priority Debt Leverage Ratio would be greater than 3.00 to 1.0.
Appears in 1 contract
Sources: Indenture (Digicel Group LTD)
Limitation on Debt. Create, incur, assume or suffer to exist (a) The Company shall not Incur any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)including Acquisition Debt, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately unless after giving effect to the incurrence thereof Incurrence of such Debt and the receipt and application of the proceeds therefrom, the Fixed Charge Ratio of the Company would be greater than 2 to 1. The Company's obligation to comply with this covenant will terminate if and when the Notes become Investment Grade.
(b) Notwithstanding the foregoing, the Company may Incur each and all of the following:
(i) no Default Debt under or Event in respect of Default shall have occurred and be continuing, and (ii) the Bank Credit Agreement in an aggregate principal amount of all such Debt at any one time outstanding not to exceed $600 million;
(includingii) Debt issued in exchange for, without limitationor the proceeds of which are used to refinance, any outstanding Securities or other Debt of the type described Company in an amount (or, if such new Debt provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration thereof, with an original issue price) not to exceed the amount so exchanged or refinanced (plus accrued interest, premium, if any, and fees and expenses related to such exchange or refinancing); provided that (A) the date of any scheduled payment of principal by way of sinking fund, mandatory redemption or otherwise (including defeasance) on any Debt so refinanced or exchanged otherwise due after the final scheduled Maturity Date of the Securities shall not occur prior to such Maturity Date as a result of such exchange or refinancing and (B) new Debt the proceeds of which are used to exchange or refinance the Securities or other Debt of the Company that is subordinated in right of payment to the Securities shall only be permitted under this clause (cii) if (x) in case the Securities are exchanged or refinanced in part, such new Debt, by its terms or by the terms of any agreement or instrument pursuant to which such Debt is set forth on Schedule 8.1 hereofissued, is expressly made pari passu with, or subordinate in right of payment to, the remaining Securities, (y) in case the Debt to be exchanged or refinanced is subordinated in right of payment to the Securities, such new Debt, by its terms or by the terms of any agreement or instrument pursuant to which such Debt is issued, is expressly made subordinate in right of payment to the Securities, at least to the extent that the Debt to be exchanged or refinanced is subordinated in right of payment to the Securities and (z) in case the Securities are exchanged or refinanced in part or the Debt to be exchanged or refinanced is subordinated in right of payment to the Securities, as of the date the new Debt is Incurred, the Average Life of the new Debt shall not exceed $5,000,000be equal to or greater than the Average Life of the Securities or Debt to be exchanged or refinanced;
(iii) Debt of the Company to any of its Consolidated Subsidiaries, and except that any renewals or refinancings transfer of such Debt on terms substantially the same or better by a Consolidated Subsidiary (other than those in effect at the time to another Consolidated Subsidiary) will be deemed to be an Incurrence of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, ; provided that such transaction Debt is entered into for risk management purposes and not for speculative purposes;expressly subordinated in right of payment to the Securities; and
(eiv) Debt arising from judgments or decrees in an aggregate principal amount not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 50 million at any one time outstanding.
(c) For purposes of determining any particular amount of Debt under this Section 4.8, Guarantees of, or obligations with respect to letters of credit supporting, Debt oth- erwise included in the determination of such particular amount shall not be included. For purposes of determining compliance with this Section 4.8, (A) in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above clauses, the Company, in its sole discretion, shall classify such item of Debt and only be required to include the amount and type of such Debt in one of such clauses and (B) the amount of Debt issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in conformity with GAAP.
Appears in 1 contract
Sources: Indenture (Aes Corporation)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to the Agent and the Lenders under this Agreement and/or the other Loan Documents;
or any Lender; (b) any Debt existing on the Effective Restatement Date and set forth in Schedule 8.1 7.1 attached hereto and any renewals or refinancing of such Permitted Refinancing Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
; (c) any Debt of Borrowers the Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, or any Permitted Refinancing Debt thereof, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) other than in the case of a refinancing, such Debt is incurred within 180 days of the acquisition thereof and (iii) the aggregate principal amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof7.1 hereto) shall not exceed $5,000,000, and any renewals or refinancings 10,000,000; (d) the Debt of the Credit Parties under the Senior Loan Documents in the aggregate principal amount not to exceed $30,000,000 so long as such Debt on terms substantially the same or better than those in effect at the time and all other obligations of the original incurrence of such Credit Parties in connection therewith are subject to the Specified Subordination Agreement; (e) Subordinated Debt;
; (df) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
; (eg) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection Section 8.1(g); (g) of Section 9.1;
(fh) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g7.6(d) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(ior 7.6(m);
; (i) Debt incurred in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards (including so-called “procurement cards” or “P-cards”) or other similar cash management services, in each case, incurred in the ordinary course of business; (j) reimbursement obligations with respect to Cash Secured L/Cs; provided, that the aggregate face amount of all Cash Secured L/Cs shall not exceed $15,000,000 at any time; and (k) additional unsecured Debt not otherwise described abovepermitted under this Section 7.1, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 7,500,000 at any one time outstanding.. 71
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness Debt of any Credit Party to Administrative Agent and the Lenders under this Agreement and/or the other Loan Documentsany Secured Party constituting Indebtedness;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any refinancing, refundings and renewals or refinancing of such Debt thereof (provided that (i) without increasing the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancingthereof), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred Credit Party to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a including Capitalized Lease Leases, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof8.1) shall not exceed $5,000,000, 5,000,000 and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under pursuant to any permitted Commodity Hedging TransactionsAgreements and Interest Rate Agreements, provided that (i) each such transaction is entered into for risk management purposes and not for speculative purposes, and (ii) any such Commodity Hedging Agreement is entered into in accordance with the terms of Section 8.11;
(e) Debt arising from judgments or decrees that do not deemed to be constitute a Default or Event of Default under subsection (g) of Section 9.19.1(h);
(f) Debt owing of Borrower or any Restricted Subsidiary to a Person that is a Credit PartyParent, but only to the extent permitted under Section 8.7 hereofand intercompany Debt among Borrower and its Subsidiaries;
(g) obligations to royalty, overriding and working interest owners, joint interest obligations, trade payables and other lease operating expenses incurred in the Comerica Debt ordinary course of business which are not more than one hundred twenty (120) days past due or which are being contested in good faith by appropriate action and the Subordinated Debtfor which adequate reserves have been maintained in accordance with GAAP;
(h) Debt arising under the Surety Agreements, associated with bonds or sureties provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and to any Governmental Authority or to any other Bond Documents related thereto following Person in connection with the completion operation of the construction projects set forth on Schedule 8.1(i)Oil and Gas Properties;
(i) Debt under Advance Payment Contracts permitted by Section 8.10;
(j) Debt in connection with the endorsement of negotiable instruments, cash management and other similar obligations in respect of netting services, overdraft protection and similar arrangements, in each case in the ordinary course of business;
(k) Debt associated with or in respect of workers’ compensation claims, performance, bid, release, appeal and surety bonds and performance and completion guarantees and similar obligations provided by the Borrower or any of the Restricted Subsidiaries, in each case in the ordinary course of business;
(l) Debt consisting of the financing of insurance premiums;
(m) Debt in respect of self-insurance obligations to the extent incurred in the ordinary course of business in accordance with customary industry practices in amounts customary in the Borrower’s and its Restricted Subsidiaries’ industry;
(n) to the extent constituting Debt, indemnification, deferred purchase price adjustments, earn-outs or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets or any Investment permitted to be acquired or made hereunder or any Disposition permitted hereunder;
(o) Debt representing deferred compensation or similar obligations to employees of Parent and its Subsidiaries incurred in the ordinary course of business;
(p) Debt incurred in the ordinary course of business with respect to customer deposits and other unsecured current liabilities not the result of borrowing and not evidenced by any note or other evidence of Debt;
(q) guarantee obligations in respect of (i) Debt otherwise permitted pursuant to this Section 8.1, and (ii) Investments permitted by Section 8.6(e); and
(r) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt outstanding at any time shall not exceed $1,000,000 at any one time outstanding10% of the amount of the Borrowing Base then in effect.
Appears in 1 contract
Limitation on Debt. Create(a) The Company shall not, incurand shall not permit any Restricted Subsidiary to, assume or suffer Incur any Debt (including Acquired Debt) unless, after giving effect to exist any Debtthe application of the proceeds thereof, excepteither:
(a1) Indebtedness such Debt is Debt of any Credit Party the Company or a Restricted Subsidiary and after giving effect to Agent the Incurrence of such Debt and the Lenders under this Agreement and/or application of the other Loan Documents;proceeds thereof, the Consolidated Interest Coverage Ratio would be greater than 2.0 to 1.0; or
(2) such Debt is Permitted Debt.
(b) Notwithstanding anything to the contrary contained in this Section 1008, any increase in the amount of Debt existing on solely by reason of currency fluctuation shall not be considered an Incurrence of Debt for purposes of this Section 1008. For purposes of determining compliance with this Section 1008, the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate U.S. dollar-equivalent principal amount of such renewed or refinanced Debt denominated in any currency other than U.S. dollars shall not exceed be calculated based on the aggregate principal amount relevant currency exchange rate in effect as of the original date such Debt outstanding on the Effective Date (less any principal payments and is Incurred; provided that the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) Permitted Refinancing Debt denominated in the renewal or refinancing of such same currency as the Debt being Refinanced thereby shall be calculated based on substantially the same or better terms as relevant exchange rate in effect with respect to such as of the date of the Incurrence of the Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debtbeing so Refinanced;
(c) The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Debt in the form of Borrowers additional Debt with the same terms, the accumulation of dividends on Disqualified Stock or any Subsidiary incurred to finance the acquisition Preferred Stock of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect Restricted Subsidiaries (to the incurrence thereof (iextent not paid) no Default and the payment of dividends on Disqualified Stock or Event Preferred Stock of Default shall have occurred and be continuing, and (ii) Restricted Subsidiaries in the aggregate amount form of all such Debt at any one time outstanding (including, without limitation, any Debt additional shares of the type described same class of Disqualified Stock or Preferred Stock of Restricted Subsidiaries will not be deemed to be an Incurrence of Debt or an issuance of Disqualified Stock for purposes of this Section 1008; provided that, in this clause (c) which is set forth on Schedule 8.1 hereof) each case, the amount thereof shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those be included in effect at the time Consolidated Interest Expense of the original incurrence of such Debt;Company as accrued; and
(d) For purposes of determining compliance with this Section 1008, in the event that an item of Debt meets the criteria of more than one of the categories of Permitted Debt described in clauses (a) through (m) of the definition of Permitted Debt or is entitled to be incurred pursuant to clause (a)(1) of this Section 1008, the Company shall, in its sole discretion, classify or reclassify such item of Debt (or any part thereof), in any manner that complies with this Section 1008, and such item of Debt will be treated as having been Incurred pursuant to one or more of such categories of Permitted Debt or pursuant to clause (a)(1) of this Section 1008. For purposes of determining any particular amount of Debt under any Hedging Transactionsthis Section 1008, provided that such transaction is entered into for risk management purposes and Guarantees, Liens or obligations, in each case, in support of letters of credit supporting Debt shall not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only included to the extent permitted under Section 8.7 hereof;
(g) such letters of credit are included in the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingDebt.
Appears in 1 contract
Sources: Indenture (Sanmina-Sci Corp)
Limitation on Debt. Create, incur, assume or suffer to exist Neither Borrower nor any Guarantor shall incur any Debt, except:
except for (a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
Obligations, (b) any trade payables incurred in the ordinary course of business, (c) the Debt existing described on the Effective Date and set forth Schedule III hereto, (d) Debt in Schedule 8.1 attached hereto and any renewals or refinancing respect of such Debt (provided that (i) the aggregate principal amount of such renewed taxes, assessments, governmental charges or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments levies and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)claims for labor, materials and supplies, (ii) judgments or awards which have been in force for less than the renewal applicable appeal period so long as execution is not levied thereunder or refinancing in respect of which Borrower or Guarantor 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 Debt shall be on substantially the same appeal or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreementreview, and (iii) endorsements made in connection with the deposits of items for credit or collection in the ordinary course of business, (e) capitalized lease obligations related to capital expenditures made by Borrower as permitted by Section 7.19 hereof (and so long as such capitalized lease obligations do not cause Borrower to be in violation of any other covenant of this Agreement), (f) Subordinate Acquisition Debt, (g) Permitted Institutional Debt, provided that, (1) the amount of the Permitted Senior Institutional Debt outstanding at any time cannot exceed the lesser of 70% of the aggregate amount of Permitted Institutional Debt outstanding at the time of such renewal determination or refinancing no Default $17,500,000.00, (2) the amount of Permitted Subordinate Institutional Debt outstanding at any time cannot be less than $7,500,000.00, and (3) the issuance of said Permitted Institutional Debt would otherwise be permitted by the other terms and conditions of the Credit Facility, (h) the Short Term Debt in existence on the date of the execution of this Agreement (Lenders hereby agreeing that (1) Administrative Agent shall be entitled to execute on behalf of Lenders any documents or Event agreements approved by Administrative Agent acknowledging that the Short Term Debt is included in the Obligations and secured by the Collateral, subject, however, to the provisions of Default has occurred Section 9.6 hereof and is continuing or would result from the renewal or refinancing of such Debt;
(c2) any Debt of Borrowers all or any Subsidiary incurred portion of the proceeds of the Permitted Institutional Debt shall be used to finance repay the acquisition of fixed or capital assetsShort Term Debt and then to pay down the Credit Facility), whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default refinancings, renewals or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt extensions of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially permitted under the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, foregoing clauses provided that such transaction is entered into for risk management purposes and refinancings, renewals or extensions do not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to result in an increase in the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion aggregate unpaid principal amount of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described aboveso refinanced, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default renewed or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingextended.
Appears in 1 contract
Sources: Loan Agreement (Monarch Dental Corp)
Limitation on Debt. CreateThe Borrower shall not, and shall not permit any Subsidiary of the Borrower to, incur, assume assume, create or suffer to exist any Debt, exceptexcept for:
(a) Indebtedness in the case of any Credit Party to Agent and the Lenders Borrower:
(i) Debt under this Agreement and/or the other Loan Financing Documents;
(bii) any Debt existing on the Amendment and Restatement Effective Date Date;
(iii) Debt representing a refinancing, replacement or refunding of Debt permitted by Section 5.07(a)(i), (ii), (iii), (vii) and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (ix); provided that that:
(iA) (x) the aggregate principal amount of such renewed Debt outstanding or refinanced Debt shall available will not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) available at the time of such renewal refinancing, replacement or refinancing no Default refunding (plus fees and expenses, including any premium and defeasance costs relating to such refinancing, replacement or Event of Default has occurred and is continuing or would result from refunding), (y) the renewal or refinancing final maturity of such DebtDebt is later than the Revolving Credit Loan Termination Date (other than Debt that can be settled in the Borrower’s Capital Stock (other than Redeemable Stock); provided that such Debt may only be settled in cash prior to the Revolving Credit Loan Termination Date up to an aggregate principal amount not to exceed $400,000,000 and not before July 29, 2006; provided further that the Debt being refinanced, replaced or refunded has a final maturity date on or prior to the Revolving Credit Loan Termination Date) (z) (1) such Debt shall not contain any Payment Restriction more restrictive than the Payment Restrictions contained in the Debt being refinanced, replaced or refunded or (2) in the opinion of the Borrower, such Payment Restrictions are consistent with customary market terms for a financing of its nature and do not adversely affect the ability of the Borrower to meet its payment Obligations under the Financing Documents; and
(B) no obligor shall be liable for any such Debt except to the extent that it was liable for the Debt so refinanced, replaced or refunded, unless such liability in respect of such Debt would otherwise be permitted by Section 5.07(b);
(civ) Debt owing by the Borrower to a Consolidated Subsidiary of the Borrower so long as such Debt is subordinated on terms reasonably satisfactory to the Agent to the Debt of the Borrower under the Financing Documents;
(v) any Lien permitted by Section 5.10 that constitutes Debt not otherwise permitted by this Section;
(vi) Letters of Borrowers or any Subsidiary incurred credit, surety bonds, Guarantees and performance bonds supporting obligations of Subsidiaries so long as, after giving effect to finance such letters of credit, surety bonds, Guarantees and performance bonds (and the acquisition of fixed or capital assetsInvestments represented thereby), whether pursuant to a loan or a Capitalized Lease provided that both at the time of Borrower would be in compliance with Section 5.16;
(vii) other Debt so long as (x) immediately before and immediately after giving effect to the incurrence and application of the proceeds thereof (i) no Default or Event of Default shall have occurred and be continuing, and (iiy) the aggregate amount of all if such Debt at any one time outstanding (includingis secured by a Lien on the Creditor Group Collateral on a first-lien basis, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings final scheduled maturity of such Debt shall in no event be on terms substantially or prior to the same Revolving Credit Loan Termination Date and (z) if such Debt is secured by a Lien on the Creditor Group Collateral on a first-lien basis, such Debt shall not have any scheduled amortization on or better than those prior to the Revolving Credit Loan Termination Date in effect at the time an aggregate amount in excess of 10% of the original incurrence initial amount of such Debt;
(dviii) Debt under incurred as a bridge financing for a proposed sale, transfer or other disposition of assets pursuant to Section 5.18(iv) with respect to assets acquired after June 23, 2005; provided that (w) the only direct or contingent obligor in respect of such Debt is the holder of the assets that are the subject of such sale, transfer or other disposition, (x) the interest rate applicable to such Debt does not exceed the then applicable market interest rate, (y) such Debt is repaid with the proceeds of such sale, transfer or other disposition upon consummation thereof and (z) such Debt was incurred in connection with the acquisition by the Borrower of the assets that are the subject of such sale, transfer or other disposition;
(ix) Debt incurred to refinance, replace or refund any Hedging Transactionsof the obligations arising in respect of the Existing Trust Preferred Securities, provided that (x) the only direct or contingent obligor in respect of such transaction Debt is entered into for risk management purposes the Borrower and not for speculative purposes;(y) the final scheduled maturity of such Debt shall be later than the Revolving Credit Loan Termination Date; and
(ex) Debt arising from judgments or decrees in an aggregate principal amount not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Partyexceed $500,000,000 at any one time outstanding, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt so long as immediately before and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence and application of the proceeds thereof (i) no Default or Event of Default shall have occurred and be continuing continuing; and
(b) in the case of the Borrower’s Subsidiaries:
(i) Guarantees of Debt of the Borrower under the Financing Documents, the Senior Secured Exchange Notes and Debt permitted by clause (a)(iii) or result therefrom (a)(vii) above, the proceeds of which are applied to permanently reduce Total Bank Exposure or prepay the Senior Secured Exchange Notes (it being understood that if, after the Effective Date, any Subsidiary Guarantees the Debt of the Borrower under the Financing Documents, such Subsidiary may also Guarantee the Senior Secured Exchange Notes and the Debt permitted by clause (a)(iii) or (a)(vii) above, the proceeds of which are applied to permanently reduce Total Bank Exposure or prepay the Senior Secured Exchange Notes);
(ii) Debt incurred by a Subsidiary:
(1) to finance the aggregate amount acquisition, development, construction, operation, maintenance (including modifications and upgrades to comply with applicable laws and regulations) or working capital requirements (including letters of all credit or guarantees to fund debt service reserve accounts or similar accounts or for the benefit of power purchase agreements or commodity hedging counterparties) of a Power Supply Business or other business owned, operated or managed (including on a joint basis with others), directly or indirectly, by the Borrower (an “AES Business”) or (2) to finance the acquisition of “greenfields” and the construction, operation, maintenance or working capital requirements (including modifications and upgrades to comply with applicable laws and regulations) or working capital requirements (including letters of credit or guarantees to fund debt service reserve accounts or similar accounts or for the benefit of power purchase agreements or commodity hedging counterparties) necessary to develop and construct such Debt shall not exceed $1,000,000 at any one time outstanding.“greenfields” and to operate them as an AES Business or (3) that constitutes Acquired Debt; and
Appears in 1 contract
Limitation on Debt. Create(a) The Borrower shall not, incurand shall not permit any Restricted Subsidiary to, assume incur or suffer be liable with respect to exist (i) any Debt of a type described in clause (i), (ii), (iii) or (iv) of the definition of "Debt" in Section 1.01 or (ii) any Guarantee of any such Debt described in clause (i) above, except:
(ai) Indebtedness Debt outstanding under the Financing Documents; 102
(ii) Debt under or in respect of the Senior Secured Credit Agreement in an aggregate principal amount not to exceed $300,000,000 less any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documentsamount of such Debt repaid;
(biii) Debt outstanding on the Closing Date, including the Government Settlement and any other obligations arising under the Plan of Reorganization;
(iv) Capital Lease Obligations; provided that the aggregate outstanding principal amount of Debt permitted by this clause (iv) and by clause (v) shall not at any time exceed $25,000,000;
(v) Debt incurred or assumed after the Closing Date for the purpose of financing all or any part of the cost of acquiring or constructing an asset of the Borrower or a Restricted Subsidiary; provided that (A) such Debt is secured by a Lien on such asset that is permitted by Section 7.02(g) and (B) the aggregate outstanding principal amount of all Debt permitted by clause (iv) and this clause (v) shall not at any time exceed $25,000,000;
(vi) Debt of any Person that becomes a Restricted Subsidiary after the Closing Date in connection with an Acquisition; provided that such Debt was outstanding before such Person became a Restricted Subsidiary and was not incurred in contemplation thereof;
(vii) Debt incurred after the Closing Date and Guarantees of Debt entered into after the Closing Date; provided that (A) the Debt so incurred or Guaranteed is incurred in exchange for or to repay, prepay, repurchase, redeem, defease, retire or refinance ("refinance") any outstanding Debt existing on of the Effective Date Borrower or any Restricted Subsidiary otherwise permitted by this Section and (B) the principal amount of the Debt so incurred or Guaranteed shall not exceed the unpaid principal amount of the Debt so exchanged or refinanced; provided further that a refinancing of the Senior Secured Credit Agreement shall be permitted only if, in addition to the limitations set forth in Schedule 8.1 attached hereto and any renewals the foregoing proviso, (w) no principal amount of the Debt incurred or to be incurred pursuant to such refinancing (the "Refinancing Debt") shall be required to be repaid before the stated maturity of the Debt under the Senior Secured Credit Agreement immediately prior to such refinancing (other than in connection with a mandatory prepayment of such Debt on terms similar to those under the Senior Secured Credit Agreement immediately prior to such refinancing), (provided that (ix) the aggregate principal amount of such renewed or refinanced interest payable on, and the fees payable in connection with, the Refinancing Debt shall not exceed the aggregate principal amount of interest and fees payable pursuant to the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or Senior Secured Credit Agreement immediately prior to such renewal or 103 refinancing), (iiy) no restriction is imposed on the Borrower or any Guarantor in connection with the Refinancing Debt that is more restrictive in any material respect than the provisions in the Senior Secured Credit Agreement and the related security agreements and guarantees immediately prior to such refinancing and (z) the renewal or refinancing of such Refinancing Debt shall be is subordinated to this Agreement on substantially terms that are no less advantageous the same or better Lenders than the terms as in effect with respect on which the Senior Secured Credit Agreement is subordinated to this Agreement immediately prior to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and refinancing;
(iiiviii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Permitted Intercompany Debt;
(cix) any Debt consisting of Borrowers (A) trade obligations or (B) accrued current liabilities for services rendered to the Borrower or any Subsidiary incurred to finance Restricted Subsidiary, in each case, arising in the acquisition ordinary course of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at business after the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such DebtClosing Date;
(dx) Debt under Interest Rate Agreements (including Designated Interest Rate Agreements) of the Borrower or any Hedging Transactions, provided that such transaction is Restricted Subsidiary relating to Debt permitted to be incurred and outstanding under this Section and entered into in the ordinary course of business for risk management purposes the purpose of limiting interest rate risks and not for speculative purposes;speculation; and
(exi) Debt owed in respect of any overdrafts and related liabilities arising from judgments treasury, depository and cash management services or decrees not deemed to be a Default or Event in connection with any automated clearing house transfers of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingfunds.
Appears in 1 contract
Limitation on Debt. Create(a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume assume, guarantee or suffer otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, “incur”), any Debt (including any Acquired Debt), unless such Debt is incurred by the Company or any Guarantor and, in each case, the Company’s Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Debt taken as one period is at least equal to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the “Permitted Debt”):
(i) Debt of the Company or any Restricted Subsidiary under the Credit Agreement, any Credit Facility or the U.K. Credit Agreement in an aggregate principal amount at any one time outstanding not to exceed $1,250,000,000 in any case under these agreements or in respect of letters of credit under these agreements;
(ii) Debt of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Debt of the Company pursuant to the Securities or the Exchange Securities and Debt of any Guarantor pursuant to a Guarantee of the Securities or the Exchange Securities;
(iv) Debt of the Company or any Restricted Subsidiary outstanding on the Issue Date and not otherwise referred to in this definition of “Permitted Debt;”
(v) Debt of the Company owing to a Restricted Subsidiary; provided that any Debt existing on of the Effective Date Company owing to a Restricted Subsidiary that is not a Guarantor is unsecured and set forth subordinated in Schedule 8.1 attached hereto right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company’s obligations under the Securities; provided, further, that any renewals disposition, pledge or refinancing transfer of any such Debt to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary or a pledge to a lender under a Credit Facility, provided that such lender has not commenced an enforcement action with respect thereto) shall be deemed to be an incurrence of such Debt by the Company or other obligor not permitted by this clause (v);
(vi) Debt of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any disposition, pledge or transfer of any such Debt to a Person (iother than a disposition, pledge or transfer to the Company or a Restricted Subsidiary or a pledge to a lender under a Credit Facility, provided that such lender has not commenced an enforcement action with respect thereto) the aggregate principal amount shall be deemed to be an incurrence of such renewed Debt by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or refinanced Debt shall any Restricted Subsidiary (a) pursuant to Interest Rate Agreements as long as such obligations do not exceed the aggregate principal amount of such Debt then outstanding, (b) under any Currency Hedging Agreements; provided, however, that such Currency Hedging Agreements do not increase the original Debt or other obligations of the Company or any Restricted Subsidiary outstanding on the Effective Date other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (less c) under any principal payments and Commodity Price Protection Agreements which do not increase the amount of Debt or other obligations of the Company or any commitment reductions made thereon on Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or prior to by reason of fees, indemnities and compensation payable under such renewal or refinancingCommodity Price Protection Agreements, and guarantees by Guarantors in respect thereof; provided that in the case of each of clauses (a), (b) and (c) such agreements are not entered into for speculative purposes;
(ix) Debt of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other Debt incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed the greater of (i) $75,000,000 and (ii) 2% of the renewal or refinancing Company’s Consolidated Total Assets outstanding at any time; provided that the principal amount of such any Debt shall be on substantially the same or better terms as permitted under this clause (ix) did not in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) Debt incurred by the Company or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit, including letters of credit in respect of workers’ compensation claims, or other Debt with respect to reimbursement type obligations regarding workers’ compensation claims; provided that upon the drawing of such renewal letters of credit, such obligations are reimbursed within 30 days following such drawing or incurrence or supported under the Credit Agreement, the U.K. Credit Agreement or any Credit Facility;
(xii) Debt of Foreign Subsidiaries in the aggregate amount outstanding pursuant to this clause (xii) at any time not to exceed (x) $300,000,000 plus (y) 5% of the Consolidated Tangible Assets of the Company, provided that Foreign Subsidiaries may not incur Debt pursuant to this clause (y) unless the Company can incur $1.00 of additional Debt (other than Permitted Debt) under paragraph (a) above after giving effect to such incurrence;
(xiii) guarantees by the Company or a Restricted Subsidiary of Debt of a Restricted Subsidiary that was permitted to be incurred under this Section 1008;
(xiv) any renewals, extensions, substitutions, refundings, refinancings or replacements (collectively, a “refinancing”) of any Debt incurred pursuant to paragraph (a) above or clauses (iii), (iv), and this clause (xiv) of this Section 1008(b), including any successive refinancings so long as the borrower under such refinancing no Default is the Company or, if not the Company, the same as the borrower of the Debt being refinanced and the aggregate principal amount of Debt represented thereby (or Event if such Debt provides for an amount less than the principal amount thereof to be due and payable upon a declaration of Default has occurred acceleration of the maturity of such Debt, the original issue price of such Debt plus any accreted value attributable thereto since the original issuance of such Debt) does not exceed the initial principal amount of such Debt plus the lesser of (I) the stated amount of any premium or other payment required to be paid in connection with such a refinancing pursuant to the terms of the Debt being refinanced or (II) the amount of premium or other payment actually paid at such time to refinance the Debt, plus, in either case, the amount of the expenses of the Company incurred in connection with such refinancing and (A) in the case of any refinancing of Debt that is continuing Subordinated Debt, such new Debt is made subordinated to the Securities at least to the same extent as the Debt being refinanced and (B) in the case of Pari Passu Debt or would result from Subordinated Debt, as the renewal case may be, such refinancing does not reduce the Average Life to Stated Maturity or refinancing the Stated Maturity of such Debt;
(cxv) any Debt of Borrowers the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Debt is extinguished within five Business Days of incurrence;
(xvi) obligations in respect of performance, bid, appeal and surety bonds and completion guarantees and similar obligations provided by the Company or any Restricted Subsidiary incurred to finance in the acquisition ordinary course of fixed business;
(xvii) the incurrence by the Company or capital assetsany of its Restricted Subsidiaries of Acquired Debt; provided, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to such acquisition and the incurrence thereof of such Acquired Debt, either (i) no Default or Event of Default shall have occurred and be continuing, and (iiA) the aggregate amount Company can incur $1.00 of all additional Debt (other than Permitted Debt) under paragraph (a) of this Section 1008, or (B) the Company’s Consolidated Fixed Charge Coverage Ratio would be equal to or greater than immediately prior to such Debt at any one time outstanding acquisition;
(including, without limitation, any xviii) Debt of the type Company to the extent the net proceeds thereof are promptly deposited to defease the Securities as described in this clause (c) which is set forth on Schedule 8.1 Article Four hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(dxix) Debt shares of Preferred Stock of a Restricted Subsidiary issued to the Company or a Restricted Subsidiary of the Company; provided that any subsequent transfer of any such shares of Preferred Stock (except to the Company or a Restricted Subsidiary or a pledge to a lender under any Hedging Transactionsa Credit Facility, provided that such transaction is entered into for risk management purposes and lender has not for speculative purposes;
(ecommenced an enforcement action with respect thereto) Debt arising from judgments or decrees not shall be deemed to be a Default or Event an issuance of Default under subsection Preferred Stock that was not permitted by this clause (g) of Section 9.1;xix); and
(fxx) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
Company and its Restricted Subsidiaries, in addition to that described in clauses (i) additional unsecured Debt not otherwise described through (xix) above, provided that both at the time and any renewals, extensions, substitutions, refinancings or replacements of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) such Debt, so long as the aggregate principal amount of all such Debt shall not exceed $1,000,000 50,000,000 outstanding at any one time outstandingin the aggregate. For purposes of determining compliance with this Section 1008, in the event that an item of Debt meets the criteria of more than one of the types of Debt described in clauses (i) through (xx) above or is entitled to be incurred pursuant to paragraph (a) of this Section 1008, the Company in its sole discretion may classify or reclassify such item of Debt and only be required to include the amount of such Debt as one of such types. Accrual of interest, accretion or amortization of original issue discount and the payment of interest on any Debt in the form of additional Debt with the same terms, and the payment of dividends on any Redeemable Capital Stock or Preferred Stock in the form of additional shares of the same class of Redeemable Capital Stock or Preferred Stock will not be deemed to be an incurrence of Debt for purposes of this Section 1008 provided, in each such case, that the amount thereof as accrued over time is included in the Consolidated Fixed Charge Coverage Ratio of the Company. Debt permitted by this Section 1008 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this Section 1008 permitting such Debt. For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Debt denominated in a foreign currency, the U.S. dollar-equivalent principal amount of such Debt incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Debt was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Debt is incurred to extend, replace, refund, refinance, renew or defease other Debt denominated in a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Debt does not exceed the principal amount of such Debt being extended, replaced, refunded, refinanced, renewed or defeased. Except as provided in the prior paragraph, the principal amount of any Debt incurred to extend, replace, refund, refinance, renew or defease other Debt, if incurred in a different currency from the Debt being extended, replaced, refunded, refinanced, renewed or defeased, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Debt is denominated that is in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance.
Appears in 1 contract
Sources: Indenture (United Auto Group Inc)