Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur or suffer to exist any Indebtedness, except: (a) the Obligations; (b) [intentionally deleted]; (c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto; (d) Derivatives Contracts entered into in respect of the Obligations; (e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion; (f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business; (g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business; (h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed); (i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below; (j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence; (k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and (l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (United Homes Group, Inc.), Credit Agreement (United Homes Group, Inc.)
Permitted Indebtedness. The Borrower shall not, and shall not permit Neither the Company nor any Subsidiary to, ---------------------- will create, incur or suffer to exist assume any Indebtedness, exceptIndebtedness other than:
(a) Indebtedness represented by or incurred under the ObligationsNotes and the Purchase Agreement and the Revolving Credit Facility;
(b) [intentionally deleted]Indebtedness incurred to prepay or repay in full the remaining outstanding principal amount of Notes and all other amounts due thereon or under the Purchase Agreement;
(c) Indebtedness existing on the Agreement Closing Date which Indebtedness is described in Schedule 7.1(g) heretoand identified on the Disclosure Schedule;
(d) Derivatives Contracts entered into in respect Indebtedness incurred solely as an extension, renewal, refinancing or replacement of Indebtedness of the ObligationsCompany or of its Subsidiaries under clause (iii) above (but excluding any Indebtedness under clause (iii) above to the extent such Indebtedness is repaid with the proceeds from the sale of the Notes and Warrants), provided that any such extension, renewal or refinancing (A) shall be on terms which on balance are substantially as favorable to the Company (or the relevant Subsidiary) as the terms of such existing Indebtedness (other than changes in the amount of the interest rate and other than the imposition of additional Liens permitted by Section 9.10(f) hereof) and (B) shall not be in a greater principal amount or have a shorter average life or earlier maturity than such existing Indebtedness;
(e) Indebtedness in an aggregate principal amount outstanding not exceeding $20,000,000 incurred solely to finance the purchase price of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured additional towers and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretionrelated facilities and equipment;
(f) trade accounts payable and accrued expenses arising Interest Rate Protection Agreements required by the Revolving Credit Facility or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit hedging purposes in the ordinary course of business; and
(lg) so long as no Default or Event of Default exists or would result therefrom at the time incurredAdditional Indebtedness in an amount which , other unsecured together with sale and secured debt (includingleaseback obligations permitted under Section 9.11, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall does not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement$2,000,000.
Appears in 2 contracts
Sources: Purchase Agreement (Westower Corp), Purchase Agreement (Bet Associates Lp)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (a) the Obligations;
collectively, "Permitted Indebtedness"): (b) [intentionally deleted];
(ci) Indebtedness existing under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Agreement Closing Date which and Indebtedness is described incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate amount of such Capitalized Lease Obligations and purchase money indebtedness outstanding at any time shall not exceed $75,000, (iv) Indebtedness in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into connection with advances made by a stockholder in respect order to cure any default of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerfinancial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations and to all of Lender's rights pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the Obligations pursuant to billing date or more than 30 days from the terms of such instrument or a separate written agreementdue date, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of any business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s business;
's independent accountants shall have been reserved; (hvi) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into borrowings incurred in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank not exceeding $10,000 individually 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; aggregate outstanding at any one time, provided, however, that such Indebtedness is extinguished within five (5) Business Days shall be on an unsecured basis, subordinated in right of incurrence;
(k) Indebtedness arising in connection with endorsement repayment and remedies to all of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee to all of such Indebtedness without duplication) (collectively, the “Other Indebtedness”)Lender's rights pursuant to a subordination agreement in form and substance satisfactory to Lender; provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.vii)
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Millstream Acquisition Corp), Revolving Credit and Security Agreement (Millstream Acquisition Corp)
Permitted Indebtedness. The Borrower shall notCreate, and shall not permit any Subsidiary toincur, create, incur guarantee or suffer to exist any Indebtedness, except:except the following (collectively, “Permitted Indebtedness”):
(a) the Obligations;
(b) [intentionally deleted]Subordinated Debt;
(c) Permitted Purchase Money Debt and Capital Lease Obligations; provided that the aggregate amount of all Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(gincurred under this clause (c) heretodoes not exceed $15,000,000 at any time;
(d) Derivatives Contracts entered into in respect (i) Indebtedness outstanding on the Closing Date, listed on Schedule 10.2.1 and not satisfied with proceeds of the Obligationsinitial Loans and (ii) Indebtedness under the Term Loan Facility (including any incremental facility thereunder), in an aggregate principal amount not to exceed $187,000,000;
(e) Indebtedness of a Borrower owed with respect to another Borrower; provided, however, that such Indebtedness is Bank Products (i) unsecured incurred in the Ordinary Course of Business and not for speculative purposes or (ii) required under Section 5.12 of the Term Loan Agreement and not for speculative purposes or any corresponding provision under any Term Loan Facility that refinances the Term Loan Agreement;
(f) (i) Indebtedness that is assumed or incurred by an Obligor or Subsidiary in connection with a Permitted Acquisition or other acquisition of assets permitted hereunder or (ii) Indebtedness that is in existence when a Person becomes a Subsidiary or that is secured by an asset when acquired by a Borrower or Subsidiary, in each case, as part of a Permitted Acquisition, as long as such Indebtedness was not incurred in contemplation of such Person becoming a Subsidiary or such Permitted Acquisition; provided that for both clauses (i) and (ii), after giving effect to such Permitted Acquisition on a pro forma basis, the Net Total Leverage Ratio is no greater than the Net Total Leverage Ratio in effect immediately prior to such Permitted Acquisition;
(g) Permitted Contingent Obligations (excluding Permitted Surety Bonds);
(h) Indebtedness under Permitted Surety Bonds that does not exceed $30,000,000 in the aggregate at any time;
(i) Permitted First Lien Debt in an amount not to exceed the greater of (x) $5,000,000 and (y) an amount such that, at the time of incurrence the Net First Lien Leverage Ratio for the most recently ended four Fiscal Quarters for which financial statements have been delivered pursuant to clause (a) or (b) of Section 10.1.2 immediately preceding the date on which such additional Indebtedness is incurred, determined on a pro forma basis, as if the additional Indebtedness had been incurred at the beginning of such period, is no greater than 3.07 to 1.00; provided that the Fixed Charge Coverage Ratio for the most recently ended trailing twelve month period for which financial statements have been delivered pursuant to Section 10.1.2 immediately preceding the date on which such additional Indebtedness is incurred is at least 1.00 to 1.00, determined on a pro forma basis, as if the additional Indebtedness had been incurred at the beginning of such period;
(j) Permitted Unsecured Debt so long as (i) at the time of incurrence the Net Total Leverage Ratio for the most recently ended four Fiscal Quarters for which financial statements have been delivered pursuant to Section 10.1.2 immediately preceding the date on which such additional Indebtedness is incurred is no greater than 3.75 to 1.00, determined on a pro forma basis, as if the additional Indebtedness had been incurred at the beginning of such period and (ii) subordinated to the Obligations Fixed Charge Coverage Ratio for the most recently ended trailing twelve month period for which financial statements have been delivered pursuant to Section 13.25 hereof or10.1.2 immediately preceding the date on which such additional Indebtedness is incurred is at least 1.00 to 1.00, determined on a pro forma basis, as if the additional Indebtedness had been incurred at the beginning of such period;
(k) Specified Unsecured Prepetition Debt in an aggregate principal amount not to exceed $60,000,000 so long as such Specified Unsecured Prepetition Debt does not mature, require mandatory prepayments (other than in connection with a change of control or to the extent required under Section V.I of the Plan of Reorganization) or require any payment of cash interest, in each case, prior to September 30, 2014;
(l) the Comerica Letter of Credit and the JPM Letter of Credit;
(m) Refinancing Debt as long as each Refinancing Condition is satisfied;
(n) Intercompany Indebtedness of Borrowers and the Subsidiaries to the extent permitted by Section 10.2.5; provided that any such Indebtedness that is evidenced owed by an instrument, Obligor to a Subsidiary that is not an Obligor is subordinated to the Obligations pursuant to an Affiliate Subordination Agreement;
(o) financing of insurance premiums in the terms Ordinary Course of such instrument Business;
(p) Indebtedness incurred in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards (including so-called “procurement cards” or a separate written agreement“P-cards”), or cash management services, netting services, overdraft protection, and other like services, in each case, that is approved by Administrative Agent case incurred in its reasonable discretionthe Ordinary Course of Business;
(fq) trade accounts payable and accrued expenses arising unsecured Indebtedness owing to former employees, officers or occurring in directors (or any spouses, ex-spouses, or estates of any of the ordinary course of business;
(gforegoing) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in connection with the ordinary course repurchase by Company of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees the Equity Interests of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible DebtCompany that have been issued to such Persons, so long as (1i) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists has occurred and is continuing or would result therefrom at from the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee incurrence of such Indebtedness without duplicationand (ii) the aggregate amount of all such Indebtedness outstanding at any one time does not exceed $500,000; provided that any such Indebtedness shall be treated as a Distribution and only be permitted to the extent permitted pursuant to Section 10.2.4;
(collectivelyr) accrual of interest, accretion or amortization of original issue discount, or the payment of interest in kind, in each case on Indebtedness that otherwise constitutes Indebtedness permitted under this Section 10.2.1;
(s) Indebtedness incurred by Subsidiaries that are not Obligors in an aggregate principal amount not to exceed $2,500,000;
(t) to the extent constituting Indebtedness, customary purchase price adjustments, earn outs, indemnification obligations, unsecured guarantees thereof and similar items of Borrowers or any of their Subsidiaries in connection with Permitted Acquisitions, other acquisitions of assets permitted hereunder or Permitted Asset Dispositions;
(u) to the extent constituting Indebtedness, Indebtedness in respect of the Fee Claim Reserve Amounts, the “Other Indebtedness”); provided that: Prepetition Escrowed Amounts and the Delayed Admin Claims;
(v) Borrowers and Subsidiaries may enter into Hedging Agreements that are (i) required by the commitment amount Term Loan Facility and not for speculative purposes or (ii) entered into in the Ordinary Course of such Other Business and not for speculative purposes; and
(w) Indebtedness shall that is not included in any of the preceding clauses of this Section 10.2.1, is not secured by a Lien and does not exceed the Maximum Other Indebtedness Amount $5,000,000 in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.
Appears in 2 contracts
Sources: Loan Agreement (School Specialty Inc), Loan Agreement (School Specialty Inc)
Permitted Indebtedness. The Borrower shall notIndebtedness to Agent, Issuing Bank and shall not permit any Subsidiary to, create, incur Lenders in connection with the Revolving Credit and Letters of Credit or suffer otherwise pursuant to exist any Indebtedness, except:
(a) the Obligations;
Loan Documents; (b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent payables incurred in the ordinary course of any Borrower’s or any Subsidiary Guarantor’s business;
; (hc) performance bondspurchase money Indebtedness (including Capitalized Lease Obligations) hereafter incurred by Borrower or any Subsidiary Guarantor to finance the purchase of fixed assets; provided that, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five incurred in any fiscal year shall not exceed $1,000,000 (5ii) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in purchase price of the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, assets funded and (iii) no such Other Indebtedness is not cross-defaulted to this Agreement, (iv) may be refinanced for a principal amount in excess of the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the principal amount of such Other Indebtedness in the aggregate, determined outstanding at the time of such refinancing; (d) Indebtedness existing on the incurrence thereof, Closing Date that is identified and described on Schedule “1.1(a)” attached hereto and made part hereof; (ve) the Subordinated Debt; (f) Indebtedness of a Fin 46 Entity which is non-recourse to Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time or any Subsidiary Guarantor; (g) guarantees by Borrower of and immediately after giving effect to the incurrence Indebtedness of a Subsidiary Guarantor so long as such Indebtedness of such Other Subsidiary Guarantor constitutes Permitted Indebtedness; (h) Indebtedness under Hedging Agreements; (i) upon and following the consummation of the Merger, Indebtedness of the Post-Merger Parent that is non-recourse to Borrower or any Subsidiary Guarantor, and (vij) no covenants under any such Other Indebtedness incurred pursuant related to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementthe ▇▇▇▇ CDS.
Appears in 2 contracts
Sources: Loan and Security Agreement (Alesco Financial Inc), Loan and Security Agreement (Alesco Financial Inc)
Permitted Indebtedness. The Borrower shall notNo Subsidiary will incur, and shall not create or permit any Subsidiary to, create, incur or suffer to exist indebtedness to any Indebtedness, except:
(a) person or entity other than Pioneer and the Obligations;
(b) [intentionally deleted];
(c) Indebtedness existing on Banks except only the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent following permitted indebtedness incurred in the ordinary course of any Borrowereach of such Subsidiary’s business;
respective business (hthe “Permitted Indebtedness”) performance bonds(i) current trade payables not more than ninety (90) days past due, completion bonds(ii) lease obligations for real estate, other bonds customarily used by any Borrower in its trade or businessfixtures and equipment, surety and appeal bonds(iii) purchase money obligations for capital expenditures, guarantees of performance(iv) Lending License Bonds permitted under this Agreement, and guarantees (v) the System Acquisition Agreement. The aggregate amount of Indebtedness of a special district entered into all such Subsidiary Permitted Indebtedness, excluding real property lease obligations for each Subsidiary, shall not exceed Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate for all Subsidiaries at any time, provided, however, that the Lending License Bonds permitted hereunder shall not be included in the $250,000 aggregate limitation for Subsidiaries. Pioneer will not incur, create or permit to exist indebtedness to any Person other than the Banks except only the following permitted indebtedness incurred in the ordinary course of Pioneer’s business (in each case other than for an obligation for money borrowedthe “Pioneer Permitted Indebtedness”);
(i) the Convertible Debt, so long as current trade payables not more than ninety (190) [intentionally deleted]days past due, (2ii) lease obligations for real estate, fixtures and equipment, (iii) purchase money obligations for capital expenditures, (iv) Subordinated Indebtedness, (v) Lending License Bonds permitted under this Agreement, and (vi) the Convertible Debt remains unsecuredamounts due under the System Acquisition Agreement executed or to be executed by Pioneer in connection with the FIS System. The aggregate amount of all such Pioneer Permitted Indebtedness, excluding Subordinated Indebtedness and real property lease obligations, shall not exceed Five Hundred Thousand Dollars (3$500,000) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; aggregate for Pioneer at any time,” provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments the Lending License Bonds and the System Acquisition Agreement obligation for deposit the FIS System permitted hereunder shall not be included in the ordinary course $500,000 aggregate limitation for Pioneer.
1.8 Section 7.4 “Redemption/Guarantees/Advances/Issuance of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, Stock/Dividend” shall be no greater than two (2) times the amount of such Other Indebtedness deleted in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower its entirety and shall be in compliance replaced with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.following:
Appears in 1 contract
Sources: Secured Senior Lending Agreement (Pioneer Financial Services Inc)
Permitted Indebtedness. The Borrower shall not(a) Directly or indirectly, Incur any Indebtedness (including Acquired Indebtedness) or issue any shares of Disqualified Stock and shall Intermediate Holdings will not permit any Subsidiary to, create, incur or suffer of its Restricted Subsidiaries to exist issue any Indebtedness, except:
(a) the Obligations;
(b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect shares of the Obligations;
(e) Indebtedness of a Borrower owed to another BorrowerPreferred Stock; provided, however, that Intermediate Holdings and any Restricted Subsidiary may Incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and any Restricted Subsidiary may issue shares of Preferred Stock, in each case if the Term Loan Fixed Charge Coverage Ratio of Intermediate Holdings and its Restricted Subsidiaries for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is Incurred or such Disqualified Stock or Preferred Stock is issued would have at least 2.00 to 1.00 determined on a pro forma basis (iincluding a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been Incurred, or the Disqualified Stock or Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of such four-quarter period; provided, further, that the aggregate amount of Indebtedness (including Acquired Indebtedness) unsecured that may be Incurred and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations Disqualified Stock or Preferred Stock that may be issued pursuant to the terms of such instrument or a separate written agreement, in each case, foregoing by Restricted Subsidiaries that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness U.S. Domiciled Loan Parties shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; greater of (iix) such Other Indebtedness, if secured, is secured by property other than the Collateral, $100,000,000 and (iiiy) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value 5.0% of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined Consolidated Total Assets at the time of the incurrence thereofIncurrence, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the any one time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementoutstanding.
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not, and Guarantor shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any IndebtednessIndebtedness for Borrowed Money, except:except the following (collectively, "PERMITTED INDEBTEDNESS"):
(a) Indebtedness under the Obligations;
Loan Documents or the Guarantor Revolving Credit Loan Documents; (b) [intentionally deleted];
any Indebtedness set forth on SCHEDULE 5.3.2 and any Indebtedness which refinances or replaces such Indebtedness to the extent such refinanced Indebtedness does not increase the total principal amount thereof, extend the maturity date, accelerate the amortization or is otherwise on terms and conditions which are not materially more onerous to Guarantor ("PERMITTED REFINANCED INDEBTEDNESS"); (c) (i) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness existing incurred pursuant to purchase money Liens permitted by Section 5.3.3(v) and any Permitted Refinanced Indebtedness with respect thereto, provided that the aggregate amount thereof outstanding at any time shall not exceed $5,000,000; (ii) Indebtedness on a non-recourse (other than customary carve-outs for non-recourse financings) basis to any assets of Guarantor other than the Agreement Date asset or assets that are collateral securing such Indebtedness and which is secured by a Lien permitted pursuant to Section 5.3.3(v) and any Permitted Refinancing Indebtedness is described with respect thereto and (iii) Indebtedness incurred in Schedule 7.1(gconnection with the Eureka Transaction; provided that the aggregate amount outstanding under at any time under Section 5.3.2(c)(ii) hereto;
plus Section 5.3.2(c)(iii) shall not exceed $30,000,000; (d) Derivatives Contracts entered into Indebtedness in respect connection with advances made by a stockholder in order to cure any default of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerfinancial covenants set forth on Annex I; provided, however, that such Indebtedness is shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Debt and to all of Lender's rights and in form and substance reasonably satisfactory to Lender; (ie) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent borrowings incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade business and not exceeding $10,000,000 individually or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of businessaggregate outstanding at any one time; provided, however, that such Indebtedness is extinguished within five shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Debt and to all of Lender's rights and in form and substance satisfactory to Lender; (5f) Business Days Subordinated Debt, provided, however, the aggregate principal amount of incurrence;
Subordinated Debt (i) evidenced by the Indenture and the Indenture Notes and any Permitted Refinanced Indebtedness with respect thereto shall not exceed $106,761,608, and (ii) evidenced by the Bergen Note and any Permitted Refinanced Indebtedness with respect thereto shall not exceed $1,237,880, (i) Indebtedness constituting Priority Claims; (j) Indebtedness in respect of insurance premiums payable to the Insurance Subsidiary in an aggregate amount not to exceed $10,000,000 and (k) additional unsecured Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default business in an aggregate amount not to exceed $2,000,000. Notwithstanding anything in this Section 5.3.2 or Event of Default exists or would result therefrom at this Agreement to the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectivelycontrary, the “Other Indebtedness”); provided that: (i) the commitment aggregate amount of such Other Indebtedness for Borrowed Money of Guarantor on a Consolidated Basis, exclusive of the Obligations (as defined in the Revolving Loan Documents) shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness $255,000,000 in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Skilled Healthcare Group Inc)
Permitted Indebtedness. The Neither the Borrower shall not, and shall not permit nor any Subsidiary to, will create, incur or suffer to exist any Indebtedness, except, without duplication and without duplication as to the Borrower and Subsidiaries:
(a) the The Obligations;
(b) [intentionally deleted];
(c) Unsecured Indebtedness existing on the Agreement Date which Indebtedness is and described in on Schedule 7.1(g) attached hereto;
(dc) Derivatives Contracts entered into in respect of the Obligations;
(ed) Indebtedness of a the Borrower owed to another Borrowera Subsidiary Guarantor, Indebtedness of a Subsidiary Guarantor owed to the Borrower and Indebtedness of a Subsidiary Guarantor owed to a Subsidiary Guarantor; provided, however, that such (a) any Indebtedness of the Borrower owed to a Subsidiary Guarantor is (i) unsecured and (ii) subordinated to the Borrower’s Obligations pursuant hereunder in a manner satisfactory to Section 13.25 hereof orthe Administrative Agent, if and (b) upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness is evidenced by an instrument, is subordinated being owed to any Person other than the Obligations pursuant to the terms of such instrument Borrower or a separate written agreementSubsidiary Guarantor, in each casethe Borrower or such Subsidiary Guarantor hereunder, that is approved as applicable, shall be deemed to have incurred Indebtedness not permitted by Administrative Agent in its reasonable discretionthis clause (d);
(fe) trade Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(f) Indebtedness with respect to Letters of Credit;
(g) Indebtedness consisting of taxes Taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of the Borrower’s or any BorrowerSubsidiary’s business;
(h) performance Performance bonds, completion bonds, other bonds customarily used by any the Borrower in its trade or business, surety and appeal bonds, guarantees of performance, performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) Indebtedness arising under a guarantee of indebtedness of any Joint Venture (provided that such guarantee shall be deemed to be an investment in such Joint Venture and subject to the Convertible Debt, so long as limitations in clause (1e) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms definition of this Agreement Permitted Investments and (4) UHG complies with Section 10.10 below10.1(e));
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and;
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, i) Capitalized Lease Obligations and (ii) Non-Recourse Indebtedness secured by purchase money Liens on any Guarantee Property (other than any Borrowing Base Property) hereafter acquired or the assumption of any Lien on Property (other than any Borrowing Base Property) existing at the time of such Indebtedness without duplicationacquisition (and not created in contemplation of such acquisition), provided that (1) (collectively, the “Other Indebtedness”); provided that: amount outstanding under clauses (i) the commitment amount of such Other Indebtedness and (ii) shall not exceed the Maximum Other Indebtedness Threshold Amount in the aggregate at any time; time and (2) with respect to Indebtedness incurred under clause (ii) such Other Indebtedness, if secured, is secured by property other than the Collateralabove, (iiiX) any Property securing such Other Indebtedness is not cross-defaulted shall have been acquired by the Borrower or any Subsidiary in the ordinary course of its respective business and the Lien on any such Property shall attach to this Agreementsuch asset concurrently or within ninety (90) days after the acquisition thereof, (ivY) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time shall not exceed such purchase price or cost of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of any Property securing such Other Indebtedness, and (viZ) no covenants under any such Other Indebtedness incurred pursuant each Lien shall attach only to this clause the Property so acquired;
(lm) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.Intentionally omitted;
Appears in 1 contract
Sources: Credit Agreement (LGI Homes, Inc.)
Permitted Indebtedness. The Borrower shall notNot, and shall not permit any Subsidiary of its Subsidiaries to, create, incur incur, assume or suffer permit to exist or otherwise become or be liable in respect of any IndebtednessIndebtedness unless approved in writing by the Required Lenders, except:
(ai) Indebtedness under this Agreement and the Obligationsother Loan Documents;
(b) [intentionally deleted];
(cii) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the ObligationsMedium Term Notes and any Indebtedness refinancing such Medium Term Notes or in extension or renewal thereof;
(eiii) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade current accounts payable and accrued expenses liabilities arising or occurring in the ordinary course of business;
(giv) Indebtedness consisting incurred in connection with the Liens permitted by SECTION 9.3.4;
(v) Indebtedness of taxes payableany Material Subsidiary of the Borrower payable to the Borrower PROVIDED that such Indebtedness shall be evidenced by the Intercompany Subordinated Demand Note of such Material Subsidiary payable to the order of the Borrower, and obligations endorsed over to the Collateral Agent pursuant to the terms of, and subject to the Liens created under, the Notes Security Agreement, and PROVIDED FURTHER, that such Indebtedness shall be subordinated pursuant to the terms of a subordination agreement in substantially the form of the Subordination Agreement referred to in SECTION 11.1.10;
(a) Capitalized Lease Obligations; provided the amount of Capitalized Lease Obligations payable by the Borrower and its Subsidiaries during any calendar year does not exceed $20,000,000 in the aggregate and (b) Indebtedness of the Borrower and its Subsidiaries of the type described in CLAUSE (D) of the definition of "INDEBTEDNESS"; PROVIDED the amount of rentals payable by the Borrower and its Subsidiaries under all arrangements (other than the Lease) for such Indebtedness described in such CLAUSE (D) during any calendar year does not exceed $7,500,000 in the aggregate;
(vii) Indebtedness of the Borrower or any of its Subsidiaries in respect of customer deposits, all Hedging Obligations from time to the extent incurred time entered into in the ordinary course of any Borrower’s businessaccordance with customary industry practice;
(hviii) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of [Intentionally omitted];
(ix) Indebtedness of a special district entered into the Borrower and the Lessee under the Operative Documents, all as in effect on the ordinary course date hereof;
(x) Indebtedness of business the Borrower to the Holding Company or the Parent Company evidenced by the RSNs in an aggregate original principal amount not to exceed $100,000,000;
(xi) Indebtedness permitted under SECTION 9.3.5;
(xii) Indebtedness for current taxes and deferred taxes not delinquent or being contested in each case other than for an obligation for money borrowedgood faith and by appropriate proceedings;
(xiii) Indebtedness of the Borrower to the Parent Company or its Affiliates permitted under SECTION 9.3.1(V);
(ixiv) the Convertible Debt, so long as Indebtedness in respect of one or more letters of credit (1other than Letters of Credit) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions in an aggregate undrawn face amount not to exceed $4,000,000 for all such letters of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 belowcredit;
(jxv) Indebtedness arising from of any Material Subsidiary of the honoring Borrower (the "PAYOR") to any other Subsidiary of the Borrower (the "PAYEE") PROVIDED that (a) such Indebtedness shall be evidenced by a bank or other financial institution promissory note of a checkthe Payor payable to the order of the Payee, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (iib) such Other Indebtedness, if secured, promissory note is secured by property other than subordinated to the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time Guaranty of the incurrence thereof, (v) Payor and the Borrower shall be other obligations of the Payor to the Lenders and the Agents pursuant to subordination provisions in compliance with such promissory note no less favorable to the financial covenants Lenders than those provisions set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.EXHIBIT 9.3.3
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not(a) Directly or indirectly, Incur any Indebtedness (including Acquired Indebtedness) or issue any shares of Disqualified Stock and shall Holdings will not permit any Subsidiary to, create, incur or suffer of its Restricted Subsidiaries to exist issue any Indebtedness, except:
(a) the Obligations;
(b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect shares of the Obligations;
(e) Indebtedness of a Borrower owed to another BorrowerPreferred Stock; provided, however, that Holdings and any Restricted Subsidiary may Incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and any Restricted Subsidiary may issue shares of Preferred Stock, in each case if the Fixed Asset Fixed Charge Coverage Ratio of Parent and its Restricted Subsidiaries on a consolidated basis for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is Incurred or such Disqualified Stock or Preferred Stock is issued would have at least 2.00 to 1.00 determined on a pro forma basis (iincluding a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been Incurred, or the Disqualified Stock or Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of such four-quarter period; provided, further, that the aggregate amount of Indebtedness (including -150- Acquired Indebtedness) unsecured that may be Incurred and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations Disqualified Stock or Preferred Stock that may be issued pursuant to the terms of such instrument or a separate written agreement, in each case, foregoing by Restricted Subsidiaries that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness U.S. Domiciled Loan Parties shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; greater of (iix) such Other Indebtedness, if secured, is secured by property other than the Collateral, $130,000,000 and (iiiy) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value 5.0% of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined Consolidated Total Assets at the time of the incurrence thereofIncurrence, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the any one time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementoutstanding.
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not, Company will not and shall will not permit any Subsidiary to, of its Subsidiaries to create, incur incur, assume or suffer to exist any Indebtedness, except:
Indebtedness for borrowed money after the date of this Agreement except for (ai) the Obligations;
; (bii) [intentionally deleted];
the Senior Debt; (c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(eiii) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations Company pursuant to the terms Junior Subordinated Note Purchase Agreement; (iv) Indebtedness of such instrument or a separate written agreementany Subsidiary of the Company to the Company; (v) accounts payable to trade creditors and current operating expenses (other than for Funded Debt) which are not aged more than 30 days from the due date, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of any Borrower’s business;
business and paid within such time period, unless the same are being actively contested in good faith and by appropriate and lawful proceedings and the Company or such Subsidiary shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by the Company or such Subsidiary and its independent accountants; (hvi) performance bonds, completion bonds, obligations to pay Rentals permitted by Section 7.17; (vii) Permitted Purchase Money Indebtedness; (viii) contingent liabilities arising out of endorsements of checks and other bonds customarily used by any Borrower in its trade negotiable instruments for deposit or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds collection in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(kix) Indebtedness arising under Capitalized Leases listed on Schedule 7.2; (x) Indebtedness incurred in connection with endorsement performance bonds, workmen’s compensation bonds or the like; (xi) Indebtedness under the leases of instruments for deposit the Company’s manufacturing plants at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ and at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇▇; (xii) Indebtedness under the leases of real property at ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇; (xiii) Indebtedness under the Sale and Leaseback Documents; (xiv) Indebtedness incurred pursuant to the ETI Subordinated Note; and (xv) Indebtedness not included in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: paragraphs (i) the commitment amount of such Other Indebtedness shall through (xiv) above which does not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time sum of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement$1,000,000.
Appears in 1 contract
Sources: Senior Subordinated Note Purchase Agreement (Pw Eagle Inc)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (a) the Obligations;
collectively, “Permitted Indebtedness”): (b) [intentionally deleted];
(ci) Indebtedness existing under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Agreement Closing Date which and Indebtedness is described incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate amount of such Capitalized Lease Obligations and purchase money indebtedness outstanding at any time shall not exceed $100,000, (iv) Indebtedness in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into connection with advances made by a stockholder in respect order to cure any default of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerfinancial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an unsecured and (ii) subordinated basis or secured by assets unrelated to the Collateral, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the Obligations pursuant to billing date or more than 30 days from the terms of such instrument or a separate written agreementdue date, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of any business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s business;
independent accountants shall have been reserved; and (hvi) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into borrowings incurred in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank not exceeding $100,000 individually 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; aggregate outstanding at any one time, provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default shall be on an unsecured basis or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property assets other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted subordinated in right of repayment and remedies to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time all of the incurrence thereof, (v) the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender. Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect not make prepayments on any existing or future Indebtedness to any Person other than to Lender or to the incurrence of such Other Indebtedness, extent specifically permitted by this Agreement or any subsequent agreement between Borrower and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this AgreementLender).
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Boston Biomedica Inc)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(a) the Obligations;
(b) [intentionally deleted]deleted];the Subordinate Debt, so long as (i) the Subordinate Debt complies with the Subordinate Debt Requirements, (ii) the Convertible Debt is paid off in connection with Borrower incurring the Subordinate Debt, (iii) the aggregate principal amount of such Subordinate Debt shall not exceed $70,000,000 at any time and (iv) Borrower complies with Section 10.11 below;
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.
Appears in 1 contract
Permitted Indebtedness. The Neither the Borrower shall not, and shall not permit nor any Subsidiary to, will create, incur or suffer to exist any Indebtedness, except, without duplication and without duplication as to the Borrower and Subsidiaries:
(a) the The Obligations;
(b) [intentionally deleted]Unsecured Indebtedness existing on the AgreementThird Amendment Effective Date and described on Schedule 7.1(g) attached hereto;
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(ed) Indebtedness of a the Borrower owed to another Borrowera Subsidiary Guarantor, Indebtedness of a Subsidiary Guarantor owed to the Borrower and Indebtedness of a Subsidiary Guarantor owed to a Subsidiary Guarantor; provided, however, that such (a) any Indebtedness of the Borrower owed to a Subsidiary Guarantor is (i) unsecured and (ii) subordinated to the Borrower’s Obligations pursuant hereunder in a manner satisfactory to Section 13.25 hereof orthe Administrative Agent, if and (b) upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness is evidenced by an instrument, is subordinated being owed to any Person other than the Obligations pursuant to the terms of such instrument Borrower or a separate written agreementSubsidiary Guarantor, in each casethe Borrower or such Subsidiary Guarantor hereunder, that is approved as applicable, shall be deemed to have incurred Indebtedness not permitted by Administrative Agent in its reasonable discretionthis clause (d);
(fe) trade Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(f) Indebtedness with respect to Letters of Credit;
(g) Indebtedness consisting of taxes Taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of the Borrower’s or any BorrowerSubsidiary’s business;
(h) performance Performance bonds, completion bonds, other bonds customarily used by any the Borrower in its trade or business, surety and appeal bonds, guarantees of performance, performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) Indebtedness arising under a guarantee of indebtedness of any Joint Venture (provided that such guarantee shall be deemed to be an investment in such Joint Venture and subject to the Convertible Debt, so long as limitations in clause (1e) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms definition of this Agreement Permitted Investments and (4) UHG complies with Section 10.10 below10.1(e));
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and;
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, i) Capitalized Lease Obligations and (ii) Non-Recourse Indebtedness secured by purchase money Liens on any Guarantee Property (other than any Borrowing Base Property) hereafter acquired or the assumption of any Lien on Property (other than any Borrowing Base Property) existing at the time of such Indebtedness without duplicationacquisition (and not created in contemplation of such acquisition), provided that (1) (collectively, the “Other Indebtedness”); provided that: amount outstanding under clauses (i) the commitment amount of such Other Indebtedness and (ii) shall not exceed the Maximum Other Indebtedness Threshold Amount in the aggregate at any time and (2) with respect to Indebtedness incurred under clause (ii) above, (X) any Property securing such Indebtedness shall have been acquired by the Borrower or any Subsidiary in the ordinary course of its respective business and the Lien on any such Property shall attach to such asset concurrently or within ninety (90) days after the acquisition thereof, (Y) the amount of such Indebtedness shall not exceed such purchase price or cost of any Property securing such Indebtedness, and (Z) each Lien shall attach only to the Property so acquired;
(m) Indebtedness with respect to letters of credit (other than Letters of Credit); provided that (i) the aggregate face amount of such letters of credit does not exceed $10,000,000 at any time; , (ii) such Other Indebtedness, if secured, Indebtedness is unsecured or cash-secured by property other than the Collateral, and (iii) if cash-secured, the cash used to secure such Other Indebtedness is not cross-defaulted excluded (to this Agreement, (ivthe extent otherwise included) from the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time calculations of the incurrence thereof, (v) the Borrower shall be in compliance with Borrowing Base or the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.10.1;
Appears in 1 contract
Sources: Credit Agreement (LGI Homes, Inc.)
Permitted Indebtedness. The Borrower shall notCreate, and shall not permit any Subsidiary toincur, create, incur guarantee or suffer to exist any Indebtedness, except:except the following (collectively, “Permitted Indebtedness”):
(a) the ObligationsObligations (including Indebtedness in respect of the Delayed Draw Term Loans);
(b) [intentionally deleted]Subordinated Debt in an aggregate principal amount not to exceed $5,000,000;
(c) Permitted Purchase Money Debt and Capital Lease Obligations; provided that the aggregate amount of all Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(gincurred under this clause (c) heretodoes not exceed $2,000,000 at any time;
(d) Derivatives Contracts entered into (i) Indebtedness outstanding on the Closing Date, listed on Schedule 10.2.1 and (ii) Indebtedness under the Revolving Loan Facility (including any incremental facility thereunder), in respect of an aggregate principal amount not to exceed the ObligationsMaximum ABL Principal Obligations (as defined in the Intercreditor Agreement);
(e) Indebtedness with respect to Bank Products (as defined in the Revolving Loan Facility) (or any such similar term) incurred in the Ordinary Course of a Borrower owed to another Borrower; provided, however, that such Indebtedness is Business and not for speculative purposes;
(f) (i) unsecured Indebtedness of an Obligor or Subsidiary that is incurred on the date of the consummation of a Permitted Acquisition or other acquisition of assets permitted hereunder solely for the purpose of consummating such Permitted Acquisition or such other acquisition so long as (A) no Event of Default has occurred and is continuing or would result therefrom, (B) such unsecured Indebtedness is not incurred for working capital purposes, (C) such unsecured Indebtedness does not mature prior to the date that is six (6) months after the Maturity Date, (D) such unsecured Indebtedness does not amortize until six (6) months after the Maturity Date, (E) such unsecured Indebtedness does not provide for the payment of interest thereon in cash or Cash Equivalents prior to the date that is six (6) months after the Maturity Date, and (F) such Indebtedness is subordinated in right of payment to the Obligations on terms and conditions reasonably satisfactory to Agent, (ii) Indebtedness that is in existence prior to the date when a Person becomes a Subsidiary or that is secured by Equipment when acquired by Borrower or a Subsidiary, in each case, as part of a Permitted Acquisition, as long as such Indebtedness was not incurred in contemplation of such Person becoming a Subsidiary or such Permitted Acquisition; provided that for both clauses (i) and (ii), after giving effect to such Permitted Acquisition on a pro forma basis, the Net Senior Leverage Ratio is no greater than the Net Senior Leverage Ratio in effect immediately prior to such Permitted Acquisition;
(g) subordinated Permitted Contingent Obligations (excluding Permitted Surety Bonds);
(h) Indebtedness under Permitted Surety Bonds that does not exceed $20,000,000 in the aggregate at any time;
(i) [Intentionally omitted];
(j) Specified Unsecured Prepetition Debt in an aggregate principal amount not to exceed $24,500,000;
(k) Refinancing Debt as long as each Refinancing Condition is satisfied;
(l) Intercompany Indebtedness of Borrower and its Subsidiaries to the Obligations pursuant to extent permitted by Section 13.25 hereof or, if 10.2.5; provided that any such Indebtedness that is evidenced owed by an instrument, Obligor to a Subsidiary that is not an Obligor is subordinated to the Obligations pursuant to an Affiliate Subordination Agreement;
(m) financing of insurance premiums in the terms Ordinary Course of such instrument Business;
(n) Indebtedness incurred in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards (including so-called “procurement cards” or a separate written agreement“P-cards”), or cash management services, netting services, overdraft protection, and other like services, in each case, that is approved by Administrative Agent case incurred in its reasonable discretionthe Ordinary Course of Business;
(fo) trade accounts payable and accrued expenses arising unsecured Indebtedness owing to former employees, officers or occurring in directors (or any spouses, ex-spouses, or estates of any of the ordinary course of business;
(gforegoing) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in connection with the ordinary course repurchase by Borrower of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any the Equity Interests of Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debtthat have been issued to such Persons, so long as (1i) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists has occurred and is continuing or would result therefrom at from the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee incurrence of such Indebtedness without duplicationand (ii) (collectively, the “Other Indebtedness”)aggregate amount of all such Indebtedness outstanding at any one time does not exceed $500,000; provided that: (i) the commitment amount of that any such Other Indebtedness shall be treated as a Distribution and only be permitted to the extent permitted pursuant to Section 10.2.4;
(p) accrual of interest, accretion or amortization of original issue discount, or the payment of interest in kind, in each case on Indebtedness that otherwise constitutes Indebtedness permitted under this Section 10.2.1;
(q) Indebtedness incurred by Subsidiaries that are not Obligors in an aggregate principal amount not to exceed $2,500,000;
(r) to the extent constituting Indebtedness, customary purchase price adjustments, earn outs, indemnification obligations, unsecured guarantees thereof and similar items of Borrower or any of its Subsidiaries in connection with Permitted Acquisitions, other acquisitions of assets permitted hereunder or Permitted Asset Dispositions;
(s) Borrower and its Subsidiaries may enter into Hedging Agreements that are entered into in the Ordinary Course of Business and not for speculative purposes; and
(t) Indebtedness that is not included in any of the preceding clauses of this Section 10.2.1, is not secured by a Lien and does not exceed the Maximum Other Indebtedness Amount $5,000,000 in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (collectively, "PERMITTED INDEBTEDNESS"): (a) Indebtedness under the Obligations;
Loan Documents, (b) [intentionally deleted];
any Indebtedness set forth on Schedule 7.2 or arising after the date hereof pursuant to commitments set forth in Schedule 7.2 and any refunding or renewals thereof which do not increase the principal amount of such Indebtedness; (c) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness existing on incurred pursuant to purchase money Liens permitted by Section 7.3(e); provided, that the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
aggregate amount thereof outstanding at any time shall not exceed $1,000,000, (d) Derivatives Contracts entered into in respect of current liabilities (other than for borrowed money) to the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is extent (i) unsecured incurred in the ordinary course of business consistent with past practices and (ii) subordinated discharged or satisfied at or before the due date for payment (subject to ordinary course payment practices), unless the Obligations pursuant to Section 13.25 hereof orsame are being contested in good faith and by appropriate and lawful proceedings and such reserves, if such Indebtedness is evidenced any, with respect thereto as are required by an instrumentGAAP and deemed adequate by Borrower's independent accountants shall have been reserved, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(fe) trade accounts payable and accrued expenses arising or occurring borrowings incurred in the ordinary course of business;
, (f) other indebtedness in an amount not exceeding $1,000,000 individually or in the aggregate outstanding at any one time; (g) indemnities under Government Contracts, (h) Subordinated Debt in an amount not to exceed $10,000,000 at any one time outstanding, (i) Indebtedness consisting of taxes payable, and obligations in with respect of customer deposits, all to financed insurance premiums to the extent incurred in the ordinary course of any Borrower’s business;
not past due, (hj) performance bonds, completion bonds, other bonds customarily used Contingent Obligations undertaken by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of with respect to the Indebtedness of a special district entered into in any other Borrower, to the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long extent such Indebtedness is permitted hereunder as (1) [intentionally deleted]set forth on Schedule 7.2, (2k) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement intercompany debt between or among Borrowers hereto and (4l) UHG complies reimbursement obligations with Section 10.10 below;
(j) Indebtedness arising from the honoring respect to letters of credit that are secured by a bank or other financial institution of a checkcash collateral accounts, 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 in each case under this Section 7.2, all such Indebtedness is extinguished within five (5other than the Indebtedness constituted of reimbursement obligations with respect to the Existing Letters of Credit issued by ▇▇▇▇▇ Fargo Foothill) Business Days shall be on an unsecured basis, except for Permitted Liens relating to money borrowed which shall be subordinated in right of incurrence;
(k) repayment and remedies to all of the Obligations and to all of the Lenders' rights in form and substance satisfactory to Agent. Borrower shall not make prepayments on any existing or future Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, to any Person other unsecured and secured debt (includingthan to Agent, for the avoidance benefit of doubtLenders, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect or to the incurrence of such Other Indebtednessextent specifically permitted by this Agreement or any subsequent agreement between Borrower, Agent and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this AgreementLenders.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (America Service Group Inc /De)
Permitted Indebtedness. The Neither Borrower shall not, and shall not permit nor any Subsidiary to, will create, incur or suffer to exist any Indebtedness, except, without duplication and without duplication as to Borrower and Subsidiaries:
(a) the The Obligations;
(b) [intentionally deleted];
(c) Unsecured Indebtedness existing on the Agreement Date which Indebtedness is and described in on Schedule 7.1(g) attached hereto;
(dc) Derivatives Contracts entered into in respect of the Obligations;
(ed) Indebtedness of a Borrower owed to another Borrowera Subsidiary Guarantor, Indebtedness of a Subsidiary Guarantor owed to Borrower and Indebtedness of a Subsidiary Guarantor owed to a Subsidiary Guarantor; provided, however, that (a) any Indebtedness of Borrower owed to a Subsidiary Guarantor is unsecured and subordinated to Borrower’s Obligations hereunder in a manner satisfactory to Administrative Agent, and (b) upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness is (i) unsecured and (ii) subordinated being owed to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument any Person other than Borrower or a separate written agreementSubsidiary Guarantor, in each caseBorrower or such Subsidiary Guarantor hereunder, that is approved as applicable, shall be deemed to have incurred Indebtedness not permitted by Administrative Agent in its reasonable discretionthis clause (d);
(fe) trade Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(f) Indebtedness with respect to Letters of Credit;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s or any Subsidiary’s business;; NAI-1502661059v7 94
(h) performance Performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) Indebtedness arising under a guarantee of indebtedness of any Joint Venture (provided that such guarantee shall be deemed to be an investment in such Joint Venture and subject to the Convertible Debt, so long as limitations in clause (1e) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms definition of this Agreement Permitted Investments and (4) UHG complies with Section 10.10 below10.1(e));
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and;
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, i) Capitalized Lease Obligations and (ii) Non-Recourse Indebtedness secured by purchase money Liens on any Guarantee Property (other than any Borrowing Base Property) hereafter acquired or the assumption of any Lien on Property (other than any Borrowing Base Property) existing at the time of such acquisition (and not created in contemplation of such acquisition), provided that (1) the amount outstanding under clauses (i) and (ii) shall not exceed $500,000 in the aggregate at any time and (2) with respect to Indebtedness incurred under clause (ii) above, (X) any Property securing such Indebtedness shall have been acquired by Borrower or any Subsidiary in the ordinary course of its respective business and the Lien on any such Property shall attach to such asset concurrently or within ninety (90) days after the acquisition thereof, (Y) the amount of such Indebtedness without duplicationshall not exceed such purchase price or cost of any Property securing such Indebtedness, and (Z) each Lien shall attach only to the Property so acquired;
(collectivelym) The Subordinated Convertible Notes, the “Other Indebtedness”); provided that: that (i) the commitment outstanding principal amount of such Other Indebtedness shall does not exceed the Maximum Other Indebtedness Amount $85,000,000 in the aggregate at any time; , (ii) such Other Indebtedness, if secured, Indebtedness is secured by property other than the Collateralunsecured, (iii) such Other Indebtedness is subordinate to the Obligations and (iv) such Indebtedness is not cross-defaulted guaranteed by any Subsidiary Guarantor unless such guaranty is subordinated to this Agreementthe Guarantied Obligations in a manner satisfactory to Administrative Agent in its sole and absolute discretion (including, without limitation, a subordination agreement);
(ivn) the Fair Market Value of such property that secures such Other Unsecured Indebtedness, if anyprovided that (A) after giving effect thereto, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be is in compliance with the financial covenants set forth in Section 10.1 at 10.1, (B) the time of and immediately after giving effect to the incurrence maturity date of such Other IndebtednessIndebtedness is at least one (1) year after the Maturity Date, and (viC) any covenants contained in the documents evidencing such Indebtedness must be no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those the covenants contained in this Agreement., as determined by Administrative Agent in its sole discretion, and (D) such Indebtedness shall not contain any cross default to this Agreement;
(o) CDD Debt; and
Appears in 1 contract
Sources: Credit Agreement (LGI Homes, Inc.)
Permitted Indebtedness. The Incur or permit to exist or remain outstanding any Indebtedness; provided, however, that the Consolidated Group may incur or permit to exist or remain outstanding:
(a) Indebtedness under this Agreement;
(b) Tower Construction Loans, subject to the requirements of Section 8.03;
(c) non-recourse purchase money Indebtedness, subject to the restrictions set forth in Section 7.02(l);
(d) Indebtedness assumed in connection with the acquisition of an asset or Indebtedness of a Person, in either case, existing at the time such asset or Person is acquired by, or merged or consolidated with or into, any member of the Consolidated Group (and refinancings, refundings, renewals, extensions, and replacements of such Indebtedness that do not increase the outstanding principal amount thereof at the time of such refinancing, refunding, renewal, extension, or replacement), so long as (i) such Indebtedness was not incurred in contemplation of such acquisition, merger, or consolidation, and (ii) no Default or Event of Default then exists or arises as a result thereof;
(e) Subordinated Indebtedness incurred or issued in accordance with Section 7.07, provided that the Net Cash Proceeds thereof are applied in accordance with Section 2.03;
(f) Indebtedness in respect of Swap Contracts;
(g) existing Indebtedness described in Schedule 7.01(g), and refinancings, refunding, renewals, extensions, exchanges, and replacements of such Indebtedness that (i) do not increase the outstanding principal amount thereof at the time of such refinancing, refunding, renewal, extension, or replacement, (ii) do not contain covenants that are materially less favorable to the applicable member of the Consolidated Group, and (iii) are incurred or issued in accordance with Section 7.07 to the extent that the applicable existing Indebtedness is Subordinated Indebtedness;
(h) Indebtedness (other than Subordinated Indebtedness) incurred or issued after the Fourth Amendment Effective Date and prior to August 15, 2008 specifically for the purpose of, and applied to, repaying or repurchasing, or issued in exchange for, Borrower’s 4% Contingent Convertible Subordinated Notes due 2023, subject to each of the following conditions precedent:
(i) no Default or Event of Default (including pursuant to Sections 9.01(o) and (p)) shall exist before or after giving effect to the incurrence or issuance thereof;
(ii) such Indebtedness is not secured by any Lien on any property or assets of Borrower or any of its subsidiaries;
(iii) the covenants and events of default contained in any indenture or other agreement relating to such Indebtedness must not be more restrictive than the covenants and events of default contained in this Agreement;
(iv) the maturity date of such Indebtedness must be more than ninety (90) days beyond the Maturity Date and the maturity date of the Revolving Credit Facility Loans; and
(v) such Indebtedness shall not have any scheduled or mandatory principal payments prior the maturity date of such Indebtedness and Borrower agrees that it shall not, and shall not permit any Subsidiary other member of the Consolidated Group to, createrepay, incur prepay, purchase, redeem or suffer to exist any Indebtedness, except:
(a) the Obligations;
(b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that otherwise acquire such Indebtedness is (i) unsecured and (ii) subordinated prior to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed)maturity date thereof;
(i) Guarantees (i) of Indebtedness of any member of the Convertible Debt, so long as Consolidated Group permitted by clauses (1) [intentionally deleted]b), (2) the Convertible Debt remains unsecuredd), (3f), and (h) the terms and conditions of this Section 7.01, (ii) of Subordinated Indebtedness of any member of the Convertible Debt are no more restrictive than the terms Consolidated Group permitted by clause (e) of this Agreement Section 7.01, provided that such Guarantees are subordinated on substantially the same terms as such Subordinated Indebtedness, (iii) of Indebtedness of any member of the Consolidated Group, which Guarantees are in place on the Fourth Amendment Effective Date, or (iv) of refinancings, refunding, renewals, extensions, exchanges, and (4) UHG complies with Section 10.10 below;replacements of Indebtedness listed on Schedule 7.01; provided that the Indebtedness so refinanced, refunded, renewed, extended, exchanged, or replaced was guaranteed on substantially similar terms; and
(j) Indebtedness arising from with respect to CDD Obligations. Without limiting the honoring by a bank or other financial institution of a checkforegoing, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; providedBorrower shall not, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and nor shall it permit any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time member of the incurrence thereofConsolidated Group to, (v) directly or indirectly incur or permit to exist or remain outstanding any Senior Unsecured Debt. The provisions of the Borrower shall be in compliance with foregoing sentence are not intended to restrict the financial covenants set forth in Consolidated Group from incurring or permitting to exist or remain outstanding purchase money Indebtedness permitted by Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement7.01(c).
Appears in 1 contract
Permitted Indebtedness. The Trinidad Project Borrower shall not, and shall not permit any Subsidiary to, create, create or incur or suffer to exist any IndebtednessIndebtedness except the following (collectively, except:"TRINIDAD PERMITTED PROJECT INDEBTEDNESS"):
(a) the ObligationsIndebtedness incurred pursuant to this Agreement;
(b) [intentionally deleted]Indebtedness incurred pursuant to the Guarantee by the Trinidad Guarantor;
(c) Indebtedness existing on incurred to finance in whole or in part the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;making of capital improvements to the Trinidad Project required to maintain compliance with Applicable Law; PROVIDED that the Independent Engineer shall have certified to the Bond Trustee that:
(di) Derivatives Contracts entered into in respect (x) an Officer's Certificate of an Authorized Officer of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, Trinidad Obligor certifying that such Indebtedness is (i) unsecured required to make a capital improvement to the Trinidad Project that is required in order to maintain compliance with Applica ble Law is reasonable and (iiy) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days the most effective means of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in making such capital expenditure and, if applicable, completing the ordinary course of businessTrinidad Project; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, the minimum Projected Debt Service Coverage Ratio for (A) the next four consecutive fiscal quarters, commencing with the quarter in which such Indebtedness is to be incurred, taken as one annual period, and (viB) no covenants under any such Other each subsequent fiscal year through the Final Maturity Date for the Securities, will not be less than 1.2 to 1;
(d) Indebtedness incurred pursuant to this finance in whole or in part the making of capital improvements to the Trinidad Project other than those capital improvements referenced in clause (lc) above PROVIDED that:
(i) an Authorized Officer of the Trinidad Obligor certifies to the Bond Trustee that no Default or Event of Default has occurred and is continuing or will occur as a result of the incurrence of such Indebtedness;
(ii) the Independent Engineer shall have certified to the Bond Trustee that after giving effect to the incurrence of such Indebtedness, (x) the minimum Projected Debt Service Coverage Ratio for (A) the next four consecutive fiscal quarters commencing with the quarter in which such Indebtedness is to be incurred, taken as one annual period and (B) each subsequent fiscal year through the Final Maturity Date for the Securities, will not be less than 1.5 to 1, and (y) the average Projected Debt Service Coverage Ratio for all succeeding fiscal years until the Final Maturity Date for the Securities will not be less than 1.55 to 1; and
(iii) written confirmation from each Rating Agency then rating the Securities that the incurrence of such Indebtedness will not result in a Ratings Downgrade;
(e) Indebtedness in the form of a working capital facility for the benefit of the Trinidad Project in an aggregate principal amount not to exceed $3,000,000; PROVIDED that the terms of such facility provide that the aggregate amount of all loans outstanding thereunder shall be more restrictivereduced to zero for ten (10) days in each fiscal year;
(f) To the extent such obligations would constitute Indebtedness, when taken as a whole, than those covenants contained in this Agreementobligations of the Trinidad Finance Parties under the Trinidad Project Documents;
(g) Indebtedness related to Trinidad Permitted Project Liens; and
(h) Subordinated Indebtedness from any other Trinidad Finance Party.
Appears in 1 contract
Sources: Loan Agreement (York Research Corp)
Permitted Indebtedness. The Borrower shall not, and Guarantor shall not permit any Subsidiary to, create, create or incur or suffer to exist any Indebtedness, exceptIndebtedness except the following:
(ai) the ObligationsIndebtedness incurred pursuant to this Guarantee;
(bii) [intentionally deleted];Indebtedness incurred to finance in whole or in part the making of capital improvements to the Trinidad Project required to maintain compliance with Applicable Law; PROVIDED that the Independent Engineer shall have certified to the Bond Trustee that:
(cA) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect an Officer's Certificate of an Authorized Officer of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, Trinidad Obligor certifying that such Indebtedness is (i) unsecured and (ii) subordinated required to make a capital improvement to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, Trinidad Project that is approved by Administrative Agent required in its order to maintain compliance with Applicable Law is reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days the most effective means of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in making such capital expenditure and, if applicable, completing the ordinary course of businessTrinidad Project; and
(lB) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, the minimum Projected Debt Service Coverage Ratio for (1) the next four consecutive fiscal quarters, commencing with the quarter in which such Indebtedness is to be incurred, taken as one annual period and (2) each subsequent fiscal year through the Final Maturity Date for the Securities, will not be less than 1.2 to 1;
(iii) Indebtedness incurred to finance in whole or in part the making of capital improvements to the Trinidad Project other than those capital improvements referenced in clause (ii) above PROVIDED that:
(A) an Authorized Officer of the Trinidad Obligor certifies to the Bond Trustee that no Trinidad Default or Trinidad Event of Default has occurred and is continuing or will occur as a result of the incurrence of such Indebtedness;
(B) the Independent Engineer shall have certified to the Bond Trustee that after giving effect to the incurrence of such Indebtedness, (1) the minimum Projected Debt Service Coverage Ratio for (x) the next four consecutive fiscal quarters commencing with the quarter in which such Indebtedness is to be incurred, taken as one annual period and (y) each subsequent fiscal year through the Final Maturity Date for the Securities, will not be less than 1.5 to 1 and (2) the average Projected Debt Service Coverage Ratio for all succeeding fiscal years until the Final Maturity Date for the Securities will not be less than 1.55 to 1; and
(C) written confirmation from each Rating Agency then rating the Securities that the incurrence of such Indebtedness will not result in a Ratings Downgrade;
(iv) Indebtedness in the form of a working capital facility for the benefit of the Trinidad Project in an aggregate principal amount not to exceed $3,000,000; PROVIDED that the terms of such facility provide that the aggregate amount of all loans outstanding thereunder shall be reduced to zero for ten (10) days in each fiscal year;
(v) To the extent such obligations would constitute Indebtedness, obligations of the Trinidad Finance Parties under the Trinidad Project Documents;
(vi) no covenants under Indebtedness related to Trinidad Permitted Project Liens; and
(vii) Subordinated Indebtedness from any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementother Trinidad Finance Party.
Appears in 1 contract
Sources: Guarantee (York Research Corp)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (a) the Obligations;
collectively, “Permitted Indebtedness”): (b) [intentionally deleted];
(ci) Indebtedness existing under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Agreement Closing Date which and Indebtedness is described incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate amount thereof outstanding at any time shall not exceed $2,500,000 (iv) Indebtedness in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into connection with advances made by a stockholder in respect order to cure any default of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerfinancial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations pursuant and to Section 13.25 hereof orall of Lender’s rights and in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 90 days from the due date through September 30, if such Indebtedness is evidenced by an instrument2005, is subordinated to more than 75 days from the Obligations pursuant to the terms of such instrument or a separate written agreementdue date through December 31, 2005, and more than 60 days at all times thereafter, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of any business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s business;
independent accountants shall have been reserved; and (hvi) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into borrowings incurred in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank not exceeding $100,000 individually or other financial institution of a check, draft or similar instrument inadvertently (except $500,000 in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of businessaggregate outstanding at any one time; provided, however, that such Indebtedness is extinguished within five (5) Business Days shall be on an unsecured basis, subordinated in right of incurrence;
(k) Indebtedness arising in connection with endorsement repayment and remedies to all of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee to all of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness Lender’s rights and in form and substance satisfactory to Lender. Borrower shall not exceed the Maximum Other make prepayments on any existing or future Indebtedness Amount in the aggregate at to any time; (ii) such Other Indebtedness, if secured, is secured by property Person other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect Lender or to the incurrence of such Other Indebtedness, extent specifically permitted by this Agreement or any subsequent agreement between Borrower and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this AgreementLender).
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Teltronics Inc)
Permitted Indebtedness. The Borrower “Permitted Indebtedness” shall not, and shall not permit any Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(a) the Obligations;
(b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is mean (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms indebtedness of such instrument Borrower or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising Third Party Obligor to Borrower or occurring any Subsidiary in the ordinary course of business;
, (gii) Indebtedness consisting indebtedness in favor of taxes payableSolon AG and its affiliates under the Amended and Restated Supply Agreement, dated as of April 14, 2005, as amended, between Borrower and obligations Solon AG fur Solartechnik; (iii) indebtedness in respect favor of customer depositscustomers and suppliers of the Borrower and Third Party Obligors in connection with supply and purchase agreements in an aggregate principal amount not to exceed Two Hundred Million Dollars ($200,000,000.00) at any one time and any refinancings, all to refundings, renewals or extensions thereof (without shortening the extent incurred maturity thereof or increasing the principal amount thereof); (iv) 1.25% senior convertible debentures issued in February 2007 in the ordinary course aggregate principal amount of any Borrower’s business;
Two Hundred Million Dollars (h$200,000,000.00) performance bonds, completion bonds, other bonds customarily used by any Borrower plus accrued interest thereon; (v) obligations owed to bonding companies in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district connection with obligations under bonding contracts (however titled) entered into in the ordinary course of business business, pursuant to which such bonding companies issue bonds or otherwise secure performance of Borrower and Subsidiaries for the benefit of their customers and contract counterparties; (vi) 0.75% senior convertible debentures issued in each case other than for an obligation for money borrowed);
August 2007 in the aggregate principal amount of Two Hundred Twenty-Five Million Dollars (i$225,000,000.00) the Convertible Debtplus accrued interest thereon; (vii) unsecured indebtedness to International Finance Corporation in a principal amount not to exceed $75,000,000.00, so long as provided that (1) [intentionally deleted]prior to Borrower or any Third Party Obligor entering into any definitive or binding agreement with respect to any such indebtedness, Bank shall have reviewed and approved in writing all material terms and conditions of such indebtedness, and (2) the Convertible Debt remains unsecuredloan agreement and other definitive agreements (the “IFC Documents”) are in all material respects consistent with such terms and conditions; (viii) indebtedness to Union Bank of California (“UBOC”) consisting of an unsecured term loan in a principal amount not to exceed $30,000,000.00, provided that (31) the prior to Borrower or any Third Party Obligor entering into any definitive or binding agreement with respect to any such indebtedness, Bank shall have reviewed and approved in writing all material terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement such indebtedness, and (42) UHG complies the loan agreement and other definitive agreements (the “UBOC Documents”) are in all material respects consistent with Section 10.10 below;
such terms and conditions; (jix) Indebtedness arising from additional indebtedness of Borrower and Third Party Obligors in an aggregate principal amount not to exceed Twenty Five Million Dollars ($25,000,000.00) outstanding at any one time; and (x) accrued interest on any of the honoring by a bank foregoing. For clarity, Bank and Borrower agree that Borrower’s or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds any Subsidiary’s trade payables incurred in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days business do not constitute indebtedness prohibited or restricted by the terms of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness this Section 5.3. Borrower shall not exceed agree to any amendment of or departure from any terms or conditions of the Maximum Other Indebtedness Amount in IFC Documents or the aggregate at UBOC Documents which would render the terms thereof more restrictive or onerous to Borrower or any time; (ii) such Other Indebtedness, if secured, is secured by property other Third Party Obligor than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness material terms and conditions reviewed and approved by Bank in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementwriting.
Appears in 1 contract
Sources: Credit Agreement (Sunpower Corp)
Permitted Indebtedness. The Borrower shall notIncur or permit to exist or remain outstanding any Indebtedness; provided, and shall not permit any Subsidiary tohowever, create, that the Loan Parties may incur or suffer permit to exist any or remain outstanding the following Indebtedness (“Permitted Indebtedness, except:”):
(a) Indebtedness of any Loan Party arising under this Agreement or the Obligationsother Loan Documents;
(b) [intentionally deleted]Indebtedness in respect of taxes, assessments, governmental charges, and claims for labor, materials or supplies, to the extent that payment thereof is not yet due or is being contested in good faith by appropriate proceedings, and an adequate reserve has been established therefor and is maintained in accordance with GAAP;
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto[reserved];
(d) Derivatives Contracts entered into Indebtedness incurred to finance the purchase of equipment used in respect the ordinary course of the ObligationsCore Businesses in an aggregate amount not to exceed $5,000,000, and provided that at any time outstanding and extensions, renewals, refinancings and replacements thereof; provided that (i) the principal amount of any such refinancing does not exceed the principal amount of the Indebtedness being refinanced and (ii) the material terms and provisions of any such refinancing (including redemption, prepayment, security, default and subordination provisions) are no less favorable to the applicable Loan Party and the Lenders than the Indebtedness being refinanced (other than the interest rate and fees under such refinanced Indebtedness which may be at a rate consistent with the rates and fees then prevailing in the market for similar Indebtedness for borrowers engaged in the Core Businesses and with similar credit risks as Borrower);
(e) Indebtedness of a Borrower owed any Loan Party arising under the Indentures in an aggregate principal amount not to another Borrowerexceed $395,133,000 and extensions, renewals, refinancings and replacements thereof; providedprovided that (i) the principal amount of any such refinancing does not exceed the principal amount of the Indebtedness being refinanced, however, that (ii) the maturity date of such Indebtedness is (i) unsecured extended beyond the first anniversary of the Maturity Date and (iiiii) subordinated the material terms and provisions of any such refinancing (including redemption, prepayment, security, default and subordination provisions) are no less favorable to the Obligations pursuant to Section 13.25 hereof or, if applicable Loan Party and the Lenders than the Indebtedness being refinanced (other than the interest rate and fees under such refinanced Indebtedness is evidenced by an instrument, is subordinated to which may be at a rate consistent with the Obligations pursuant to rates and fees then prevailing in the terms of such instrument or a separate written agreement, market for similar Indebtedness for borrowers engaged in each case, that is approved by Administrative Agent in its reasonable discretionthe Core Businesses and with similar credit risks as Borrower);
(f) trade accounts payable and accrued expenses arising or occurring Secured Debt in an aggregate amount not to exceed at any time the ordinary course of businessMaximum Permitted Secured Indebtedness;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent MF Owner or CF Owner incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies accordance with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement7.12 hereof.
Appears in 1 contract
Sources: Senior Secured Term Loan Agreement (William Lyon Homes)
Permitted Indebtedness. The Borrower shall notNo Subsidiary will incur, and shall not create or permit any Subsidiary to, create, incur or suffer to exist indebtedness to any Indebtedness, except:
(a) person or entity other than Pioneer and the Obligations;
(b) [intentionally deleted];
(c) Indebtedness existing on Banks except only the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent following permitted indebtedness incurred in the ordinary course of any Borrowereach of such Subsidiary’s business;
respective business (hthe “Permitted Indebtedness”) performance bonds(i) current trade payables not more than ninety (90) days past due, completion bonds(ii) lease obligations for real estate, other bonds customarily used by any Borrower in its trade or businessfixtures and equipment, surety and appeal bonds, guarantees of performance(iii) purchase money obligations for capital expenditures, and guarantees (iv) Lending License Bonds permitted under this Agreement. The aggregate amount of Indebtedness of a special district entered into all such Subsidiary Permitted Indebtedness, excluding real property lease obligations for each Subsidiary, shall not exceed Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate for all Subsidiaries at any time, provided, however, that the Lending License Bonds permitted hereunder shall not be included in the $250,000 aggregate limitation for Subsidiaries. Pioneer will not incur, create or permit to exist indebtedness to any Person other than the Banks except only the following permitted indebtedness incurred in the ordinary course of Pioneer’s business (in each case other than for an obligation for money borrowedthe “Pioneer Permitted Indebtedness”);
(i) the Convertible Debt, so long as current trade payables not more than ninety (190) [intentionally deleted]days past due, (2ii) the Convertible Debt remains unsecuredlease obligations for real estate, fixtures and equipment, (3iii) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement purchase money obligations for capital expenditures, and (4iv) UHG complies with Section 10.10 below;
Lending License Bonds permitted under this Agreement. The aggregate amount of all such Pioneer Permitted Indebtedness, excluding real property lease obligations, shall not exceed Five Hundred Thousand Dollars (j$500,000) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; aggregate for Pioneer at any time,” provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;the Lending License Bonds permitted hereunder shall not be included in the $500,000 aggregate limitation for Pioneer.
(k) Indebtedness arising in connection with endorsement 8) Section 7.4 “Redemption/Guarantees/Advances/Issuance of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, Stock/Dividend” shall be no greater than two (2) times the amount of such Other Indebtedness deleted in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower its entirety and shall be in compliance replaced with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.following:
Appears in 1 contract
Sources: Secured Senior Lending Agreement (Pioneer Financial Services Inc)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(a) the Obligations;
Directly or indirectly, Incur any Indebtedness (bincluding Acquired Indebtedness) [intentionally deleted];
(c) other than Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness Obligations under this Agreement and the other Loan Documents, or issue any shares of a Borrower owed Disqualified Stock and Holdings will not permit any of its Restricted Subsidiaries to another Borrowerissue any shares of Preferred Stock; provided, however, that Holdings and any Restricted Subsidiary may Incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and any Restricted Subsidiary may issue shares of Preferred Stock, in each case if the Term LoanFixed Asset Fixed Charge Coverage Ratio of HoldingsParent and its Restricted Subsidiaries on a consolidated basis for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is Incurred or such Disqualified Stock or Preferred Stock is issued would have at least 2.00 to 1.00 determined on a pro forma basis (iincluding a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been Incurred, or the Disqualified Stock or Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of such four-quarter period; provided, further, that the aggregate amount of Indebtedness (including Acquired Indebtedness) unsecured that may be Incurred and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations Disqualified Stock or Preferred Stock that may be issued pursuant to the terms of such instrument or a separate written agreement, in each case, foregoing by Restricted Subsidiaries that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness U.S. Domiciled Loan Parties shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; greater of (iix) such Other Indebtedness, if secured, is secured by property other than the Collateral, $125,000,000130,000,000 and (iiiy) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value 5.0% of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined Consolidated Total Assets at the time of the incurrence thereofIncurrence, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the any one time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementoutstanding.
Appears in 1 contract
Permitted Indebtedness. The Borrower shall notBorrow money, and shall not permit any Subsidiary to, issue evidences of indebtedness for borrowed money or create, incur assume, guarantee, become contingently liable for or suffer to exist any Indebtedness, except:
(a) the Obligations;
(b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date which Indebtedness is described indebtedness for borrowed money in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated addition to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt Notes (including, for the avoidance of doubtwithout limitation, as indebtedness Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplicationObligations) except (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate but at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted all times subject to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 Sections 4(n), 4(o) and 4(p) hereof):
(i) existing indebtedness of the Company and its Subsidiaries set forth in SCHEDULE 5(a) hereto, provided that all such indebtedness shall be repaid in accordance with its terms with extensions, renewals or other modifications (such indebtedness, upon such extension, renewal or other modification, shall constitute Current Debt or Funded Debt otherwise permitted by this paragraph 5(a)) and provided further that all such extensions, renewals or other modifications shall be subject to paragraph 5(h);
(ii) Funded Debt of the Company or its Subsidiaries incurred after the Closing Date (A) if, after giving effect thereto, the ratio of Consolidated Income Available for Fixed Charges to pro forma Consolidated Fixed Charges during the succeeding 12-month period is at the time of least 2.5:1 and immediately (B) after giving effect to additional Funded Debt of any Subsidiary, the incurrence aggregate Funded Debt of all Subsidiaries does not exceed 10% of Consolidated Tangible Net Worth;
(iii) Current Debt of the Company or its Subsidiaries for money borrowed from banks, trust companies, insurance companies and similar financial institutions, or commercial paper issued by the Company, which indebtedness is unsecured; provided that for a period of sixty consecutive days in each fiscal year the Company shall reduce such Other IndebtednessCurrent Debt to an amount outstanding which during such sixty day period, and could have been incurred as Funded Debt pursuant to paragraph 5(a)(ii);
(iv) other indebtedness that does not have an aggregate outstanding principal amount greater than $1,000,000 at any time;
(v) Funded Debt of the Company's Subsidiary, AUTOTROL, S.A., Le Mee Sur Seine, France, not exceeding $3,000,000 in outstanding principal amount at any time; and
(vi) no covenants under any such Other Indebtedness incurred pursuant indebtedness of a Subsidiary to this clause (l) shall be more restrictivea wholly owned Subsidiary or, when taken as a wholesubject to paragraph 5(b)(viii), than those covenants contained in this Agreementto the Company.
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not, and Issuer shall not permit any Subsidiary to, create, create or incur or suffer to exist or cause to be created, incurred or suffered to exist any Indebtedness except the following (collectively, "Permitted Issuer Indebtedness, except:"):
(a) Indebtedness incurred pursuant to this Indenture and the ObligationsInitial Bonds;
(b) [intentionally deleted]Indebtedness incurred pursuant to Additional Bonds issued in accordance with the provisions of Section 2.3;
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);provided that:
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions an Authorized Officer of the Convertible Debt are no more restrictive than Issuer certifies to the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except Bond Trustee in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, writing that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists has occurred and is continuing or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately will occur after giving effect to the incurrence of such Other Indebtedness and the application of the net proceeds thereof;
(ii) an Authorized Officer of the Issuer certifies to the Bond Trustee in writing that after giving effect to the incurrence of such Indebtedness, and the minimum annual Projected Debt Service Coverage Ratio for each fiscal year through the Final Maturity Date for the Bonds (vistarting in the fiscal year in which the Indebtedness is incurred) no covenants under with the longest maturity, will not be less than 1.5 to 1; and
(iii) written confirmation from each Rating Agency then rating the Bonds that the incurrence of such Indebtedness will not result in a Rating Downgrade.
(d) Indebtedness related to Permitted Liens;
(e) Indebtedness represented by interest rate protection agreements with respect to other Permitted Issuer Indebtedness;
(f) Indebtedness in the form of a working capital facility in an aggregate principal amount not to exceed, at any such Other one time outstanding, (i) $40,000,000 (Escalated)plus (ii) upon the acquisition of an Additional Guarantor or additional district energy assets, 5% of the Indebtedness incurred pursuant to this clause (l) by the Issuer in connection with such acquisition; provided that the outstanding principal amount of such Indebtedness shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.reduced to zero for five (5) days each year;
(g) Indebtedness owed to the Subsidiary Guarantor or any Additional Guarantor; and
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not, Company will not and shall will not permit any Subsidiary to, of its Subsidiaries to create, incur incur, assume or suffer to exist any Indebtedness, except:
Indebtedness for borrowed money after the date of this Agreement except for (ai) the Obligations;
; (bii) [intentionally deleted];
the Senior Debt; (c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(eiii) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations Company pursuant to the terms Senior Subordinated Note Purchase Agreement; (iv) Indebtedness of such instrument or a separate written agreementany Subsidiary of the Company to the Company; (v) accounts payable to trade creditors and current operating expenses (other than for Funded Debt) which are not aged more than 30 days from the due date, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of any Borrower’s business;
business and paid within such time period, unless the same are being actively contested in good faith and by appropriate and lawful proceedings and the Company or such Subsidiary shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by the Company or such Subsidiary and its independent accountants; (hvi) performance bonds, completion bonds, obligations to pay Rentals permitted by Section 7.17; (vii) Permitted Purchase Money Indebtedness; (viii) contingent liabilities arising out of endorsements of checks and other bonds customarily used by any Borrower in its trade negotiable instruments for deposit or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds collection in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(kix) Indebtedness arising under Capitalized Leases listed on Schedule 7.2; (x) Indebtedness incurred in connection with endorsement performance bonds, workmen’s compensation bonds or the like; (xi) Indebtedness under the leases of instruments for deposit the Company’s manufacturing plants at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ and at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇▇; (xii) Indebtedness under the leases of real property at ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇; (xiii) Indebtedness under the Sale and Leaseback Documents; (xiv) Indebtedness incurred pursuant to the ETI Subordinated Note; and (xv) Indebtedness not included in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: paragraphs (i) the commitment amount of such Other Indebtedness shall through (xiv) above which does not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time sum of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement$1,000,000.
Appears in 1 contract
Sources: Junior Subordinated Note Purchase Agreement (Pw Eagle Inc)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (a) the Obligations;
collectively, “Permitted Indebtedness”): (b) [intentionally deleted];
(ci) Indebtedness existing under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after April 30, 2004 and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the Agreement Date which aggregate amount of such Capitalized Lease Obligations and purchase money indebtedness outstanding at any time shall not exceed $150,000, (iv) Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into connection with advances made by a stockholder in respect order to cure any default of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerfinancial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations and to all of Lender’s rights pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the Obligations pursuant to billing date or more than 30 days from the terms of such instrument or a separate written agreementdue date, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of any business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s business;
independent accountants shall have been reserved; (hvi) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into borrowings incurred in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank not exceeding $10,000 individually 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; aggregate outstanding at any one time, provided, however, that such Indebtedness is extinguished within five shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (5vii) Business Days of incurrence;
Permitted Subordinated Debt or Indebtedness to US Bioservices Corporation evidenced by the US Bio Note as permitted under the Joint Venture Dissolution Consent and (kviii) Indebtedness arising in connection with endorsement consisting of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Deferred Purchase Price Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not to exceed the Maximum Other Indebtedness Amount in the aggregate $250,000 outstanding at any time; (ii) provided, however, that the deposit of monies in escrow or the establishment of holdbacks for purchase price adjustments shall not be deemed to constitute security for such Other Indebtedness, if secured, is secured by property Indebtedness and the amount thereof shall not be included in the computation of the foregoing $250,000 allowance. Borrower shall not make prepayments on any existing or future Indebtedness in excess of $10,000 to any Person other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect Lender or to the incurrence of such Other Indebtedness, extent specifically permitted by this Agreement or any subsequent agreement between Borrower and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this AgreementLender.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (NationsHealth, Inc.)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (a) the Obligations;
collectively, "Permitted Indebtedness"): (b) [intentionally deleted];
(ci) Indebtedness existing under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Agreement Closing ------------ Date which and Indebtedness is described incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate amount thereof outstanding at any -------------- time shall not exceed $500,000, (iv) Indebtedness in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into connection with advances made by a stockholder in respect order to cure any default of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerfinancial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an ------- -------- ------- unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations pursuant and to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated all of Lender's rights and in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the Obligations pursuant to billing date or more than 30 days from the terms of such instrument or a separate written agreementdue date (excluding accrued investigator fees), in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of any business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s business;
's independent accountants shall have been reserved; and (hvi) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into incurred in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank not exceeding $50,000 individually 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 businessaggregate outstanding at any one time; provided, -------- however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.on an unsecured basis. -------
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Americas Power Partners Inc)
Permitted Indebtedness. The Neither the Borrower shall not, and shall not permit nor any Subsidiary to, will create, incur or suffer to exist any Indebtedness, except, without duplication and without duplication as to the Borrower and Subsidiaries:
(a) the The Obligations;
(b) [intentionally deleted];
(c) Unsecured Indebtedness existing on the Agreement Date which Indebtedness is and described in on Schedule 7.1(g) attached hereto;
(dc) Derivatives Contracts entered into in respect of the Obligations;
(ed) Indebtedness of a the Borrower owed to another Borrowera Subsidiary Guarantor, Indebtedness of a Subsidiary Guarantor owed to the Borrower and Indebtedness of a Subsidiary Guarantor owed to a Subsidiary Guarantor; provided, however, that such (a) any Indebtedness of the Borrower owed to a Subsidiary Guarantor is (i) unsecured and (ii) subordinated to the Borrower’s Obligations pursuant hereunder in a manner satisfactory to Section 13.25 hereof orthe Administrative Agent, if and (b) upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness is evidenced by an instrument, is subordinated being owed to any Person other than the Obligations pursuant to the terms of such instrument Borrower or a separate written agreementSubsidiary Guarantor, in each casethe Borrower or such Subsidiary Guarantor hereunder, that is approved as applicable, shall be deemed to have incurred Indebtedness not permitted by Administrative Agent in its reasonable discretionthis clause (d);
(fe) trade Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(f) Indebtedness with respect to Letters of Credit;
(g) Indebtedness consisting of taxes Taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of the Borrower’s or any BorrowerSubsidiary’s business;
(h) performance Performance bonds, completion bonds, other bonds customarily used by any the Borrower in its trade or business, surety and appeal bonds, guarantees of performance, performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) Indebtedness arising under a guarantee of indebtedness of any Joint Venture (provided that such guarantee shall be deemed to be an investment in such Joint Venture and subject to the Convertible Debt, so long as limitations in clause (1e) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms definition of this Agreement Permitted Investments and (4) UHG complies with Section 10.10 below10.1(e));
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and;
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, i) Capitalized Lease Obligations and (ii) Non-Recourse Indebtedness secured by purchase money Liens on any Guarantee Property (other than any Borrowing Base Property) hereafter acquired or the assumption of any Lien on Property (other than any Borrowing Base Property) existing at the time of such Indebtedness without duplicationacquisition (and not created in contemplation of such acquisition), provided that (1) (collectively, the “Other Indebtedness”); provided that: amount outstanding under clauses (i) the commitment amount of such Other Indebtedness and (ii) shall not exceed the Maximum Other Indebtedness Amount $500,000 in the aggregate at any time; time and (2) with respect to Indebtedness incurred under clause (ii) above, (X) any Property securing such Indebtedness shall have been acquired by the Borrower or any Subsidiary in the ordinary course of its respective business and the Lien on any such Property shall attach to such asset concurrently or within ninety (90) days after the acquisition thereof, (Y) the amount of such Indebtedness shall not exceed such purchase price or cost of any Property securing such Indebtedness, and (Z) each Lien shall attach only to the Property so acquired;
(m) The Convertible Notes, provided that (i) the outstanding principal amount of such Indebtedness does not exceed $69,962,000 in the aggregate at any time and (ii) such Indebtedness is unsecuredIntentionally omitted;
(n) Other Unsecured Indebtedness, if securedprovided that (A) after giving effect thereto, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be is in compliance with the financial covenants set forth in Section 10.1 at 10.1, (B) the time of and immediately after giving effect to the incurrence maturity date of such Other IndebtednessIndebtedness is at least one (1) year after the Maturity Date, and (viC) any covenants contained in the documents evidencing such Indebtedness must be no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those the covenants contained in this Agreement., as determined by the Administrative Agent in its sole discretion, and (D) such Indebtedness shall not contain any cross default to this Agreement;
(o) CDD Debt;
(p) Permitted Deferred Purchase Price Debt, provided that the outstanding principal amount of such Indebtedness does not exceed $25,000,000 at any time; and
(q) Senior Notes Indebtedness, provided that (A) after giving pro forma effect to the issuance of such Senior Notes Indebtedness and the use of proceeds therefrom as of the end of the most recently ended fiscal quarter, the Borrower is in compliance with the financial covenants set forth in Section 10.1, (B) the maturity date of such Senior Notes Indebtedness is at least ninety-one (91) days after the Maturity Date, (C) such Senior Notes Indebtedness and Senior Notes Indenture do not contain any financial maintenance covenants, and (D) the Borrower has delivered to the Administrative Agent a certificate of a Responsible Officer certifying to the compliance with clauses (A), (B), and (C) above, and (E) concurrently with the issuance thereof, the Borrower shall have delivered an opinion of counsel (subject to customary exceptions, qualifications and limitations) to the Borrower and the Guarantors, who may be an employee of or counsel to the Borrower and the Guarantors, addressed to the Administrative Agent and the Lenders, covering (i)to the effect that the issuance of such Senior Notes Indebtedness does not conflict with or violate the terms of this Agreement, the Notes, or the Subsidiary Guaranties, the Convertible Notes or the Convertible Notes Indenture and (ii) any supplemental indenture entered into in connection with the issuance of such Senior Notes Indebtedness evidencing an amendment of, or supplement to, the Convertible Notes Indenture has been duly authorized, executed and delivered by the Borrower and is valid, binding and enforceable against the Borrower..
Appears in 1 contract
Sources: Credit Agreement (LGI Homes, Inc.)
Permitted Indebtedness. The No Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any IndebtednessIndebtedness for Borrowed Money, except:
except the following (collectively, "PERMITTED INDEBTEDNESS"): (a) Indebtedness under the Obligations;
Loan Documents; (b) [intentionally deleted];
guaranty Indebtedness under the Mezzanine Loan; (c) any Indebtedness existing set forth on Schedule 7.2 and any Indebtedness which refinances or replaces such Indebtedness to the Agreement Date extent such refinanced Indebtedness does not increase the total principal amount thereof, extend the maturity date, accelerate the amortization or is otherwise on terms and conditions which Indebtedness is described in Schedule 7.1(g) hereto;
are not materially more onerous to the Borrowers ("PERMITTED REFINANCED INDEBTEDNESS"); (d) Derivatives Contracts entered into (i) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v) and any Permitted Refinanced Indebtedness with respect thereto, provided that the aggregate amount thereof outstanding at any time shall not exceed $5,000,000; (ii) Indebtedness on a non-recourse (other than customary carve-outs for non-recourse financings) basis to any assets of any Borrower or any Guarantor other than the asset or assets that are collateral securing such Indebtedness and which is secured by a Lien permitted pursuant to Section 7.3(v) and any Permitted Refinancing Indebtedness with respect thereto and (iii) Indebtedness incurred in respect of connection with the Obligations;
Eureka Transaction; provided that the aggregate amount outstanding at any time under 7.2(d)(ii) plus 7.2(d)(iii) shall not exceed $30,000,000; (e) Indebtedness in connection with advances made by a stockholder in order to cure any default of a Borrower owed to another Borrowerthe financial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations pursuant and to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated all of Agent's rights and in form and substance reasonably satisfactory to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
Agent; (f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent borrowings incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade business and not exceeding $10,000,000 individually or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of businessaggregate outstanding at any one time; provided, however, that such Indebtedness is extinguished within five shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Agent's rights and in form and substance satisfactory to Agent; (5) Business Days of incurrence;
(kg) Indebtedness from time to time owing to any Borrower; (h) Indebtedness of any Borrower arising in connection with endorsement out of instruments for deposit an Interest Rate Agreement entered into in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) Subordinated Debt, provided, however, the commitment aggregate principal amount of such Other Subordinated Debt (I) evidenced by the Indenture and the Indenture Notes and any Permitted Refinanced Indebtedness with respect thereto shall not exceed $106,761,608 and (II) evidenced by the Maximum Other Bergen Note and any Permitted Refinanced Indebtedness Amount in the aggregate at any timewith respect thereto shall not exceed $1,237,325.46, (j) Indebtedness constituting Priority Claims; (iik) such Other Indebtedness, if secured, is secured by property other than Indebtedness in respect of insurance premiums payable to the Collateral, Insurance Subsidiary in an aggregate amount not to exceed $10,000,000 and (iiik) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other additional unsecured Indebtedness in the aggregateordinary course of business in an aggregate amount not to exceed $2,000,000. Notwithstanding anything in this Section 7.2 or this Agreement to the contrary, determined at the time aggregate amount of Indebtedness for Borrowed Money of Borrowers on a Consolidated Basis, exclusive of the incurrence thereofObligations and the "Obligations" as such term is defined in the Revolving Loan B Agreement, (v) shall not exceed $255,000,000 in the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementaggregate.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Skilled Healthcare Group Inc)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, borrow money, issue any evidences of indebtedness, or create, incur assume, guarantee, become contingently liable for or suffer or permit to exist any Indebtednessindebtedness of the Borrower or any Subsidiary in addition to indebtedness to the Bank (including, without limitation, as indebtedness Capitalized Lease Obligations), except:
(a) Unsecured Funded Debt of the Obligations;Borrower to Prudential in a principal amount not exceeding $10,000,000.00 before the BERS Acquisition and in a principal amount not exceeding $14,000,000.00 after the BERS Acquisition, provided that all such Funded Debt shall be repaid in accordance with its terms and schedule, shall not be prepaid, and shall not be extended, renewed, or otherwise modified:
(b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect Unsecured trade debt of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; providedand the Subsidiaries, howeverother than Adjusted Funded Debt, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument incurred or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(gc) Indebtedness consisting Unsecured Current Debt of taxes payablethe Borrower to banks and other institutional lenders, and obligations in respect provided that the aggregate amount of customer deposits, all to the extent incurred in the ordinary course of such Current debt at any Borrower’s businesstime outstanding shall not exceed $2,000,000.00;
(hd) performance bondsFor a period of 90 days after the BERS Acquisition, completion bondsindebtedness of BERS to Centura Bank in an aggregate amount not exceeding $1,858,973.00, other bonds customarily used by any Borrower in its trade provided that such indebtedness shall not be extended, renewed or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed)otherwise modified;
(ie) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no One or more restrictive than the terms of this Agreement and (4) UHG complies with capital leases described in Section 10.10 below;5.07(d):
(jf) Indebtedness arising from Capital leases between BERS and ▇▇▇▇▇▇ Laboratories Hospital Products Division covering equipment subleased by BERS to ▇▇▇ Hospital, and all amendments, extensions, renewals and replacements thereof, provided the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment aggregate amount of BERS' obligations under such Other Indebtedness capital leases shall not exceed the Maximum Other Indebtedness Amount in the aggregate $500,000.00 at any timetime outstanding; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.and
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not, and its Subsidiaries shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (a) the Obligations;
collectively, “Permitted Indebtedness”): (b) [intentionally deleted];
(ci) Indebtedness existing under the Loan Documents, (ii) any Indebtedness set forth on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect 7.2 of the Obligations;
Disclosure Letter, (eiii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v) of the Disclosure Letter, provided that the aggregate amount thereof outstanding at any time shall not exceed $250,000 without the prior written consent of Lender, (iv) Indebtedness in connection with advances made by a stockholder in order to cure any default of a Borrower owed to another Borrowerthe financial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations pursuant and to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated all of Lender’s rights and in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the Obligations pursuant to billing date or more than 60 days from the terms of such instrument or a separate written agreementdue date, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of any Borrower’s business;
(h) performance bondsbusiness and paid within such time period, completion bonds, other bonds customarily used unless the same are being contested in good faith and by any Borrower in its trade or business, surety appropriate and appeal bonds, guarantees of performance, lawful proceedings and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtednessreserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and have been reserved; (vi) no covenants obligations under reimbursement agreements (in form reasonably acceptable to Lender) with banks that issue letters of credit for the Borrower’s account not to exceed $1,000,000 at any time outstanding secured only by Liens in cash pledged to such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.banks; ;and
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Access Worldwide Communications Inc)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (a) the Obligations;
collectively, "Permitted Indebtedness"): (b) [intentionally deleted];
(ci) Indebtedness existing under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Agreement Closing Date which and Indebtedness is described incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate amount thereof outstanding at any time shall not exceed $2,500,000, (iv) Indebtedness in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into connection with advances made by a stockholder in respect order to cure any default of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerfinancial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations pursuant and to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated all of Lender's rights and in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the Obligations pursuant to the terms of such instrument or a separate written agreementbilling date, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of any business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s business;
's independent accountants shall have been reserved; (hvi) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into borrowings incurred in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank not exceeding $25,000 individually 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 businessaggregate outstanding at any one time; provided, however, that such Indebtedness is extinguished within five (5) Business Days shall be on an unsecured basis, subordinated in right of incurrence;
(k) Indebtedness arising in connection with endorsement repayment and remedies to all of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and to all of Lender's rights and in form and substance satisfactory to Lender; and (vii) Permitted Subordinated Debt which can be repaid with respect to any Guarantee of such Indebtedness without duplication) (collectivelyForeign Subsidiary, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness unless prohibited by this Agreement or any other Loan Document. Borrower shall not exceed the Maximum Other make prepayments on any existing or future Indebtedness Amount in the aggregate at to any time; (ii) such Other Indebtedness, if secured, is secured by property Person other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect Lender or to the incurrence of such Other Indebtedness, extent specifically permitted by this Agreement or any subsequent agreement between Borrower and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this AgreementLender).
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Synavant Inc)
Permitted Indebtedness. The Borrower shall notIncur or permit to exist or remain outstanding any Indebtedness; provided, and shall not permit any Subsidiary tohowever, create, that the Loan Parties may incur or suffer permit to exist any or remain outstanding the following Indebtedness (“Permitted Indebtedness, except:”):
(a) Indebtedness of any Loan Party arising under this Agreement or the Obligationsother Loan Documents;
(b) [intentionally deleted]Indebtedness in respect of taxes, assessments, governmental charges, and claims for labor, materials or supplies, to the extent that payment thereof is not yet due or is being contested in good faith by appropriate proceedings, and an adequate reserve has been established therefor and is maintained in accordance with GAAP;
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) heretoExisting Secured Indebtedness;
(d) Derivatives Contracts entered into Indebtedness of any Loan Party incurred to finance the purchase of equipment used in respect the ordinary course of the ObligationsCore Businesses in an aggregate amount not to exceed $5,000,000;
(e) Indebtedness of any Loan Party arising under the Indenture in an aggregate principal amount not to exceed $75,000,000 plus any additional principal amount resulting from the payment in-kind of interest thereon and extensions, renewals, refinancings and replacements thereof; provided that (i) the principal amount of any such refinancing does not exceed $75,000,000 plus any such payment-in-kind interest plus any accrued interest, premiums thereon and fees and expenses incurred in connection with such extension, renewal, refinancing or replacement, (ii) the maturity date of such Indebtedness is extended beyond the first anniversary of the Maturity Date and (iii) the material terms and provisions of any such refinancing (including redemption, prepayment, security, default and subordination provisions) are no less favorable to the applicable Loan Party and the Lenders than the Indebtedness being refinanced (other than the interest rate and fees under such refinanced Indebtedness which may be at a Borrower owed rate consistent with the rates and fees then prevailing in the market for similar Indebtedness for borrowers engaged in the Core Businesses and with similar credit risks as Borrower);
(f) Other Indebtedness that satisfies each of the following conditions (“Other Permitted Indebtedness”):
(i) Subject to another BorrowerSection 7.01(f) (iii)-(vii) and the terms of the Rights of First Refusal and Acquisition Indebtedness;
(ii) Subject to Section 7.01(f) (iii)-(vii), Permitted Construction Indebtedness;
(iii) All Acquisition Indebtedness and Permitted Construction Indebtedness shall not exceed in the aggregate at any one time outstanding $100 million of principal amount (including interest that is payable in kind and added to the principal amount thereof), which $100 million aggregate limit shall be reduced dollar-for-dollar by the outstanding principal amount (including interest that is payable in kind and added to the principal amount thereof) on any outstanding Existing Secured Indebtedness and the unsecured Indebtedness referred to in Section 7.01(g) below; provided, however, Acquisition Indebtedness constituting Non-Recourse Debt shall not count against such $100 million limitation;
(iv) All Acquisition Indebtedness shall not exceed in the aggregate at any one time outstanding $20 million of principal amount (including interest that is payable in kind and added to the principal amount thereof); provided, however, Acquisition Indebtedness constituting Non-Recourse Debt shall not count against such $20 million limitation. For clarification purposes, the outstanding principal balance (including interest that is payable in kind and added to the principal amount thereof) of Acquisition Indebtedness referred to in this Section 7.01(f)(iv) shall be included for purposes of applying the limitations referred to in this Section 7.01(f)(iv) and 7.01(f)(iii);
(v) All Acquisition Indebtedness and Permitted Construction Indebtedness shall be on terms and conditions reasonably satisfactory to the Majority Lenders (including notice and cure rights for the benefit of the Administrative Agent) and shall be made by an lender that is not an Affiliate of any Loan Party or any Joint Venture;
(vi) Acquisition Indebtedness and Permitted Construction Indebtedness shall be permitted only if (x) at the time of each closing and funding of any such Indebtedness, no Default or Event of Default shall have occurred and be continuing, and no Default or Event of Default shall occur as a result of the incurrence of such Indebtedness is (i) unsecured or the release of any Liens in connection therewith and (iiy) subordinated if Borrower first demonstrates to the Obligations Administrative Agent’s reasonable satisfaction compliance with the Borrowing Base test measured both before and after (on a pro forma basis) the incurrence of such Indebtedness and the release to the satisfaction of Administrative Agent; and
(vii) The Liens securing the Acquisition Indebtedness are permitted pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business7.02(i);
(g) Indebtedness consisting of taxes payableany Loan Party that is unsecured in an aggregate amount not to exceed $50,000,000 to be used by the Borrower or the Parent for general working capital purposes, provided that any such Indebtedness incurred by the Borrower or the Parent under this clause (g) shall reduce the amount of Indebtedness available to be borrowed under clause 7.01(f) on a dollar for dollar basis and obligations in respect of customer deposits, all shall be on terms reasonably satisfactory to the extent incurred in the ordinary course of any Borrower’s business;Majority Lenders; and
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this AgreementThe ▇▇▇▇▇▇▇▇ Loan.
Appears in 1 contract
Sources: Senior Secured Term Loan Agreement (William Lyon Homes)
Permitted Indebtedness. The Borrower For purposes of determining compliance with this Section 6.1, (x) the outstanding principal amount of any Indebtedness shall notbe counted only once such that (without limitation) any obligation arising under any Guarantees or obligations with respect to letters of credit supporting Indebtedness otherwise included in the determination of such particular amount shall not be included and (y) except as provided above, in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described above, including categories of Permitted Indebtedness and Section 6.1(a), Borrower, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Indebtedness and such Indebtedness need not be permitted solely by reference to one provision of this Section 6.1 but may be permitted in part by one such provision and in part by one or more other provisions of this Section 6.1. Notwithstanding anything to this Section 6.1 or in the definition of “Permitted Indebtedness”, no Indebtedness shall not permit be Incurred under any Subsidiary to, create, incur ABL Credit Agreement or suffer MSD Term Loan Agreement except pursuant to exist any Indebtedness, except:
and in compliance with clause (a) or (n)(ii) of the Obligations;
(b) [intentionally deleted];
(c) definition of “Permitted Indebtedness”,. The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Indebtedness existing in the forms of additional Indebtedness or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms and changes in the amount outstanding due solely to the result of fluctuations in the exchange rates of currencies will not be deemed to be an Incurrence of Indebtedness or issuance of Capital Interests for purposes of this Section 6.1. Notwithstanding anything to the contrary herein, the maximum amount of Indebtedness that may be outstanding pursuant to this Section 6.1 will not be deemed exceeded due to the results of fluctuations in exchange rates or currency values. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Agreement Date which Incurrence of Indebtedness, the U.S. dollar equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred. None of Borrower and Guarantors will Incur any Indebtedness that pursuant to its terms is described subordinate or junior in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect right of the Obligations;
(e) payment to any Indebtedness of a Borrower owed to another Borrower; provided, however, that unless such Indebtedness is (i) unsecured and (ii) subordinated in right of payment to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to at least the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”)same extent; provided that: (i) the commitment amount that Indebtedness will not be considered subordinate or junior in right of such Other payment to any other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is solely by virtue of being unsecured or secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no a greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance or lesser extent or with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementgreater or lower priority.
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (acollectively, “Permitted Indebtedness”): (i) Indebtedness under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) the Obligations;
incurrence by Borrower of additional unsecured Indebtedness and letters of credit in an aggregate principal amount at any one time outstanding under this clause (biii) [intentionally deleted];
(cwith letters of credit being deemed to have a principal amount equal to the maximum potential liability of Borrower thereunder) not to exceed $10,000,000 plus the aggregate amount of all repayments, optional or mandatory, of the principal of any Indebtedness set forth on Schedule 7.2 (other than repayments that are concurrently reborrowed), (iv) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness that is secured by purchase money Liens in connection with the purchase by Borrower of equipment in the normal course of business, provided that the aggregate amount thereof outstanding at any time shall not exceed $1,000,000, (v) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into connection with advances made by a stockholder in respect order to cure any default of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerfinancial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations pursuant and to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated all of Lender’s rights and in form and substance satisfactory to Lender; (vi) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than one hundred twenty (120) calendar days from the Obligations pursuant to billing date or more than thirty (30) days from the terms of such instrument or a separate written agreementdue date, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of any Borrower’s business;
(h) performance bondsbusiness and paid within such time period, completion bonds, other bonds customarily used unless the same are being contested in good faith and by any Borrower in its trade or business, surety appropriate and appeal bonds, guarantees of performance, lawful proceedings and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtednessreserves, if any, with respect thereto as are required by GAAP shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, have been reserved; and (vivii) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this AgreementPermitted Refinancing Indebtedness.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Women First Healthcare Inc)
Permitted Indebtedness. The Neither the Borrower shall not, and shall not permit nor any Subsidiary to, will create, incur or suffer to exist any Indebtedness, except, without duplication and without duplication as to the Borrower and Subsidiaries:
(a) the The Obligations;
(b) [intentionally deleted];
(c) Unsecured Indebtedness existing on the Agreement Date which Indebtedness is and described in on Schedule 7.1(g) attached hereto;
(dc) Derivatives Contracts entered into in respect of the Obligations;
(ed) Indebtedness of a the Borrower owed to another Borrowera Subsidiary Guarantor, Indebtedness of a Subsidiary Guarantor owed to the Borrower and Indebtedness of a Subsidiary Guarantor owed to a Subsidiary Guarantor; provided, however, that such (a) any Indebtedness of the Borrower owed to a Subsidiary Guarantor is (i) unsecured and (ii) subordinated to the Borrower’s Obligations pursuant hereunder in a manner satisfactory to Section 13.25 hereof orthe Administrative Agent, if and (b) upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness is evidenced by an instrument, is subordinated being owed to any Person other than the Obligations pursuant to the terms of such instrument Borrower or a separate written agreementSubsidiary Guarantor, in each casethe Borrower or such Subsidiary Guarantor hereunder, that is approved as applicable, shall be deemed to have incurred Indebtedness not permitted by Administrative Agent in its reasonable discretionthis clause (d);
(fe) trade Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(f) Indebtedness with respect to Letters of Credit;
(g) Indebtedness consisting of taxes Taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of the Borrower’s or any BorrowerSubsidiary’s business;
(h) performance Performance bonds, completion bonds, other bonds customarily used by any the Borrower in its trade or business, surety and appeal bonds, guarantees of performance, performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) Indebtedness arising under a guarantee of indebtedness of any Joint Venture (provided that such guarantee shall be deemed to be an investment in such Joint Venture and subject to the Convertible Debt, so long as limitations in clause (1e) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms definition of this Agreement Permitted Investments and (4) UHG complies with Section 10.10 below10.1(e));
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and;
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, i) Capitalized Lease Obligations and (ii) Non-Recourse Indebtedness secured by purchase money Liens on any Guarantee Property (other than any Borrowing Base Property) hereafter acquired or the assumption of any Lien on Property (other than any Borrowing Base Property) existing at the time of such Indebtedness without duplicationacquisition (and not created in contemplation of such acquisition), provided that (1) (collectively, the “Other Indebtedness”); provided that: amount outstanding under clauses (i) the commitment amount of such Other Indebtedness and (ii) shall not exceed the Maximum Other Indebtedness Amount $500,000 in the aggregate at any time; time and (2) with respect to Indebtedness incurred under clause (ii) such Other Indebtedness, if secured, is secured by property other than the Collateralabove, (iiiX) any Property securing such Other Indebtedness is not cross-defaulted shall have been acquired by the Borrower or any Subsidiary in the ordinary course of its respective business and the Lien on any such Property shall attach to this Agreementsuch asset concurrently or within ninety (90) days after the acquisition thereof, (ivY) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time shall not exceed such purchase price or cost of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of any Property securing such Other Indebtedness, and (viZ) no covenants under any such Other Indebtedness incurred pursuant each Lien shall attach only to this clause the Property so acquired;
(lm) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.Intentionally omitted;
Appears in 1 contract
Sources: Credit Agreement (LGI Homes, Inc.)
Permitted Indebtedness. The Borrower shall not02.....Permitted Affiliate Transactions (vi) INDENTURE, dated as of September 29, 2000 among GB Property Funding Corp. (herein called the "Company"), GB Holdings, Inc. (herein called "Holdings") and shall not permit any Subsidiary toGreate Bay Hotel and Casino, createInc. (herein called "GBHC", incur or suffer to exist any Indebtednessand, except:
(a) together with Holdings, herein called the Obligations;
(b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date "Guarantors"), each of which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; providedcorporation duly organized and existing, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds the Company and Holdings, under the laws of the State of Delaware, and in the ordinary course case of business; providedGBHC, howeverunder the laws of the State of New Jersey, and each having its principal office c/o Sands Hotel and Casino at Indiana Avenue & Brighton Park, Atlantic City, New Jersey 08401, and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, Trustee (herein called the "Trustee"). The Company has duly authorized the creation of an issue of 11% First Mortgage Notes Due 2005 (herein called "First Mortgage Notes" or the "Securities"), of substantially the tenor and amount hereinafter set forth, and to provide therefore the Company has duly authorized the execution and delivery of this Indenture. The Company has duly authorized the creation of Liens to secure the Securities, and to provide therefore the Company has duly authorized the execution and delivery of the Security Documents to which it is a party. Each of the Guarantors has duly authorized its guarantee of the Securities, and to provide therefore each of the Guarantors has duly authorized the execution and delivery of this Indenture. Each of the Guarantors has duly authorized the creation of Liens to secure its guarantee of the Securities, and to provide therefore each of the Guarantors has duly authorized the execution and delivery of the Security Documents to which it is a party. This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, that are required to be part of this Indenture and shall, to the extent applicable, be governed by such Indebtedness provisions. All things necessary have been done to make the Securities, when executed by the Company and authenticated by the Trustee and delivered hereunder and duly issued by the Company, the valid obligations of the Company, to make the Guarantees the valid obligation of each of the Guarantors and to make this Indenture a valid agreement of each of the Company and the Guarantors, in accordance with their and its terms. For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured mutually covenanted and secured debt (includingagreed, for the avoidance equal and proportionate benefit of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time all Holders of the incurrence thereofSecurities, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.follows: ARTICLE ONE
Appears in 1 contract
Sources: Indenture (Gb Holdings Inc)
Permitted Indebtedness. The Borrower For purposes of determining compliance with this Section 6.1, (x) the outstanding principal amount of any Indebtedness shall notbe counted only once such that (without limitation) any obligation arising under any Guarantees or obligations with respect to letters of credit supporting Indebtedness otherwise included in the determination of such particular amount shall not be included and (y) except as provided above, in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described above, including categories of Permitted Indebtedness and Section 6.1(a), Borrower, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Indebtedness and such Indebtedness need not be permitted solely by reference to one provision of this Section 6.1 but may be permitted in part by one such provision and in part by one or more other provisions of this Section 6.1. Notwithstanding anything to this Section 6.1 or in the definition of “Permitted Indebtedness”, no Indebtedness shall not permit be Incurred under any Subsidiary to, create, incur or suffer ABL Credit Agreement except pursuant to exist any Indebtedness, except:
and in compliance with clause (a) of the Obligations;
(b) [intentionally deleted];
(c) definition of “Permitted Indebtedness”. The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Indebtedness existing in the forms of additional Indebtedness or payment of dividends on Stock in the forms of additional shares of Stock with the same terms and changes in the amount outstanding due solely to the result of fluctuations in the exchange rates of currencies will not be deemed to be an Incurrence of Indebtedness or issuance of Stock for purposes of this Section 6.1. Notwithstanding anything to the contrary herein, the maximum amount of Indebtedness that may be outstanding pursuant to this Section 6.1 will not be deemed exceeded due to the results of fluctuations in exchange rates or currency values. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Agreement Date which Incurrence of Indebtedness, the U.S. dollar equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred. None of Borrower and Guarantors will Incur any Indebtedness that pursuant to its terms is described subordinate or junior in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect right of the Obligations;
(e) payment to any Indebtedness of a Borrower owed to another Borrower; provided, however, that unless such Indebtedness is (i) unsecured and (ii) subordinated in right of payment to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to at least the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”)same extent; provided that: (i) the commitment amount that Indebtedness will not be considered subordinate or junior in right of such Other payment to any other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is solely by virtue of being unsecured or secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no a greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance or lesser extent or with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementgreater or lower priority.
Appears in 1 contract
Permitted Indebtedness. The Neither the Borrower shall not, and shall not permit nor any Subsidiary to, will create, incur or suffer to exist any Indebtedness, except, without duplication and without duplication as to the Borrower and Subsidiaries:
(a) the The Obligations;
(b) [intentionally deleted];
(c) Unsecured Indebtedness existing on the Agreement Date which Indebtedness is and described in on Schedule 7.1(g) attached hereto;
(dc) Derivatives Contracts entered into in respect of the Obligations;
(ed) Indebtedness of a the Borrower owed to another Borrowera Subsidiary Guarantor, Indebtedness of a Subsidiary Guarantor owed to the Borrower and Indebtedness of a Subsidiary Guarantor owed to a Subsidiary Guarantor; provided, however, that such (a) any Indebtedness of the Borrower owed to a Subsidiary Guarantor is (i) unsecured and (ii) subordinated to the Borrower’s Obligations pursuant hereunder in a manner satisfactory to Section 13.25 hereof orthe Administrative Agent, if and (b) upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness is evidenced by an instrument, is subordinated being owed to any Person other than the Obligations pursuant to the terms of such instrument Borrower or a separate written agreementSubsidiary Guarantor, in each casethe Borrower or such Subsidiary Guarantor hereunder, that is approved as applicable, shall be deemed to have incurred Indebtedness not permitted by Administrative Agent in its reasonable discretionthis clause (d);
(fe) trade Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(f) Indebtedness with respect to Letters of Credit;
(g) Indebtedness consisting of taxes Taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of the Borrower’s or any BorrowerSubsidiary’s business;
(h) performance Performance bonds, completion bonds, other bonds customarily used by any the Borrower in its trade or business, surety and appeal bonds, guarantees of performance, performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) Indebtedness arising under a guarantee of indebtedness of any Joint Venture (provided that such guarantee shall be deemed to be an investment in such Joint Venture and subject to the Convertible Debt, so long as limitations in clause (1e) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms definition of this Agreement Permitted Investments and (4) UHG complies with Section 10.10 below10.1(e));
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and;
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, i) Capitalized Lease Obligations and (ii) Non-Recourse Indebtedness secured by purchase money Liens on any Guarantee Property (other than any Borrowing Base Property) hereafter acquired or the assumption of any Lien on Property (other than any Borrowing Base Property) existing at the time of such Indebtedness without duplicationacquisition (and not created in contemplation of such acquisition), provided that (1) (collectively, the “Other Indebtedness”); provided that: amount outstanding under clauses (i) the commitment amount of such Other Indebtedness and (ii) shall not exceed the Maximum Other Indebtedness Threshold Amount in the aggregate at any time and (2) with respect to Indebtedness incurred under clause (ii) above, (X) any Property securing such Indebtedness shall have been acquired by the Borrower or any Subsidiary in the ordinary course of its respective business and the Lien on any such Property shall attach to such asset concurrently or within ninety (90) days after the acquisition thereof, (Y) the amount of such Indebtedness shall not exceed such purchase price or cost of any Property securing such Indebtedness, and (Z) each Lien shall attach only to the Property so acquired;
(m) Intentionally omitted;Indebtedness with respect to letters of credit (other than Letters of Credit); provided that (i) the aggregate face amount of such letters of credit does not exceed $10,000,000 at any time; , (ii) such Other Indebtedness, if secured, Indebtedness is unsecured or cash-secured by property other than the Collateral, and (iii) if cash-secured, the cash used to secure such Other Indebtedness is not cross-defaulted excluded (to this Agreement, the extent otherwise included) from the calculations of the Borrowing Base or the financial covenants set forth in Section 10.1;
(ivn) the Fair Market Value of such property that secures such Other Unsecured Indebtedness, if anyprovided that (A) after giving effect thereto, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be is in compliance with the financial covenants set forth in Section 10.1 at 10.1, (B) the time of and immediately after giving effect to the incurrence maturity date of such Other IndebtednessIndebtedness is at least one (1) year after the Maturity Date, and (viC) any covenants contained in the documents evidencing such Indebtedness must be no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those the covenants contained in this Agreement, as determined by the Administrative Agent in its sole discretion, and (D) such Indebtedness shall not contain any cross default to this Agreement;
(o) CDD Debt;
(p) Permitted Deferred Purchase Price Debt, provided that the outstanding principal amount of such Indebtedness does not exceed $25,000,000 at any time; and
(q) Senior Notes Indebtedness, provided that (A) after giving pro forma effect to the issuance of such Senior Notes Indebtedness and the use of proceeds therefrom as of the end of the most recently ended fiscal quarter, the Borrower is in compliance with the financial covenants set forth in Section 10.1, (B) the maturity date of such Senior Notes Indebtedness is at least ninety-one (91) days after the Maturity Date, (C) such Senior Notes Indebtedness and Senior Notes Indenture do not contain any financial maintenance covenants, and (D) the Borrower has delivered to the Administrative Agent a certificate of a Responsible Officer certifying to the compliance with clauses (A), (B), and (C) above, and (E) concurrently with the issuance thereof, the Borrower shall have delivered an opinion of counsel (subject to customary exceptions, qualifications and limitations) to the Borrower and the Guarantors, who may be an employee of or counsel to the Borrower and the Guarantors, addressed to the Administrative Agent and the Lenders, to the effect that the issuance of such Senior Notes Indebtedness does not conflict with or violate the terms of this Agreement, the Notes, or the Subsidiary Guaranties.
Appears in 1 contract
Sources: Second Amendment to Fifth Amended and Restated Credit Agreement (LGI Homes, Inc.)
Permitted Indebtedness. The Notice Addresses for Administrative Agent, Issuing Lenders, Swingline Lender and Collateral Agent A Form of Security Agreement B Form of Assignment and Assumption C Form of Compliance Certificate C-1 Form of Exemption Certificate C-2 Form of Exemption Certificate C-3 Form of Exemption Certificate C-4 Form of Exemption Certificate D-1 Form of First Lien/Second Lien Intercreditor Agreement D-2 Form of Terms of Intercreditor (pari passu) E Form of Prepayment Notice F-1 Form of Revolving Loan Note F-2 Form of Term Loan Note F-3 Form of Swingline Note G Form of Guarantor Joinder Agreement H Form of Borrowing and Conversion/Continuation Request I Form of Solvency Certificate J Form of Global Intercompany Note K Form of Co-Borrower shall notJoinder L Form of Borrower Assignment FIRST LIEN CREDIT AGREEMENT (this “Agreement”), dated as of August 1, 2018, among Severin Holdings, LLC, a Delaware limited liability company (“Holdings”), Severin Acquisition, LLC, a Delaware limited liability company (the “Top Borrower”), PeopleAdmin, Inc., a Delaware corporation (the “PA Borrower”), Promachos Holding, Inc., a Delaware corporation (“PeopleAdmin”) and shall not permit any Performance Matters LLC, a Utah limited liability company (“Performance Matters”), certain other Restricted Subsidiaries (this and each other capitalized term used herein without definition having the meaning assigned to such term in Section 1.1) from time to time designated hereunder as Co-Borrowers (together with the Top Borrower, the PA Borrower, PeopleAdmin and Performance Matters, each a “Borrower” and, collectively, the “Borrowers”), the Subsidiary to, create, incur or suffer Guarantors from time to exist any Indebtedness, except:
time party hereto (a) the Obligations;
(b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness including through delivery of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, Guarantor Joinder Agreement in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than accordance with the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectivelyAgreement), the several banks, financial institutions, institutional investors and other entities from time to time party hereto as lenders (the “Other IndebtednessLenders”); provided that: (i) , the commitment amount of such Other Indebtedness shall not exceed Issuing Lenders from time to time party hereto, the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other IndebtednessSwingline Lender and Barclays Bank PLC, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this AgreementAdministrative Agent.
Appears in 1 contract
Sources: First Lien Credit Agreement (Powerschool Holdings, Inc.)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (a) the Obligations;
collectively, "PERMITTED INDEBTEDNESS"): (b) [intentionally deleted];
(ci) Indebtedness existing under the Loan Documents, (ii) Indebtedness under the Fuller Note as in effect on the Agreement Closing Date, (iii) any Indebtedness set forth o▇ ▇▇▇▇dule 7.2, (iv) Capitalized Lease Obligations (or other Indebtedness in favor of Equipment Lenders) and future obligations under operating leases incurred after the Closing Date which and Indebtedness is described incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate amount of such Capitalized Lease Obligations, Indebtedness to Equipment Lenders and future obligations under operating leases and purchase money indebtedness outstanding at any time shall not exceed 590,000,000, (v) Indebtedness in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into connection with advances made by a stockholder in respect order to cure any default of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerfinancial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall he on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender's rights pursuant to a subordination agreement in form and substance satisfactory to Lender; and (iivi) subordinated accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to billing date or more than 30 days from the Obligations pursuant to the terms of such instrument or a separate written agreementdue date, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower's independent accountants shall have been reserved. Borrower shall not make prepayments on any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by existing or future Indebtedness to any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case Person other than for an obligation for money borrowed);
(i) to Lender or to the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms extent specifically permitted by this Agreement or any subsequent agreement between Borrower and conditions Lender. In no event may Borrower make any payments in respect of the Convertible Debt are no more restrictive than Fuller Note or any Indebtedness set forth on Schedule 7.2 if at the terms time of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by such ▇▇▇▇▇nt or after giving effect thereto there shall exist a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this AgreementDefault.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Western Express Holdings, Inc.)
Permitted Indebtedness. The Borrower shall not, Company will not and shall will not permit any Restricted Subsidiary toto incur, create, incur issue, assume or suffer permit to exist any Indebtedness, exceptIndebtedness other than:
(a) the ObligationsSenior Debt;
(b) [intentionally deleted]Subordinated Debt outstanding on the date hereof and reflected on Annex A to Exhibit B or permitted by 5.19;
(c) Indebtedness existing Capital Debt outstanding on the Agreement Date which Indebtedness is described in Schedule 7.1(g) heretodate hereof and reflected on Annex A to Exhibit B or permitted by 5.19;
(d) Derivatives Contracts entered into in respect Guaranties of the ObligationsCompany or a Restricted Subsidiary;
(e) Indebtedness Capitalized Leases of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretionCompany;
(f) trade accounts payable and accrued expenses arising or occurring liabilities (other than for borrowed money) incurred in the ordinary course regular operation of business;the Finance Business of the Company or a Restricted Subsidiary and not more than three months overdue, unless such overdue liabilities are either (i) less than U.S.$250,000 in any one case and less than U.S.$2,500,000 in the aggregate, or (ii) being contested in good faith by appropriate actions or proceedings and, with respect thereto, the Company or such Restricted Subsidiary shall have set aside on its books reserves deemed by it to be adequate; and
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all a Restricted Subsidiary to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade Company or business, surety to a Wholly-owned Restricted Subsidiary and appeal bonds, guarantees of performance, and guarantees of Indebtedness of the Company to a special district entered into in Wholly-owned Restricted Subsidiary. Any corporation which becomes a Restricted Subsidiary after the ordinary course of business (in each case other than date hereof shall for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms all purposes of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank 5.7 be deemed to have created, assumed or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom incurred at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee it becomes a Restricted Subsidiary all Indebtedness of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and corporation existing immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as it becomes a whole, than those covenants contained in this AgreementRestricted Subsidiary.
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur or suffer to exist any Indebtedness, exceptFor as long as at least thirty-three (33%) percent of the shares of Preferred Stock originally issued on the Closing Date are held by the Investors:
(a) The Corporation shall not incur any Indebtedness (other than (i) any Guarantees by the ObligationsCorporation in favor of SS/L relating solely to SS/L's performance under any satellite manufacturing agreements, and (ii) from any wholly-owned Subsidiary so long as the Corporation does not grant any security interest relating to or in connection with such Indebtedness) in excess of One Million Dollars ($1,000,000) in the aggregate unless the Adjusted Tangible Asset Value as of the date set forth in the most recent periodic report of the Corporation filed pursuant to the Exchange Act exceeds the TAV Threshold. If the Adjusted Tangible Asset Value as of the date set forth in the most recent periodic report of the Corporation filed pursuant to the Exchange Act exceeds the TAV Threshold, the Corporation shall be permitted to incur Indebtedness from the day after the filing of such periodic report until the day of the filing of the next periodic report (the "Indebtedness Incurrence Period"), provided that the amount of such Indebtedness shall not exceed, when aggregated with all other Indebtedness incurred during such Indebtedness Incurrence Period, an amount equal to one-half of the difference between the Adjusted Tangible Asset Value as of the date set forth in the most recent periodic report of the Corporation filed pursuant to the Exchange Act and the TAV Threshold;
(b) [intentionally deleted];Prior to any incurrence of any Indebtedness permitted by the paragraph immediately above, the Corporation shall deliver to the Investors a certificate, signed by a duly authorized officer of the Corporation, stating that the Corporation has determined, in good faith and in consultation with and after taking the advice of the Chief Financial Officer of the Corporation, that (A) the Adjusted Tangible Asset Value exceeds the TAV Threshold, and (B) the Indebtedness to be incurred will not exceed one-half of the difference between the Adjusted Tangible Asset Value and the TAV Threshold, in each case as of the date of the incurrence of such Indebtedness; and
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect If any Subsidiary of the Obligations;
Corporation (eother than SkyNet and its Subsidiaries) Indebtedness of a Borrower owed to another Borrower; providedincurs Indebtedness, however, that such Indebtedness is Subsidiary shall not Transfer (i) unsecured any proceeds or other consideration received by such Subsidiary from the incurrence of such Indebtedness, and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms any substitution of such instrument proceeds or a separate written agreementother consideration, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising including assets or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, property acquired using such proceeds or consideration or proceeds or other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising consideration received from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee disposition of such Indebtedness without duplication) (collectivelyassets or property, the “Other Indebtedness”); provided that: (i) the commitment amount to SkyNet or any of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtednessits Subsidiaries, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be except in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement5.07 hereof.
Appears in 1 contract
Sources: Securities Purchase Agreement (Loral Space & Communications Inc.)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (a) the Obligations;
collectively, “Permitted Indebtedness”): (b) [intentionally deleted];
(ci) Indebtedness existing under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Agreement Closing Date which and Indebtedness is described incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate outstanding amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date shall not exceed $1,000,000, (iv) Indebtedness in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into connection with advances made by a stockholder in respect order to cure any default of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerfinancial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations and to all of Lender’s rights pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the Obligations pursuant to billing date or more than 30 days from the terms of such instrument or a separate written agreementdue date, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of any business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s business;
independent accountants shall have been reserved; (hvi) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into borrowings incurred in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank not exceeding $50,000 individually 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; aggregate outstanding at any one time, provided, however, that such Indebtedness is extinguished within five (5) Business Days shall be on an unsecured basis, subordinated in right of incurrence;
(k) Indebtedness arising in connection with endorsement repayment and remedies to all of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee to all of such Indebtedness without duplication) (collectively, the “Other Indebtedness”)Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.vii)
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Occupational Health & Rehabilitation Inc)
Permitted Indebtedness. The Borrower shall will not, and shall will not permit any Restricted Subsidiary to, incur, create, incur issue, assume or suffer permit to exist any Indebtedness, exceptIndebtedness for Borrowed Money other than:
(a) the ObligationsNotes issued hereunder, and the Subsidiary Guaranty Agreement relating thereto;
(b) [intentionally deleted]Subordinated Debt;
(c) Indebtedness existing on the Agreement Date which Indebtedness is described debt incurred in Schedule 7.1(g) heretoconnection with permitted Fixed Asset Financing;
(d) Derivatives Contracts entered into debt arising in respect connection with a letter of credit to be issued by ▇▇▇▇▇▇ Trust and Savings Bank, in its individual capacity and not as Agent or as a Bank hereunder, for the account of the ObligationsBorrower and one or more of its Subsidiaries in an amount not exceeding $10,000,000 (as reduced from time to time in accordance with its terms) and having an expiration date not longer than 12 months from the date of issuance to secure obligations of the Borrower and its Subsidiaries owing to the Assurant Group/Assurant Solutions or its affiliates arising as a result of the Borrower terminating its current business arrangements with Assurant Group/Assurant Solutions or its affiliates;
(e) unsecured Indebtedness of a for Borrowed Money owing between the Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring Restricted Subsidiaries in the ordinary course of business;
(g) , provided that the aggregate amount of Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all for Borrowed Money at any one time owing either by or to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of businessInsurance Subsidiary shall not exceed $1,000,000; and
(lf) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt Indebtedness for Borrowed Money to any Person (including, other than to the Borrower or another Restricted Subsidiary) in an aggregate amount for the avoidance of doubt, Capitalized Lease Obligations Borrower and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall all Restricted Subsidiaries not exceed the Maximum Other Indebtedness Amount in the aggregate exceeding $1,000,000 at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time outstanding.
1.2. Section 8.15 of the incurrence thereof, (v) the Borrower shall be Credit Agreement is hereby amended and restated in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect its entirety to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken read as a whole, than those covenants contained in this Agreement.follows:
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (a) the Obligations;
collectively, "PERMITTED INDEBTEDNESS"): (b) [intentionally deleted];
(ci) Indebtedness existing under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Agreement Closing Date which and Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate amount of Capitalized Lease Obligations outstanding at any time shall not exceed $1,000,000 during the one year period from and after the date hereof and shall not exceed $1,500,000 during the two year period from and after the first anniversary of the Obligations;
date hereof, (eiv) Indebtedness in connection with advances made by a stockholder or an Affiliate in order to cure any default of a Borrower owed to another Borrowerthe financial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations pursuant and to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated all of Lender's rights and in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the Obligations pursuant to billing date or more than 30 days from the terms of such instrument or a separate written agreementdue date, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower's independent accountants shall have been reserved; (vi) ordinary course of business operating leases; (vii) Indebtedness for loans made to Borrower by Affiliates to be used in connection with the Stock Repurchase, provided, however, that any Borrower’s business;
such loans shall provide only for interest payments during the Term and the interest rate shall be not more than five percent; (hviii) performance bonds, completion bonds, other bonds customarily used by Indebtedness in connection with any Borrower in its trade or business, surety and appeal bonds, guarantees loans against the cash surrender value of performance, and guarantees of Indebtedness of a special district entered into key man life insurance policies; (ix) borrowings incurred in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank not exceeding $25,000 individually 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 businessaggregate outstanding at any one time; provided, however, that such Indebtedness is extinguished within five shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender's rights and in form and substance satisfactory to Lender, and (5x) Business Days of incurrence;
(k) any Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default from or Event of Default exists or would result therefrom at the time incurredrelated to a catastrophic event, other unsecured and secured debt (including, for the avoidance of doubtwithout limitation, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness fire or natural disaster. Borrower shall not exceed make prepayments on any existing or future Indebtedness to any Person other than to Lender or to the Maximum Other Indebtedness Amount extent specifically permitted by this Agreement or any subsequent agreement between Borrower and Lender in excess of $50,000 individually or $150,000 in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than through the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this AgreementTerm).
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Coast Dental Services Inc)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (a) the Obligations;
collectively, “Permitted Indebtedness”): (b) [intentionally deleted];
(ci) Indebtedness existing under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after April 30, 2004 and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the Agreement Date which aggregate amount of such Capitalized Lease Obligations and purchase money indebtedness outstanding at any time shall not exceed $250,000, (iv) Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into connection with advances made by a stockholder in respect order to cure any default of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerfinancial covenants set forth on Annex I.A. and Annex I.B.; provided, however, that such Indebtedness is (i) shall be on an unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations and to all of Lender’s rights pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the Obligations pursuant to billing date or more than 30 days from the terms of such instrument or a separate written agreementdue date, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of any business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s business;
independent accountants shall have been reserved; (hvi) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into incurred in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank not exceeding $100,000 individually 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; aggregate outstanding at any one time, provided, however, that such Indebtedness is extinguished within five (5) Business Days shall be on an unsecured basis, subordinated in right of incurrence;
(k) Indebtedness arising in connection with endorsement repayment and remedies to all of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee to all of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount Lender’s rights pursuant to a subordination agreement in the aggregate at any timeform and substance satisfactory to Lender; (iivii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other IndebtednessPermitted Subordinated Debt, and (viviii) no covenants under Indebtedness consisting of unsecured Deferred Purchase Price Obligations. Borrower shall not make prepayments on any such Other existing or future Indebtedness incurred pursuant in excess of $100,000 to any Person other than to Lender or to the extent specifically permitted by this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this AgreementAgreement or any subsequent agreement between Borrower and Lender.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (NationsHealth, Inc.)
Permitted Indebtedness. The Borrower shall not, and Purchaser shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (a) the Obligations;
collectively, “Permitted Indebtedness”): (b) [intentionally deleted];
(ci) Indebtedness existing under the Acquisition Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Agreement Closing Date which and Indebtedness is described incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate amount of such Capitalized Lease Obligations and purchase money indebtedness outstanding at any time shall not exceed $75,000, (iv) Indebtedness in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into connection with advances made by a stockholder in respect order to cure any default of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerfinancial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations and to all of Seller’s rights pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated a subordination agreement in form and substance satisfactory to Seller; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the Obligations pursuant to billing date or more than 30 days from the terms of such instrument or a separate written agreementdue date, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of any Borrowerbusiness and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Purchaser’s business;
independent accountants shall have been reserved; (hvi) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into borrowings incurred in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank not exceeding $40,000 individually 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; aggregate outstanding at any one time, provided, however, that such Indebtedness is extinguished within five shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Seller’s rights pursuant to a subordination agreement in form and substance satisfactory to Seller; and (5vii) Business Days of incurrence;
Permitted Subordinated Debt and (kviii) Indebtedness arising in connection with endorsement of instruments for deposit in under the ordinary course of business; and
(l) so long as no Default Credit Agreement. Purchaser shall not make prepayments on any existing or Event of Default exists or would result therefrom at the time incurred, future Indebtedness to any Person other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: than (i) to Capital Source in accordance with the commitment amount terms of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; Credit Agreement, (ii) such Other Indebtednessto Seller subject to the terms of the Master Subordination Agreement, if secured, is secured by property other than the Collateral, or (iii) such Other Indebtedness is not cross-defaulted to this Agreement, the Debenture Holder subject to the terms of the Junior Subordination Agreement or (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, extent specifically permitted by this Agreement or any subsequent agreement between Purchaser and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this AgreementSeller.
Appears in 1 contract
Permitted Indebtedness. The Borrower shall notBorrow money, and shall not permit any Subsidiary to, issue evidences of indebtedness or create, incur assume, guarantee or become contingently liable for or suffer to exist any Indebtednessindebtedness (including, without limitation, Capitalized Lease Obligations) in addition to the Notes, except:
(ai) Current Debt of the ObligationsCompany to banks or other similar financial institutions, which indebtedness is unsecured except as permitted by paragraph 5(i)(v) hereof;
(bii) [intentionally deleted]the following types of Funded Debt:
(A) Capitalized Lease Obligations and Purchase Money Obligations of the Company incurred after the Closing Date; and
(B) other Funded Debt of the Company incurred after the Closing Date, which indebtedness shall be unsecured;
(ciii) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect indebtedness and guaranties of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; Company and its Subsidiaries set forth on Exhibit D hereto, provided that such indebtedness shall be repaid in accordance with its terms and with the schedule set forth in Exhibit D with no extension, renewal or other modification, provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated indebtedness marked with an asterisk on Exhibit D shall be paid in full on or prior to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated Closing Date from the proceeds of the sale of the Notes or from other capital resources of the Company;
(iv) indebtedness of Subsidiaries to the Obligations pursuant to the terms Company constituting general obligations of such instrument Subsidiaries, incurred in connection with (A) gold consignment transactions or a separate written agreement(B) financing of any accounts receivable of such Subsidiaries, in each case, that so long as such indebtedness is approved by Administrative Agent in its reasonable discretionnot subordinated to any other indebtedness of such Subsidiaries;
(fv) trade accounts payable and accrued expenses arising or occurring in indebtedness of a Subsidiary acquired by the ordinary course Company after the date hereof existing at the time of businesssuch acquisition;
(gvi) Indebtedness consisting amounts due by the Company to any consignor of taxes payable, and obligations fine gold in respect of customer deposits, all the gold consigned by it to the extent incurred in the ordinary course of any Borrower’s business;Company; and
(hvii) performance bondsindebtedness or liabilities, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness incurred or 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, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this Funded Debt described in clause (lii) shall be more restrictiveabove and to any concurrent transactions, when taken as a whole, than those covenants contained in this AgreementTotal Funded Debt (excluding current maturities) does not exceed 50% of Total Capitalization.
Appears in 1 contract
Sources: Note Purchase Agreement (Michael Anthony Jewelers Inc)
Permitted Indebtedness. The Borrower shall not, and Trinidad Obligor shall not permit any Subsidiary to, create, create or incur or suffer to exist any IndebtednessIndebtedness except the following (collectively, except:"TRINIDAD PERMITTED PROJECT INDEBTEDNESS"):
(a) the ObligationsIndebtedness incurred pursuant to this Agreement;
(b) [intentionally deleted];Indebtedness incurred to finance in whole or in part the making of capital improvements to the Trinidad Project required to maintain compliance with Applicable Law; PROVIDED that the Independent Engineer shall have certified to the Bond Trustee that:
(ci) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g(x) hereto;
(d) Derivatives Contracts entered into in respect an Officer's Certificate of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, Trinidad Obligor certifying that such Indebtedness is (i) unsecured required to make a capital improvement to the Trinidad Project that is required in order to maintain compliance with Applicable Law is reasonable and (iiy) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days the most effective means of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in making such capital expenditure and, if applicable, completing the ordinary course of businessTrinidad Project; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, the minimum Projected Debt Service Coverage Ratio for (A) the next four consecutive fiscal quarters, commencing with the quarter in which such Indebtedness is to be incurred, taken as one annual period, and (viB) each subsequent fiscal year through the Final Maturity Date for the Securities, will not be less than 1.2 to 1;
(c) Indebtedness incurred to finance in whole or in part the making of capital improvements to the Trinidad Project other than those capital improvements referenced in clause (b) above; PROVIDED that:
(i) an Authorized Officer of the Trinidad Obligor certifies to the Bond Trustee that no covenants default or event of default under any Finance Document has occurred and is continuing or will occur as a result of the incurrence of such Other Indebtedness;
(ii) the Independent Engineer shall have certified to the Bond Trustee that after giving effect to the incurrence of such Indebtedness, (x) the minimum Projected Debt Service Coverage Ratio for (A) the next four consecutive fiscal quarters commencing with the quarter in which such Indebtedness is to be incurred, taken as one annual period and (B) each subsequent fiscal year through the Final Maturity Date for the Securities, will not be less than 1.5 to 1, and (y) the average Projected Debt Service Coverage Ratio for all succeeding fiscal years until the Final Maturity Date for the Securities will not be less than 1.55 to 1; and
(iii) written confirmation from each Rating Agency then rating the Securities that the incurrence of such Indebtedness will not result in a Ratings Downgrade;
(d) Indebtedness in the form of a working capital facility for the benefit of the Trinidad Project in an aggregate principal amount not to exceed U.S. $3,000,000; PROVIDED that such amount shall include any Indebtedness incurred by the Trinidad Project Borrower pursuant to this clause (lSECTION 4.14(d) of the Trinidad Project Loan Agreement; PROVIDED FURTHER that the terms of such facility provide that the aggregate amount of all loans outstanding thereunder shall be more restrictivereduced to zero for ten (10) days in each fiscal year;
(e) To the extent such obligations would constitute Indebtedness, when taken as a whole, than those covenants contained in this Agreement.obligations of the Trinidad Obligor under the Trinidad Project Documents;
(f) Indebtedness related to Trinidad Permitted Project Liens; and
Appears in 1 contract
Sources: Loan Agreement (York Research Corp)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (a) the Obligations;
collectively, “Permitted Indebtedness”): (b) [intentionally deleted];
(ci) Indebtedness existing under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Agreement Closing Date which and Indebtedness is described incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate amount of such Capitalized Lease Obligations and purchase money indebtedness outstanding at any time shall not exceed $25,000, (iv) Indebtedness in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into connection with advances made by a stockholder in respect order to cure any default of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerfinancial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations and to all of Lender’s rights pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the Obligations pursuant to billing date or more than 30 days from the terms of such instrument or a separate written agreementdue date, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of any business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s business;
independent accountants shall have been reserved; (hvi) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into borrowings incurred in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank not exceeding $10,000 individually 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; aggregate outstanding at any one time, provided, however, that such Indebtedness is extinguished within five (5) Business Days shall be on an unsecured basis, subordinated in right of incurrence;
(k) Indebtedness arising in connection with endorsement repayment and remedies to all of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee to all of such Indebtedness without duplication) (collectively, the “Other Indebtedness”)Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.vii)
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Derma Sciences, Inc.)
Permitted Indebtedness. The Neither the Borrower shall not, and shall not permit nor any Subsidiary to, will create, incur or suffer to exist any Indebtedness, except, without duplication and without duplication as to the Borrower and Subsidiaries:
(a) the The Obligations;
(b) [intentionally deleted]Unsecured Indebtedness existing on the ThirdFourth Amendment Effective Date and described on Schedule 7.1(g) attached hereto;
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(ed) Indebtedness of a the Borrower owed to another Borrowera Subsidiary Guarantor, Indebtedness of a Subsidiary Guarantor owed to the Borrower and Indebtedness of a Subsidiary Guarantor owed to a Subsidiary Guarantor; provided, however, that such (a) any Indebtedness of the Borrower owed to a Subsidiary Guarantor is (i) unsecured and (ii) subordinated to the Borrower’s Obligations pursuant hereunder in a manner satisfactory to Section 13.25 hereof orthe Administrative Agent, if and (b) upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness is evidenced by an instrument, is subordinated being owed to any Person other than the Obligations pursuant to the terms of such instrument Borrower or a separate written agreementSubsidiary Guarantor, in each casethe Borrower or such Subsidiary Guarantor hereunder, that is approved as applicable, shall be deemed to have incurred Indebtedness not permitted by Administrative Agent in its reasonable discretionthis clause (d);
(fe) trade Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(f) Indebtedness with respect to Letters of Credit;
(g) Indebtedness consisting of taxes Taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of the Borrower’s or any BorrowerSubsidiary’s business;
(h) performance Performance bonds, completion bonds, other bonds customarily used by any the Borrower in its trade or business, surety and appeal bonds, guarantees of performance, performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) Indebtedness arising under a guarantee of indebtedness of any Joint Venture (provided that such guarantee shall be deemed to be an investment in such Joint Venture and subject to the Convertible Debt, so long as limitations in clause (1e) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms definition of this Agreement Permitted Investments and (4) UHG complies with Section 10.10 below10.1(e));
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and;
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, i) Capitalized Lease Obligations and (ii) Non-Recourse Indebtedness secured by purchase money Liens on any Guarantee Property (other than any Borrowing Base Property) hereafter acquired or the assumption of any Lien on Property (other than any Borrowing Base Property) existing at the time of such Indebtedness without duplicationacquisition (and not created in contemplation of such acquisition), provided that (1) (collectively, the “Other Indebtedness”); provided that: amount outstanding under clauses (i) the commitment amount of such Other Indebtedness and (ii) shall not exceed the Maximum Other Indebtedness Threshold Amount in the aggregate at any time and (2) with respect to Indebtedness incurred under clause (ii) above, (X) any Property securing such Indebtedness shall have been acquired by the Borrower or any Subsidiary in the ordinary course of its respective business and the Lien on any such Property shall attach to such asset concurrently or within ninety (90) days after the acquisition thereof, (Y) the amount of such Indebtedness shall not exceed such purchase price or cost of any Property securing such Indebtedness, and (Z) each Lien shall attach only to the Property so acquired;
(m) Indebtedness with respect to letters of credit (other than Letters of Credit); provided that (i) the aggregate face amount of such letters of credit does not exceed $10,000,000 at any time; , (ii) such Other Indebtedness, if secured, Indebtedness is unsecured or cash-secured by property other than the Collateral, and (iii) if cash-secured, the cash used to secure such Other Indebtedness is not cross-defaulted excluded (to this Agreement, (ivthe extent otherwise included) from the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time calculations of the incurrence thereof, (v) the Borrower shall be in compliance with Borrowing Base or the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.10.1;
Appears in 1 contract
Sources: Fifth Amended and Restated Credit Agreement (LGI Homes, Inc.)
Permitted Indebtedness. The Neither the Borrower shall not, and shall not permit nor any Subsidiary to, will create, incur or suffer to exist any Indebtedness, except, without duplication and without duplication as to the Borrower and Subsidiaries:
(a) the The Obligations;
(b) [intentionally deleted];
(c) Unsecured Indebtedness existing on the Agreement Date which Indebtedness is and described in on Schedule 7.1(g) attached hereto;
(dc) Derivatives Contracts entered into in respect of the Obligations;
(ed) Indebtedness of a the Borrower owed to another Borrowera Subsidiary Guarantor, Indebtedness of a Subsidiary Guarantor owed to the Borrower and Indebtedness of a Subsidiary Guarantor owed to a Subsidiary Guarantor; provided, however, that such (a) any Indebtedness of the Borrower owed to a Subsidiary Guarantor is (i) unsecured and (ii) subordinated to the Borrower’s Obligations pursuant hereunder in a manner satisfactory to Section 13.25 hereof orthe Administrative Agent, if and (b) upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness is evidenced by an instrument, is subordinated being owed to any Person other than the Obligations pursuant to the terms of such instrument Borrower or a separate written agreementSubsidiary Guarantor, in each casethe Borrower or such Subsidiary Guarantor hereunder, that is approved as applicable, shall be deemed to have incurred Indebtedness not permitted by Administrative Agent in its reasonable discretionthis clause (d);
(fe) trade Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(f) Indebtedness with respect to Letters of Credit;
(g) Indebtedness consisting of taxes Taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of the Borrower’s or any BorrowerSubsidiary’s business;
(h) performance Performance bonds, completion bonds, other bonds customarily used by any the Borrower in its trade or business, surety and appeal bonds, guarantees of performance, performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) Indebtedness arising under a guarantee of indebtedness of any Joint Venture (provided that such guarantee shall be deemed to be an investment in such Joint Venture and subject to the Convertible Debt, so long as limitations in clause (1e) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms definition of this Agreement Permitted Investments and (4) UHG complies with Section 10.10 below10.1(e));
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and;
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, i) Capitalized Lease Obligations and (ii) Non-Recourse Indebtedness secured by purchase money Liens on any Guarantee Property (other than any Borrowing Base Property) hereafter acquired or the assumption of any Lien on Property (other than any Borrowing Base Property) existing at the time of such Indebtedness without duplicationacquisition (and not created in contemplation of such acquisition), provided that (1) (collectively, the “Other Indebtedness”); provided that: amount outstanding under clauses (i) the commitment amount of such Other Indebtedness and (ii) shall not exceed the Maximum Other Indebtedness Amount $500,000 in the aggregate at any time; time and (2) with respect to Indebtedness incurred under clause (ii) above, (X) any Property securing such Indebtedness shall have been acquired by the Borrower or any Subsidiary in the ordinary course of its respective business and the Lien on any such Property shall attach to such asset concurrently or within ninety (90) days after the acquisition thereof, (Y) the amount of such Indebtedness shall not exceed such purchase price or cost of any Property securing such Indebtedness, and (Z) each Lien shall attach only to the Property so acquired;
(m) The Convertible Notes, provided that (i) the outstanding principal amount of such Indebtedness does not exceed $69,962,000 in the aggregate at any time and (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.unsecured;
Appears in 1 contract
Sources: Credit Agreement (LGI Homes, Inc.)
Permitted Indebtedness. The (i) Agent hereby consents to the financing to be provided on the date hereof by CIT Group to Borrower in the maximum principal amount of $11,000,000.00 (the “CIT Loan”), provided that the proceeds of the CIT Loan shall notbe disbursed directly to Agent, for the benefit of Borrower, for application to the prepayment of the Term Loans as contemplated hereby, and, provided further, that the CIT Loan shall be secured only by the assets listed on Schedule 1(c) hereto (the “CIT Collateral”). Notwithstanding anything contained in the Credit Agreement or the other Loan Documents to the contrary including, without limitation, Sections 6.11 and 6.15 of the Credit Agreement, neither Borrower’s acceptance of the CIT Loan nor the grant by Borrower of a first position security interest in the CIT Collateral, shall not permit any Subsidiary toconstitute a breach, createDefault or Unmatured Default under the Credit Agreement or the other Loan Documents.
(ii) Agent hereby agrees to execute and deliver to Borrower, incur or suffer to exist any Indebtednessan escrow agent selected by Borrower, exceptAgent and CIT Group, a Partial Release dated of even date herewith, pursuant to which Agent shall release all of its right, title and interest in and to the CIT Collateral (“Partial Release”).
(iii) Subpart (iv) of Section 6.11 of the Credit Agreement is hereby revised and replaced in its entirety by the following:
(iv) Consolidated Indebtedness, calculated for the Borrower and/or its Subsidiaries without duplication, not exceeding (1) $32,500,000.00 in the aggregate incurred at any time during fiscal year 2004, and (2) an incremental $10,000,000.00 in the aggregate incurred at any time after January 1, 2005; provided, that all of such Consolidated Indebtedness is incurred for the sole purpose of purchasing, leasing or other financings, including time shares, with respect to aircraft and related tangible fixed assets in fiscal years 2004, 2005 and/or 2006, or refinancing the same in fiscal year 2004, it being understood and agreed that if (a) the Obligations;
such covenants, defaults, and other terms and conditions shall include any financial covenants with respect to Borrower or any of its Subsidiaries, and (b) [intentionally deleted];
any security interest shall be granted in connection with such Consolidated Indebtedness (c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations as permitted pursuant to Section 13.25 hereof or6.15), if then the bank, financial institution or other creditor to which such Consolidated Indebtedness is evidenced by owing shall have entered into an instrument, is subordinated Inter-Creditor Agreement with Agent for the benefit of the Lenders and in form and substance satisfactory to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other IndebtednessLenders.”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not, and shall not permit Neither Company nor any Subsidiary to, will create, incur or suffer to exist assume any Indebtedness, exceptIndebtedness other than:
(a) Indebtedness represented by or incurred under the ObligationsNotes and the Purchase Agreement and all Senior Indebtedness;
(b) [intentionally deleted]Indebtedness incurred to prepay or repay in full the remaining outstanding principal amount of Notes and all other amounts due thereon or under the Purchase Agreement;
(c) Indebtedness existing on the Agreement Closing Date which Indebtedness is described in Schedule 7.1(g) heretoand identified on the Disclosure Schedule;
(d) Derivatives Contracts entered into in respect Indebtedness incurred solely as an extension, renewal, refinancing or replacement of Indebtedness of the ObligationsCompanies under clause (c) above (but excluding any Indebtedness under clause (c) above to the extent such Indebtedness is repaid with the proceeds from the sale of the Notes and Warrants), provided that any such extension, renewal or refinancing (A) shall be on terms which on balance are substantially as favorable to the Companies as the terms of such existing Indebtedness (other than changes in the amount of the interest rate and other than the imposition of additional Liens permitted by Section 8.9(h) hereof) and (B) shall not be in a greater principal amount or have a shorter average life or earlier maturity than such existing Indebtedness;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to Interest Rate Protection Agreements required by the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument Senior Credit Facility or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring incurred for hedging purposes in the ordinary course of business;
(f) Capitalized Leases, to the extent the aggregate amount of Capitalized Lease Obligations under all Capital Leases when aggregated with the amount of Indebtedness permitted by Section 8.3(g) (I) incurred during any one year shall not exceed $200,000 and (II) outstanding at any one time shall not exceed $1,250,000;
(g) Indebtedness consisting incurred to pay all or a portion of taxes payable, and obligations in respect the purchase price of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily equipment or machinery used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business of the Company or any of its Subsidiaries or any Indebtedness incurred to refinance such Indebtedness, provided that the aggregate principal amount of all Indebtedness secured by Liens permitted by this clause (in each case other than for an obligation for money borrowedg), when aggregated with the amount of Indebtedness permitted by Section 8.3(f) does not exceed at any one time outstanding the amounts permitted pursuant to 8.3(f); and;
(ih) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Additional Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment an amount of such Other Indebtedness shall which does not exceed the Maximum Other $3,300,000 (which Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is may or may not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementthe Senior Credit Facility).
Appears in 1 contract
Sources: Purchase Agreement (Ubiquitel Inc)
Permitted Indebtedness. The Borrower shall notIndebtedness" means the following, and shall not permit any Subsidiary towhether secured or unsecured, creatematured or unmatured, incur liquidated or suffer to exist any Indebtednessunliquidated, except:
(a) the Obligations;
(b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is joint or several: (i) unsecured all obligations for borrowed money (including recourse and other obligations to repurchase accounts or chattel paper under factoring, receivables purchase or similar financing arrangement or for the deferred purchase price of property or services); (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and all obligations in respect of customer depositssurety bonds and letters of credit; (iii) all obligations evidenced by notes, bonds, debentures or other similar instruments, (iv) all capital lease obligations; (v) all obligations or liabilities of others secured by a Lien on any asset of any of the Loan Parties, whether or not such obligation or liability is assumed; (vi) all obligations to pay the extent deferred purchase price of assets (other than trade payables incurred in the ordinary course of any Borrower’s business;
business and repayable in accordance with customary trade practices); (hvii) performance bondsall guaranties of the obligations of another Person; and (viii) all obligations owing under Hedge Agreements (which amounts will be calculated based on the amount that would be payable by Borrowers if the Hedge Agreement were terminated on the date of determination). "Permitted Indebtedness" means (a) Indebtedness of Borrowers described on Schedule B; (b) purchase money indebtedness incurred in connection with the financing of the purchase by Borrowers of fixed assets (including capitalized leases), completion bondsso long as, other bonds customarily used by any Borrower in each case, (i) no more than an aggregate principal amount of $1,000,000 of such indebtedness is incurred between the Closing Date and December 31, 2014, (ii) no more than an aggregate principal amount of $2,000,000 of such indebtedness is incurred between the Closing Date and December 31, 2015, (iii) the terms of such indebtedness, and the documentation delivered in connection therewith, are in form and substance satisfactory to Lender in its trade or businessPermitted Discretion, surety are and appeal bonds(iv) any Liens securing any of such indebtedness shall secure only the fixed assets purchased (or, guarantees in the case of performancecapitalized leases, and guarantees leased) with the proceeds of such indebtedness; (c) Indebtedness of a special district entered into WESSCO under the BoK Facility existing as of the Closing Date (less any principal payments on account of the BoK Facility after the Closing Date); (d) the Hedge Agreement with The Bank of Kentucky as in existence on the Closing Date; (e) the Parent-WESSCO Note as in existence on the Closing Date and fully disclosed to the Lender, so long as the Loan Parties comply with Section 5.12 with respect thereto; (f) additional unsecured Indebtedness or unsecured liabilities incurred in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not to exceed the Maximum Other Indebtedness Amount $500,000 in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the one time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementoutstanding.
Appears in 1 contract
Sources: Credit Agreement (Industrial Services of America Inc /Fl)
Permitted Indebtedness. The Borrower shall notIncur or permit to exist or remain outstanding any Indebtedness; provided, and shall not permit any Subsidiary tohowever, create, that the Consolidated Group may incur or suffer permit to exist any Indebtedness, exceptor remain outstanding:
(a) Tower Construction Loans, subject to the Obligationsrequirements of Section 8.03;
(b) [intentionally deleted]non-recourse purchase money Indebtedness, subject to the restrictions set forth in Section 7.02(l);
(c) Indebtedness existing on assumed in connection with the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect acquisition of the Obligations;
(e) an asset or Indebtedness of a Borrower owed to another Borrower; providedPerson, howeverin either case, that existing at the time such asset or Person is acquired by, or merged or consolidated with or into, any member of the Consolidated Group (and refinancings, refundings, renewals, extensions, and replacements of such Indebtedness is (i) unsecured and (ii) subordinated to that do not increase the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to outstanding principal amount thereof at the Obligations pursuant to the terms time of such instrument refinancing, refunding, renewal, extension, or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowedreplacement);
(i) the Convertible Debt, so long as (1i) [intentionally deleted]such Indebtedness was not incurred in contemplation of such acquisition, (2) the Convertible Debt remains unsecuredmerger, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement or consolidation, and (4ii) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default then exists or would arises as a result therefrom at the time incurredthereof;]
(d) [Reserved.]
(e) Indebtedness in respect of Swap Contracts;
(f) existing Indebtedness described in Schedule 7.01, other unsecured and secured debt (includingrefinancings, for the avoidance of doubtrefunding, Capitalized Lease Obligations renewals, extensions, and any Guarantee replacements of such Indebtedness without duplication) (collectively, that do not increase the “Other Indebtedness”); provided that: (i) the commitment outstanding principal amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined thereof at the time of such refinancing, refunding, renewal, extension, or replacement;
(g) Guarantees of Indebtedness of any member of the incurrence thereofConsolidated Group permitted by clauses (a), (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtednessc), and (vie) no covenants under of this Section 7.01; and
(h) Indebtedness with respect to CDD Obligations. Without limiting the foregoing, Borrower shall not, nor shall it permit any such Other member of the Consolidated Group to, directly or indirectly incur or permit to exist or remain outstanding any Senior Unsecured Debt. The provisions of the foregoing sentence are not intended to restrict the Consolidated Group from incurring or permitting to exist or remain outstanding purchase money Indebtedness incurred pursuant to this clause permitted by Section 7.01 (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementb).
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(a) Indebtedness to Lender in connection with the Obligations;
Revolving Credit, Term Loan and Letters of Credit or otherwise pursuant to the Loan Documents; (b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent payables incurred in the ordinary course of any Borrower’s business;
; (hc) performance bondspurchase money Indebtedness (including Capitalized Lease Obligations) hereafter incurred by Borrower to finance the purchase of fixed assets; provided that, completion bonds(i) the amount of such Indebtedness incurred in any fiscal year shall not exceed Two Hundred Thousand Dollars ($200,000) in the aggregate, (ii) such Indebtedness shall not exceed the purchase price of the assets funded and (iii) no such Indebtedness may be refinanced for a principal amount in excess of the principal amount outstanding at the time of such refinancing; (d) Subordinated Debt; (e)endorsement of instruments or other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, payment items for deposit; (f) Indebtedness consisting of (i) unsecured guarantees of performance, and guarantees of Indebtedness of a special district entered into incurred in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement with respect to appeal bonds; and (4ii) UHG complies with Section 10.10 below;
unsecured guarantees of Indebtedness of any other Borrower, to the extent that the Borrower that is obligated under such guaranty could have incurred such underlying Indebtedness; (jg) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds incurred in the ordinary course of businessbusiness under performance, surety, statutory, or appeal bonds; provided(h) Indebtedness owed to any Person providing property, howevercasualty, that liability, worker’s compensation, health, disability or other employee benefits insurance, or other insurance to any Borrower, so long as the amount of such Indebtedness is extinguished within five not 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 Indebtedness is incurred and such Indebtedness is outstanding only during such year; (5i) Business Days the incurrence by any Borrower of incurrence;
Indebtedness under Hedging Agreements that are incurred for the bona fide purpose of hedging the interest rate, commodity, or foreign currency risks associated with Borrowers’ operations and not for speculative purposes; (kj) Indebtedness arising in connection with endorsement of instruments for deposit incurred in the ordinary course of business; and
(l) so long as no Default business in respect of credit cards, credit card processing services, debit cards, or Event of Default exists or would result therefrom at the time incurredcash management services, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of provided that such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount Fifty Thousand Dollars ($50,000) in the aggregate at any one time; (iik) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted owed to this Agreement, (iv) the Fair Market Value Lender or any Affiliate of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of Lender; and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.unsecured Indebtedness owed by one Borrower to another.
Appears in 1 contract
Sources: Loan and Security Agreement (Western Acquisition Ventures Corp.)
Permitted Indebtedness. The Borrower shall notIndebtedness to Lender in connection with the Revolving Credit, and shall not permit any Subsidiary to, create, incur Letters of Credit or suffer otherwise pursuant to exist any Indebtedness, except:
(a) the Obligations;
Loan Documents; (b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; providedunder Hedging Agreements, however, that provided such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district Hedging Agreements are entered into in the ordinary course of business and not for speculative purposes; (in each case other than for an obligation for money borrowed);
(ic) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds trade payables incurred in the ordinary course of Borrower's business; provided(d) purchase money Indebtedness (including Capitalized Lease Obligations) hereafter incurred by Borrower to finance the purchase of fixed assets; provided that, however, that (i) such Indebtedness is extinguished within five incurred in any fiscal year shall not exceed $250,000, (5ii) Business Days such Indebtedness shall not exceed the purchase price of incurrence;
the assets funded and (kiii) no such Indebtedness may be refinanced for a principal amount in excess of the principal amount outstanding at the time of such refinancing; (e) Indebtedness arising existing on the Closing Date that is identified and described on Schedule 1.1(a) attached hereto and made part hereof, (f) Subordinated Debt and (g) secured Indebtedness of Qualytextil, S.A. not to exceed $5,000,000, in connection the aggregate. Permitted Investments - (a) investments and advances existing on the Closing Date that are disclosed on Schedule 5.10(a), (b) (i) obligations issued or guaranteed by the United States of America or any agency thereof, (ii) commercial paper with endorsement maturities of instruments for not more than 180 days and a published rating of not less than A-1 or P-1 (or the equivalent rating) by a nationally recognized investment rating agency, (iii) certificates of time deposit and bankers’ acceptances having maturities of not more than 180 days and repurchase agreements backed by United States government securities of a commercial bank if (A) such bank has a combined capital and surplus of at least $500,000,000, or (B) its debt obligations, or those of a holding company of which it is a Subsidiary, are rated not less than A (or the equivalent rating) by a nationally recognized investment rating agency, (iv) U.S. money market funds that invest solely in obligations issued or guaranteed by the United States of America or an agency thereof; (c) additional loans and advances to, and equity investments in, the Non-Domestic Subsidiaries, made after July 31, 2009, not to exceed $7,500,000, in the aggregate, during the term of the Loans, subject to compliance with Section 6.17 hereof; (d) Permitted Acquisitions; (e) investments by any Material Non-Domestic Subsidiary which is a First-Tier Subsidiary to any other Material Non-Domestic Subsidiary, not to exceed $3,500,000 during the term of this Agreement; and (f) investment-grade investments by any Material Non-Domestic Subsidiary made in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured its business and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance accordance with the financial covenants set forth in Section 10.1 at the time of Borrower’s guidelines and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementprocedures.
Appears in 1 contract
Sources: Loan and Security Agreement (Lakeland Industries Inc)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (a) the Obligations;
collectively, “Permitted Indebtedness”): (b) [intentionally deleted];
(ci) Indebtedness existing on under the Agreement Loan Documents, (ii) Capitalized Lease Obligations incurred after the Closing Date which and secured only by the equipment being leased pursuant to such Capitalized Lease Obligations; (iii) Indebtedness is described incurred pursuant to purchase money Liens, provided that the aggregate amount thereof outstanding at any time shall not exceed $350,000, (iv) Indebtedness in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into connection with advances made by a stockholder in respect order to cure any default of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerfinancial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations pursuant and to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated all of Lender’s rights and in form and substance satisfactory to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
Lender; (fv) trade accounts payable to trade creditors and accrued expenses arising or occurring in the ordinary course of business;
current operating expenses; (gvi) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent borrowings incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade business and not exceeding $5,000 individually or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of businessaggregate outstanding at any one time; provided, however, that such Indebtedness is extinguished within five shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of the Lender’s rights and in form and substance satisfactory to Lender; (5) Business Days of incurrence;
(kvii) Indebtedness arising identified on Schedule 7.2, (vii) Mezzanine Debt, (viii) Indebtedness incurred in connection with endorsement a Permitted Acquisition, including (A) Capital Leases existing at the closing of instruments for deposit such Permitted Acquisition and assumed or retained by a Borrower or (B) unsecured and subordinated Indebtedness in favor of a seller issued in such Permitted Acquisition, so long as all of the consideration paid or incurred in connection with such Permitted Acquisition are in compliance with the consideration limitations set forth in the definition of “Permitted Acquisition”; (ix) Indebtedness consisting of the financing of insurance premiums arising in the ordinary course of business; and
(lx) any other Indebtedness that Lender may expressly consent to in writing prior to its incurrence, which consent shall be in the sole discretion of Lender, and (xi) any extension, renewal or replacement of any of the foregoing on terms and conditions that are, on the whole, no more onerous to Borrower than the terms and conditions applicable immediately before such extension, renewal or replacement, so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (iiA) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times increased above the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and outstanding immediately after prior to giving effect to any such extension, renewal or replacement, and (B) to the extent that the Indebtedness be extended, renewed or replaced is subordinated debt, such extension, renewal or replacement continues to be subordinated to the Obligations pursuant to the applicable Subordination Agreement. Notwithstanding the foregoing, Borrower shall incur no Indebtedness if the incurrence of such Other IndebtednessIndebtedness will, and (vi) no covenants directly or indirectly, cause a Default or an Event of Default under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement. Borrower shall not make prepayments on an existing or future Indebtedness to any Person other than to Lender or to the extent specifically permitted by this Agreement or any subsequent agreement between Borrower and Lender.
Appears in 1 contract
Sources: Credit and Security Agreement (Selway Capital Acquisition Corp.)
Permitted Indebtedness. The Neither Borrower shall not, and shall not permit nor any Subsidiary to, will create, incur or suffer to exist any Indebtedness, except, without duplication and without duplication as to Borrower and Subsidiaries:
(a) the The Obligations;
(b) [intentionally deleted];
(c) Unsecured Indebtedness existing on the Agreement Date which Indebtedness is and described in on Schedule 7.1(g) attached hereto;
(dc) Derivatives Contracts entered into in respect of the Obligations;
(ed) Indebtedness of a Borrower owed to another Borrowera Subsidiary Guarantor, Indebtedness of a Subsidiary Guarantor owed to Borrower and Indebtedness of a Subsidiary Guarantor owed to a Subsidiary Guarantor; provided, however, that (a) any Indebtedness of Borrower owed to a Subsidiary Guarantor is unsecured and subordinated to Borrower’s Obligations hereunder in a manner satisfactory to Administrative Agent, and (b) upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness is (i) unsecured and (ii) subordinated being owed to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument any Person other than Borrower or a separate written agreementSubsidiary Guarantor, in each caseBorrower or such Subsidiary Guarantor hereunder, that is approved as applicable, shall be deemed to have incurred Indebtedness not permitted by Administrative Agent in its reasonable discretionthis clause (d);
(fe) trade Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(f) Indebtedness with respect to Letters of Credit;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of Borrower’s or any BorrowerSubsidiary’s business;
(h) performance Performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) Indebtedness arising under a guarantee of indebtedness of any Joint Venture (provided that such guarantee shall be deemed to be an investment in such Joint Venture and subject to the Convertible Debt, so long as limitations in clause (1e) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms definition of this Agreement Permitted Investments and (4Section 10.1(e) UHG complies with Section 10.10 belowhereof);
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and;
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, i) Capitalized Lease Obligations and (ii) Non-Recourse Indebtedness secured by purchase money Liens on any Guarantee Property (other than any Borrowing Base Property) hereafter acquired or the assumption of any Lien on Property (other than any Borrowing Base Property) existing at the time of such acquisition (and not created in contemplation of such acquisition), provided that (1) the amount outstanding under clauses (i) and (ii) shall not exceed $500,000 in the aggregate at any time and (2) with respect to Indebtedness incurred under clause (ii) above, (X) any Property securing such Indebtedness shall have been acquired by Borrower or any Subsidiary in the ordinary course of its respective business and the Lien on any such Property shall attach to such asset concurrently or within ninety (90) days after the acquisition thereof, (Y) the amount of such Indebtedness without duplicationshall not exceed such purchase price or cost of any Property securing such Indebtedness, and (Z) each Lien shall attach only to the Property so acquired;
(collectivelym) The Subordinated Convertible Notes, the “Other Indebtedness”); provided that: that (i) the commitment outstanding principal amount of such Other Indebtedness shall does not exceed the Maximum Other Indebtedness Amount $85,000,000 in the aggregate at any time; , (ii) such Other Indebtedness, if secured, Indebtedness is secured by property other than the Collateralunsecured, (iii) such Other Indebtedness is subordinate to the Obligations and (iv) such Indebtedness is not cross-defaulted guaranteed by any Subsidiary Guarantor unless such guaranty is subordinated to this Agreementthe Guarantied Obligations in a manner satisfactory to Administrative Agent in its sole and absolute discretion (including, without limitation, a subordination agreement);
(ivn) the Fair Market Value of such property that secures such Other unsecured Indebtedness, if anyprovided that (A) after giving effect thereto, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be is in compliance with the financial covenants set forth in Section 10.1 at 10.1, (B) the time of and immediately after giving effect to the incurrence maturity date of such Other IndebtednessIndebtedness is at least one (1) year after the Maturity Date, and (viC) any covenants contained in the documents evidencing such indebtedness must be no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those the covenants contained in this Agreement., as determined by Administrative Agent in its sole discretion, and (D) such indebtedness shall not contain any cross default to this Agreement; and
Appears in 1 contract
Sources: Credit Agreement (LGI Homes, Inc.)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(a) the Obligations;
Directly or indirectly, Incur any Indebtedness (bincluding Acquired Indebtedness) [intentionally deleted];
(c) other than Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness Obligations under this Agreement and the other Loan Documents, or issue any shares of a Borrower owed Disqualified Stock and Holdings will not permit any of its Restricted Subsidiaries to another Borrowerissue any shares of Preferred Stock; provided, however, that Holdings and any Restricted Subsidiary may Incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and any Restricted Subsidiary may issue shares of Preferred Stock, in each case if the Term Loan Fixed Charge Coverage Ratio of Holdings and its Restricted Subsidiaries for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is Incurred or such Disqualified Stock or Preferred Stock is issued would have at least 2.00 to 1.00 determined on a pro forma basis (iincluding a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been Incurred, or the Disqualified Stock or Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of such four-quarter period; provided, further, that the aggregate amount of Indebtedness (including Acquired Indebtedness) unsecured that may be Incurred and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations Disqualified Stock or Preferred Stock that may be issued pursuant to the terms of such instrument or a separate written agreement, in each case, foregoing by Restricted Subsidiaries that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness U.S. Domiciled Loan Parties shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; greater of (iix) such Other Indebtedness, if secured, is secured by property other than the Collateral, $125,000,000 and (iiiy) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value 5.0% of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined Consolidated Total Assets at the time of the incurrence thereofIncurrence, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the any one time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementoutstanding.
Appears in 1 contract
Permitted Indebtedness. The Neither the Borrower shall not, and shall not permit nor any Subsidiary to, will create, incur or suffer to exist any Indebtedness, except, without duplication and without duplication as to the Borrower and Subsidiaries:
(a) the The Obligations;
(b) [intentionally deleted]Unsecured Indebtedness existing on the FourthSixth Amendment Effective Date and described on Schedule 7.1(g) attached hereto;
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(ed) Indebtedness of a the Borrower owed to another Borrowera Subsidiary Guarantor, Indebtedness of a Subsidiary Guarantor owed to the Borrower and Indebtedness of a Subsidiary Guarantor owed to a Subsidiary Guarantor; provided, however, that such (a) any Indebtedness of the Borrower owed to a Subsidiary Guarantor is (i) unsecured and (ii) subordinated to the Borrower’s Obligations pursuant hereunder in a manner satisfactory to Section 13.25 hereof orthe Administrative Agent, if and (b) upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness is evidenced by an instrument, is subordinated being owed to any Person other than the Obligations pursuant to the terms of such instrument Borrower or a separate written agreementSubsidiary Guarantor, in each casethe Borrower or such Subsidiary Guarantor hereunder, that is approved as applicable, shall be deemed to have incurred Indebtedness not permitted by Administrative Agent in its reasonable discretionthis clause (d);
(fe) trade Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(f) Indebtedness with respect to Letters of Credit;
(g) Indebtedness consisting of taxes Taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of the Borrower’s or any BorrowerSubsidiary’s business;
(h) performance Performance bonds, completion bonds, other bonds customarily used by any the Borrower in its trade or business, surety and appeal bonds, guarantees of performance, performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) Indebtedness arising under a guarantee of indebtedness of any Joint Venture (provided that such guarantee shall be deemed to be an investment in such Joint Venture and subject to the Convertible Debt, so long as limitations in clause (1e) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms definition of this Agreement Permitted Investments and (4) UHG complies with Section 10.10 below10.1(e));
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and;
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, i) Capitalized Lease Obligations and (ii) Non-Recourse Indebtedness secured by purchase money Liens on any Guarantee Property (other than any Borrowing Base Property) hereafter acquired or the assumption of any Lien on Property (other than any Borrowing Base Property) existing at the time of such Indebtedness without duplicationacquisition (and not created in contemplation of such acquisition), provided that (1) (collectively, the “Other Indebtedness”); provided that: amount outstanding under clauses (i) the commitment amount of such Other Indebtedness and (ii) shall not exceed the Maximum Other Indebtedness Threshold Amount in the aggregate at any time and (2) with respect to Indebtedness incurred under clause (ii) above, (X) any Property securing such Indebtedness shall have been acquired by the Borrower or any Subsidiary in the ordinary course of its respective business and the Lien on any such Property shall attach to such asset concurrently or within ninety (90) days after the acquisition thereof, (Y) the amount of such Indebtedness shall not exceed such purchase price or cost of any Property securing such Indebtedness, and (Z) each Lien shall attach only to the Property so acquired;
(m) Indebtedness with respect to letters of credit (other than Letters of Credit); provided that (i) the aggregate face amount of such letters of credit does not exceed $10,000,000 at any time; , (ii) such Other Indebtedness, if secured, Indebtedness is unsecured or cash-secured by property other than the Collateral, and (iii) if cash-secured, the cash used to secure such Other Indebtedness is not cross-defaulted excluded (to this Agreement, the extent otherwise included) from the calculations of the Borrowing Base or the financial covenants set forth in Section 10.1;
(ivn) the Fair Market Value of such property that secures such Other Unsecured Indebtedness, if anyprovided that (A) after giving effect thereto, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be is in compliance with the financial covenants set forth in Section 10.1 at 10.1, (B) the time of and immediately after giving effect to the incurrence maturity date of such Other IndebtednessIndebtedness is at least one (1) year after the Maturity Date, and (viC) any covenants contained in the documents evidencing such Indebtedness must be no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those the covenants contained in this Agreement, as determined by the Administrative Agent in its sole discretion, and (D) such Indebtedness shall not contain any cross default to this Agreement;
(o) CDD Debt;
(p) Permitted Deferred Purchase Price Debt, provided that the outstanding principal amount of such Indebtedness does not exceed $25,000,000 at any time;
(q) Senior Notes Indebtedness, provided that (A) after giving pro forma effect to the issuance of such Senior Notes Indebtedness and the use of proceeds therefrom as of the end of the most recently ended fiscal quarter, the Borrower is in compliance with the financial covenants set forth in Section 10.1, (B) the maturity date of such Senior Notes Indebtedness is at least ninety-one (91) days after the Maturity Date, (C) such Senior Notes Indebtedness and Senior Notes Indenture do not contain any financial maintenance covenants, and (D) the Borrower has delivered to the Administrative Agent a certificate of a Responsible Officer certifying to the compliance with clauses (A), (B), and (C) above, and (E) concurrently with the issuance thereof, the Borrower shall have delivered an opinion of counsel (subject to customary exceptions, qualifications and limitations) to the Borrower and the Guarantors, who may be an employee of or counsel to the Borrower and the Guarantors, addressed to the Administrative Agent and the Lenders, to the effect that the issuance of such Senior Notes Indebtedness does not conflict with or violate the terms of this Agreement, the Notes, or the Subsidiary Guaranties; and
(r) Other secured Indebtedness (which, for the avoidance of doubt, excludes the Obligations) that does not in the aggregate exceed six percent (6%) of Tangible Net Worth determined as of the last day of the immediately preceding calendar quarter, so long as (A) any secured permitted Indebtedness (excluding the Obligations) incurred pursuant to this clause (r) shall not be secured by Property constituting Borrowing Base Property, (B) any such Indebtedness incurred pursuant to this clause (r) shall be permitted under the Senior Notes Indenture, (C) any such Indebtedness incurred pursuant to this clause (r) shall not be guaranteed by Borrower or any Subsidiary Guarantor, and (D) the Fair Market Value of the Property that secures such Indebtedness (excluding the Obligations) incurred pursuant to this clause (r) shall not exceed two times the amount of such Indebtedness, determined at the time of the incurrence thereof.
Appears in 1 contract
Sources: Sixth Amendment to Fifth Amended and Restated Credit Agreement (LGI Homes, Inc.)
Permitted Indebtedness. The Borrower shall not, Indebtedness of the Company under this ---------------------- Agreement and shall not permit any Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(a) the Obligations;
Notes; (b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
Company in a principal amount not to exceed $150,000 (e) Indebtedness of a Borrower owed to another Borrowerthe "Basket Amount"); provided, however, that such during any -------- ------- period when the Company maintains Consolidated Tangible Net Worth of at least $1,650,000, the Basket Amount shall be $300,000; (c) Indebtedness is (i) unsecured of the Company and (ii) subordinated its Subsidiaries with respect to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms endorsement of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than negotiable instruments for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds collection in the ordinary course of business; (d) the obligations of the Company under the Affiliated Lease to make rental payments equal to the principal and interest payments due under the Secured Promissory Note, dated July 22, 1987 (the "Loan Note") from the Partnership to Shawmut Home Bank (as predecessor to Connecticut National Bank (the "Bank")), as amended by the Agreement, dated September 25, 1990, among the Company, the Partnership and the Bank, and under any extension, renewal, modification or refinancing of the loan evidenced by the Loan Note, provided that the prinicipal amount outstanding at the time of any such extension, renewal, modification or refinancing is not increased; and (e) Intercompany Debt Obligations of the Company and each of its wholly owned Subsidiaries, provided, however, that such Indebtedness is extinguished within five (5) Business Days the obligation of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee each -------- ------- obligor of such Indebtedness without duplicationshall be subordinated in right of payment from and after such time as the Notes shall become due and payable (whether at stated maturity, by acceleration or otherwise) (collectively, to the “Other Indebtedness”); provided that: (i) the commitment amount payment and performance of such Other Indebtedness shall not exceed Obligor's obligations under this Agreement and the Maximum Other Indebtedness Amount in Notes and the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value Board of Directors of such property that secures such Other Indebtedness, if any, obligor shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after have adopted resolutions giving effect to the incurrence requirement of this proviso and such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) resolutions shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementfull force and effect.
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (Information Management Associates Inc)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (collectively, “Permitted Indebtedness”): (a) Indebtedness under the Obligations;
Loan Documents, (b) [intentionally deleted];
any Indebtedness set forth on Schedule 7.2 or arising after the date hereof pursuant to commitments set forth in Schedule 7.2 and any refunding or renewals thereof which do not increase the principal amount of such Indebtedness; (c) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness existing on incurred pursuant to purchase money Liens permitted by Section 7.3(e); provided, that the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
aggregate amount thereof outstanding at any time shall not exceed $1,000,000, (d) Derivatives Contracts entered into in respect of current liabilities (other than for borrowed money) to the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is extent (i) unsecured incurred in the ordinary course of business consistent with past practices and (ii) subordinated discharged or satisfied at or before the due date for payment (subject to ordinary course payment practices), unless the Obligations pursuant to Section 13.25 hereof orsame are being contested in good faith and by appropriate and lawful proceedings and such reserves, if such Indebtedness is evidenced any, with respect thereto as are required by an instrumentGAAP and deemed adequate by Borrower’s independent accountants shall have been reserved, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(fe) trade accounts payable and accrued expenses arising or occurring borrowings incurred in the ordinary course of business;
, (f) other indebtedness in an amount not exceeding $1,000,000 individually or in the aggregate outstanding at any one time; (g) indemnities under Government Contracts, (h) Subordinated Debt in an amount not to exceed $10,000,000 at any one time outstanding, (i) Indebtedness consisting of taxes payable, and obligations in with respect of customer deposits, all to financed insurance premiums to the extent incurred in the ordinary course of any Borrower’s business;
not past due, (hj) performance bonds, completion bonds, other bonds customarily used Contingent Obligations undertaken by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of with respect to the Indebtedness of a special district entered into in any other Borrower, to the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long extent such Indebtedness is permitted hereunder as (1) [intentionally deleted]set forth on Schedule 7.2, (2k) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement intercompany debt between or among Borrowers hereto and (4l) UHG complies reimbursement obligations with Section 10.10 below;
(j) Indebtedness arising from the honoring respect to letters of credit that are secured by a bank or other financial institution of a checkcash collateral accounts, 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 in each case under this Section 7.2, all such Indebtedness is extinguished within five (5) Business Days shall be on an unsecured basis, except for Permitted Liens relating to money borrowed which shall be subordinated in right of incurrence;
(k) repayment and remedies to all of the Obligations and to all of the Lenders’ rights in form and substance satisfactory to Agent. Borrower shall not make prepayments on any existing or future Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, to any Person other unsecured and secured debt (includingthan to Agent, for the avoidance benefit of doubtLenders, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect or to the incurrence of such Other Indebtednessextent specifically permitted by this Agreement or any subsequent agreement between Borrower, Agent and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this AgreementLenders.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (America Service Group Inc /De)
Permitted Indebtedness. The Borrower Neither Obligor shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (a) the Obligations;
collectively, “Permitted Indebtedness”): (b) [intentionally deleted];
(ci) Indebtedness existing under the Debenture Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Agreement Closing Date which and Indebtedness is described incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate amount of such Capitalized Lease Obligations and purchase money indebtedness outstanding at any time shall not exceed $150,000, (iv) Indebtedness in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into connection with advances made by a stockholder in respect order to cure any default of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerfinancial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations and to all of Debenture Holder’s rights pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated a subordination agreement in form and substance satisfactory to Debenture Holder; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the Obligations pursuant to billing date or more than 30 days from the terms of such instrument or a separate written agreementdue date, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of any Borrower’s business;
business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by the Obligors’ independent accountants shall have been reserved; (hvi) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into borrowings incurred in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank not exceeding $80,000 individually 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; aggregate outstanding at any one time, provided, however, that such Indebtedness is extinguished within five shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Debenture Holder’s rights pursuant to a subordination agreement in form and substance satisfactory to Debenture Holder; (5vii) Business Days of incurrence;
Permitted Subordinated Debt and (kviii) Indebtedness arising in connection with endorsement of instruments for deposit in under the ordinary course of business; and
(l) so long as no Default Credit Agreement. Neither Obligor shall make prepayments on any existing or Event of Default exists or would result therefrom at the time incurred, future Indebtedness to any Person other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: than (i) to Capital Source in accordance with the commitment amount terms of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; Credit Agreement, (ii) such Other Indebtednessto Seller subject to the terms of the Master Subordination Agreement , if secured, is secured by property other than the Collateral, or (iii) such Other Indebtedness is not cross-defaulted to this Agreement, the Debenture Holder subject to the terms of the Master Subordination Agreement and the Junior Subordination Agreement or (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in extent specifically permitted by this Agreement.
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (a) the Obligations;
collectively, “Permitted Indebtedness”): (b) [intentionally deleted];
(ci) Indebtedness existing under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the Agreement Date which aggregate amount of such Capitalized Lease Obligations and purchase money indebtedness outstanding at any time shall not exceed $250,000, (iv) Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into connection with advances made by a stockholder in respect order to cure any default of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerfinancial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations and to all of Lender’s rights pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the Obligations pursuant to billing date or more than 30 days from the terms of such instrument or a separate written agreementdue date, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of any business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s business;
independent accountants shall have been reserved; (hvi) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into borrowings incurred in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank not exceeding $10,000 individually 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 businessaggregate outstanding at any one time; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (vii) intercompany Indebtedness among Borrowers only, provided that each Borrower remains Solvent after giving effect thereto; (viii) Permitted Subordinated Debt; and (ix) financing of insurance premiums of Borrower which Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness less than $2,500,000 at all times. Borrower shall not exceed the Maximum Other make prepayments on any existing or future Indebtedness Amount in the aggregate at to any time; (ii) such Other Indebtedness, if secured, is secured by property Person other than to Lender or to the Collateral, (iii) such Other Indebtedness is not cross-defaulted to extent specifically permitted by this Agreement, (iv) the Fair Market Value terms of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the any applicable Subordination Agreement or any subsequent agreement between Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this AgreementLender).
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (World Health Alternatives Inc)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur Indebtedness to Lender in connection with the Revolving Credit or suffer otherwise pursuant to exist any Indebtedness, except:
(a) the Obligations;
Loan Documents; (b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date which Indebtedness under an Other Interest Rate Hedging Instrument provided such Other Interest Rate Hedging Instrument is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business and not for speculative purposes and is in form and substance acceptable to Lender; (in each case other than for an obligation for money borrowed);
(ic) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds trade payables incurred in the ordinary course of Borrower’s business; provided(d) purchase money Indebtedness (including Capitalized Lease Obligations) hereafter incurred by Borrower to finance the purchase of fixed assets; provided that, however, that (i) such Indebtedness is extinguished within five incurred in any fiscal year shall not exceed $500,000.00, (5ii) Business Days such Indebtedness shall not exceed the purchase price of incurrence;
the assets funded and (kiii) no such Indebtedness may be refinanced for a principal amount in excess of the principal amount outstanding at the time of such refinancing, (e) Indebtedness arising existing on the Closing Date that is identified and described on Schedule 1.1(a) attached hereto and made part hereof. Permitted Investments - (a) investments and advances existing on the Closing Date that are disclosed on Schedule 5.10(a), and (b) (i) obligations issued or guaranteed by the United States of America or any agency thereof, (ii) commercial paper with maturities of not more than 180 days and a published rating of not less than A-1 or P-1 (or the equivalent rating) by a nationally recognized investment rating agency, (iii) certificates of time deposit and bankers’ acceptances having maturities of not more than 180 days and repurchase agreements backed by United States government securities of a commercial bank if (A) such bank has a combined capital and surplus of at least $500,000,000, or (B) its debt obligations, or those of a holding company of which it is a Subsidiary, are rated not less than A (or the equivalent rating) by a nationally recognized investment rating agency, and (iv) U.S. money market funds that invest solely in connection with endorsement obligations issued or guaranteed by the United States of instruments for deposit America or an agency thereof. Permitted Liens - (a) Liens securing taxes, assessments or governmental charges or levies not delinquent; (b) Liens incurred or deposits made in the ordinary course of businessbusiness in connection with workers’ compensation, unemployment insurance, social security and other like laws; and
(lc) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Liens on fixed assets security purchase money Indebtedness without duplication) (collectively, the “Other Indebtedness”)permitted under Section 7.6; provided that: , (i) such Lien attached to such assets concurrently, or within 20 days of the commitment amount of such Other Indebtedness shall not exceed acquisition thereof, and only to the Maximum Other Indebtedness Amount in the aggregate at any time; assets so acquired, and (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time a description of the incurrence thereof, asset acquired is furnished to Lender; (vd) Liens existing on the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of Closing Date and immediately after giving effect to the incurrence of such Other Indebtedness, shown on Schedule 1.1(b) attached hereto and made part hereof and (vie) no covenants under Liens in favor of Lender securing the Obligations. Person - An individual, partnership, corporation, trust, limited liability company, limited liability partnership, unincorporated association or organization, joint venture or any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementother entity.
Appears in 1 contract
Permitted Indebtedness. The Borrower For purposes of determining compliance with this Section 6.1, (x) the outstanding principal amount of any Indebtedness shall notbe counted only once such that (without limitation) any obligation arising under any Guarantees or obligations with respect to letters of credit supporting Indebtedness otherwise included in the determination of such particular amount shall not be included and (y) except as provided above, in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described above, including categories of Permitted Indebtedness and Section 6.1(a), Borrower, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Indebtedness and such Indebtedness need not be permitted solely by reference to one provision of this Section 6.1 but may be permitted in part by one such provision and in part by one or more other provisions of this Section 6.1. Notwithstanding anything to this Section 6.1 or in the definition of “Permitted Indebtedness”, (i) no Indebtedness shall not permit be Incurred under any Subsidiary to, create, incur ABL Credit Agreement or suffer the Solus Credit Agreement except pursuant to exist any Indebtedness, except:
and in compliance with clause (a) the Obligations;
or clause (b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect b)(ii), respectively, of the Obligations;
(e) Indebtedness definition of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured “Permitted Indebtedness” and (ii) subordinated no Solus Obligations shall be considered to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease be ABL Obligations and any Guarantee the Solus Credit Agreement shall not be considered an ABL Credit Agreement. The accrual of such Indebtedness without duplication) (collectivelyinterest, the “Other Indebtedness”); provided that: (i) accretion or amortization of original issue discount and the commitment amount payment of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other interest on Indebtedness in the aggregate, determined at forms of additional Indebtedness or payment of dividends on Stock in the time forms of the incurrence thereof, (v) the Borrower shall be in compliance additional shares of Stock with the financial covenants set forth same terms and changes in Section 10.1 at the time of and immediately after giving effect amount outstanding due solely to the incurrence result of such Other Indebtedness, and (vi) no covenants under any such Other fluctuations in the exchange rates of currencies will not be deemed to be an Incurrence of Indebtedness incurred pursuant to or issuance of Stock for purposes of this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this AgreementSection 6.1.
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary Shall refer to, create, incur or suffer to exist any Indebtedness, except:
(a) any Indebtedness owing to the Agent and the Lenders under this Agreement and the other Loan Documents;
(b) any Indebtedness listed on SCHEDULE 7.2, and the extension of maturity, refinancing or modification of the terms thereof; provided, however, that (i) such extension, refinancing or modification is pursuant to terms that are not less favorable to the Borrower and the Banks than the terms of the Indebtedness being extended, refinanced or modified and (ii) after giving effect to the extension, refinancing or modification, such Indebtedness is not greater than the amount of Indebtedness outstanding immediately prior to such extension, refinancing or modification;
(c) Indebtedness evidenced by Capitalized Lease Obligations entered into in order to finance Capital Expenditures made by the Borrower in accordance with the provisions of ss.7.7, which Indebtedness, when aggregated with the principal amount of all Indebtedness incurred under this clause (c) and clause (d) of this definition, does not exceed $500,000 in any calendar year;
(d) Indebtedness permitted by clause (e) of the definition of "Permitted Lien";
(e) Indebtedness permitted under ss.7.5;
(f) Indebtedness evidenced by the promissory notes issued to the Senior Lenders under the Senior Debt Facility,
(g) Indebtedness evidenced by the Seller Subordinated Notes and any other Subordinated Indebtedness; and
(h) Contingent Obligations of the Borrower or any of its Subsidiaries in respect of any liability, Indebtedness or other obligations of the Borrower or its Subsidiaries otherwise permitted hereunder.
(i) Marketable direct obligations issued or unconditionally guaranteed by the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within six months from the date of acquisition thereof; (ii) commercial paper, maturing not more than 270 days after the date of issue rated P-1 by Mood▇'▇ ▇▇▇estors Service, Inc. or A-1 by Standard & Poor's Corporation; (iii) certificates of deposit maturing not more than 270 days after the date of issue, issued by commercial banking institutions and money market or demand deposit accounts maintained at commercial banking institutions, each of which is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000; (iv) repurchase agreements having maturities of not more than 90 days from the date of acquisition which are entered into with major money center banks included in the commercial banking institutions described in clause (iii) above and which are secured by readily marketable direct obligations of the Government of the United States of America or any agency thereof, (v) money market accounts maintained with mutual funds having assets in excess of $2,500,000,000, and (vi) tax exempt securities rated A or better by Mood▇'▇ ▇▇▇estors Service, Inc. or A+ or better by Standard & Poor's Corporation. PERMITTED LIENS. Shall refer to:
(a) Liens securing the Obligations;
(b) [intentionally deleted]Liens for taxes, assessments and governmental charges the payment of which is not required under ss.6.5;
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; providedLiens imposed by law, howeversuch as carriers', that such Indebtedness is (i) unsecured warehousemen's, mechanics', materialmen's and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses other similar Liens arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business and securing obligations (in each case other than Indebtedness for an obligation for money borrowed)borrowed money) that are not overdue by more than 30 days or are being contested in good faith and by appropriate proceedings promptly initiated and diligently conducted, and a reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor;
(i) Liens described on SCHEDULE 7.1, but not the Convertible Debtextension of coverage thereof to other property or the extension of maturity, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) refinancing or other modification of the terms and conditions thereof or the increase of the Convertible Debt are no more restrictive than the terms of this Agreement Indebtedness secured thereby, and (4ii) UHG complies with Section 10.10 belowLiens securing the Indebtedness of the Borrower and its Subsidiaries under the Senior Debt Facility;
(ji) Indebtedness arising from the honoring purchase money Liens on equipment acquired or held 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 any Borrower in the ordinary course of businessits business to secure the purchase price of such equipment or Indebtedness incurred solely for the purpose of financing the acquisition of such equipment or (ii) Liens existing on such equipment at the time of its acquisition; providedPROVIDED, howeverHOWEVER, that (A) no such Lien shall extend to or cover any other property of the Borrower or any of its Subsidiaries and (B) the aggregate principal amount of Indebtedness is extinguished within five (5) Business Days of incurrence;secured by any or all such Liens shall not exceed at any one time outstanding $100,000.
(kf) Indebtedness arising deposits and pledges securing (i) obligations incurred in connection with endorsement respect of instruments workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, (ii) the performance of bids, tenders, leases, contracts (other than for deposit the payment of money) and statutory obligations or (iii) obligations on surety or appeal bonds, but only to the extent such deposits or pledges are incurred or otherwise arise in the ordinary course of business and secure obligations not past due;
(g) easements, zoning restrictions and similar encumbrances on real property and minor irregularities in the title thereto that do not (i) secure obligations for the payment of money or (ii) materially impair the value of such property or its use by the Borrower or any of its Subsidiaries in the normal conduct of such Person's business; and
(lh) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Liens securing Indebtedness evidencing Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplicationdescribed under subsection (c) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time definition of and immediately after giving effect to the incurrence of such Other Permitted Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.
Appears in 1 contract
Sources: Restructuring Agreement (Outsource International Inc)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur or suffer to exist any definition of “Permitted Indebtedness, except:
” in Section 1.1 of the Credit Agreement is hereby amended by (a) deleting “$50,000,000” from clause (w) thereof and replacing it with “the Obligations;
Term Loan Debt Amount”, and (b) [intentionally deleted];
deleting the comma appearing at the end of clause (cp) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerthereof and replacing it with following: “; provided, however, that such for purposes of Refinancing Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (lp): (x) to the extent the Borrowers determine to ▇▇▇▇▇ ▇ ▇▇▇▇ to the holders of such Refinancing Indebtedness, (A) clause (h) of the definition of Refinancing Indebtedness shall not apply, (B) the Lien securing such Refinancing Indebtedness shall have a priority junior to the Lien securing the Obligations and (C) such Refinancing Indebtedness shall be more restrictivesubject to an intercreditor agreement in form and substance satisfactory to the Agent and the Required Lenders in their sole discretion (it being understood that such intercreditor agreement shall include a provision that results in all payments on account of such Refinancing Indebtedness being “last out” or subject to turnover to the Lenders until such time as the Obligations have been paid in full in cash; and (y) to the extent the Borrowers determine not to ▇▇▇▇▇ ▇ ▇▇▇▇ to the holders of such Indebtedness, when taken the Refinancing Indebtedness shall have a cash interest expense that is less than or equal to the cash interest expense of the Indebtedness being refinanced; together with reasonably detailed supporting calculations, as a whole, than those covenants contained in this Agreementto the satisfaction clauses (x) and (y) of the immediately preceding proviso.”
Appears in 1 contract
Permitted Indebtedness. The Borrower shall notIndebtedness to Agent, Issuing Bank and shall not permit any Subsidiary to, create, incur Lenders in connection with the Revolving Credit and Letters of Credit or suffer otherwise pursuant to exist any Indebtedness, except:
(a) the Obligations;
Loan Documents; (b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent payables incurred in the ordinary course of any Borrower’s or any Subsidiary Guarantor’s business;
; (hc) performance bondspurchase money Indebtedness (including Capitalized Lease Obligations) hereafter incurred by Borrower or any Subsidiary Guarantor to finance the purchase of fixed assets; provided that, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five incurred in any fiscal year shall not exceed $1,000,000 (5ii) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in purchase price of the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, assets funded and (iii) no such Other Indebtedness is not cross-defaulted to this Agreement, (iv) may be refinanced for a principal amount in excess of the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the principal amount of such Other Indebtedness in the aggregate, determined outstanding at the time of such refinancing; (d) Indebtedness existing on the incurrence thereofClosing Date that is identified and described on Schedule “1.1(a)” attached hereto and made part hereof; (e) Subordinated Debt; (f) Indebtedness of a Fin 46 Entity which is non-recourse to Borrower or any Subsidiary Guarantor; (g) guarantees by Borrower of Indebtedness of a Subsidiary Guarantor so long as such Indebtedness of such Subsidiary Guarantor constitutes Permitted Indebtedness; (h) Indebtedness under Hedging Agreements; (i) Indebtedness of the Post-Merger Parent that is non-recourse to Borrower or any Subsidiary Guarantor, (vj) Indebtedness of ▇▇▇▇▇ Securities Funding that is non-recourse to Borrower or any other Subsidiary Guarantor and (k) Indebtedness related to the Borrower ▇▇▇▇ CDS. Subsidiary Guarantor – Alesco Collateral Holdings I, L.P., Alesco Funding, LLC, Alesco Holdings, Ltd., Alesco Loan Holdings, LLC, Alesco Loan Holdings Trust, Alesco TPS Holdings, LLC, Alesco Warehouse Conduit, LLC, Brigadier Capital Management, LLC, Brigadier GP, LLC, ▇▇▇▇ ECM, LLC, ▇▇▇▇▇ & Compagnie, ▇▇▇▇▇ & Company Funding, LLC, ▇▇▇▇▇ & Company Management, LLC, ▇▇▇▇▇ & Company Ventures, LLC, ▇▇▇▇▇ Asia Investments, Ltd., ▇▇▇▇▇ Bros. Acquisitions, ▇▇▇▇▇ Securities Funding LLC (formerly known as Alesco Securities, LLC), Dekania Capital Management, LLC, Dekania Investors, LLC, EuroDekania Management Limited, Strategos Capital Management, LLC, Sunset Financial Holdings, LLC, Sunset Funding, LLC, Sunset Holdings, Ltd., Sunset Investment Vehicle, LLC, Sunset Loan Holdings Trust, Sunset TPS Holdings, LLC, and any other Person who may hereafter guaranty, as surety, all of the Obligations. Notwithstanding inclusion of each of ▇▇▇▇▇ & Compagnie and EuroDekania Management Limited as a “Subsidiary Guarantor” hereunder, neither of ▇▇▇▇▇ & Compagnie or EuroDekania Management Limited shall be in compliance with required to execute the financial covenants set forth in Section 10.1 at the time of Surety and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Guaranty Agreement or Guaranty Security Agreement.
Appears in 1 contract
Permitted Indebtedness. The Borrower Loan Parties shall not, and shall not permit any Subsidiary to, create, incur incur, become liable for or suffer to exist any Indebtedness, except:
(a) the The Obligations;
(b) [intentionally deleted]Subordinated Debt;
(c) Indebtedness existing described on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto);
(d) Derivatives Contracts entered into Other unsecured and secured Indebtedness (collectively, the “Other Indebtedness”); provided that (i) the principal amount outstanding of such Other Indebtedness shall not exceed ten percent (10.0%) of Tangible Net Worth in respect the aggregate at any time, (ii) such Other Indebtedness contains events of default that are no more favorable to the lender or other holder of such Other Indebtedness than the Events of Default contained in this Agreement; (iii) such Other Indebtedness contains financial covenants in the documents evidencing such other Indebtedness that are no more restrictive than the covenants contained in this Agreement, as determined by the Administrative Agent in its sole discretion, (iv) such Other Indebtedness, if secured, is secured by property other than any Borrowing Base Property, (v) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the Obligationsincurrence thereof, and (vi) at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, the Borrower is in compliance with the financial covenants set forth in this Agreement on a pro forma basis, as evidenced by delivery to the Administrative Agent of a Compliance Certificate;
(e) Indebtedness Derivatives Contracts permitted by Section 10.12 of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretionthis Agreement;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payablePerformance bonds, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance maintenance bonds, completion bonds, other bonds customarily used by any the Borrower in its trade or business, surety and appeal bonds, guarantees of performance, performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(g) Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business not more than thirty (30) days past due;
(h) Indebtedness with respect to Letters of Credit;
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 belowDevelopment completion guarantees under landbank arrangements;
(j) Indebtedness of one Loan Party owed to another Loan Party;
(k) Indebtedness consisting of Taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of the Borrower’s or any Subsidiary’s business;
(l) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(km) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(ln) so long as no Default Indebtedness secured by Liens on aircrafts, vehicles or Event equipment of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount non-Loan Party Subsidiary granted in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value ordinary course of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementbusiness.
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (a) the Obligations;
collectively, “Permitted Indebtedness"): (b) [intentionally deleted];
(ci) Indebtedness existing under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after April 30, 2004 and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the Agreement Date which aggregate amount of such Capitalized Lease Obligations and purchase money indebtedness outstanding at any time shall not exceed $75,000, (iv) Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into connection with advances made by a stockholder in respect order to cure any default of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerfinancial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations and to all of Lender’s rights pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the Obligations pursuant to billing date or more than 30 days from the terms of such instrument or a separate written agreementdue date, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of any business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s business;
independent accountants shall have been reserved; (hvi) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into borrowings incurred in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank not exceeding $10,000 individually 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; aggregate outstanding at any one time, provided, however, that such Indebtedness is extinguished within five shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (5vii) Business Days Permitted Subordinated Debt or Indebtedness to US Bioservices Corporation as permitted under the Joint Venture Dissolution Consent. Borrower shall not make prepayments on any existing or future Indebtedness in excess of incurrence;$10,000 to any Person other than to Lender or to the extent specifically permitted by this Agreement or any subsequent agreement between Borrower and Lender.
(kh) Indebtedness arising in connection with endorsement Section 7.3 of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of entitled “Permitted Liens” is hereby amended and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken restated as a whole, than those covenants contained in this Agreement.follows:
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (NationsHealth, Inc.)
Permitted Indebtedness. The Neither the Borrower shall not, and shall not permit nor any Subsidiary to, will create, incur or suffer to exist any Indebtedness, except, without duplication and without duplication as to the Borrower and Subsidiaries:
(a) the The Obligations;
(b) [intentionally deleted];
(c) Unsecured Indebtedness existing on the Agreement Date which Indebtedness is and described in on Schedule 7.1(g) attached hereto;
(dc) Derivatives Contracts entered into in respect of the Obligations;
(ed) Indebtedness of a the Borrower owed to another Borrowera Subsidiary Guarantor, Indebtedness of a Subsidiary Guarantor owed to the Borrower and Indebtedness of a Subsidiary Guarantor owed to a Subsidiary Guarantor; provided, however, that such (a) any Indebtedness of the Borrower owed to a Subsidiary Guarantor is (i) unsecured and (ii) subordinated to the Borrower’s Obligations pursuant hereunder in a manner satisfactory to Section 13.25 hereof orthe Administrative Agent, if and (b) upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness is evidenced by an instrument, is subordinated being owed to any Person other than the Obligations pursuant to the terms of such instrument Borrower or a separate written agreementSubsidiary Guarantor, in each casethe Borrower or such Subsidiary Guarantor hereunder, that is approved as applicable, shall be deemed to have incurred Indebtedness not permitted by Administrative Agent in its reasonable discretionthis clause (d);
(fe) trade Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(f) Indebtedness with respect to Letters of Credit;
(g) Indebtedness consisting of taxes Taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of the Borrower’s or any BorrowerSubsidiary’s business;
(h) performance Performance bonds, completion bonds, other bonds customarily used by any the Borrower in its trade or business, surety and appeal bonds, guarantees of performance, performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) Indebtedness arising under a guarantee of indebtedness of any Joint Venture (provided that such guarantee shall be deemed to be an investment in such Joint Venture and subject to the Convertible Debt, so long as limitations in clause (1e) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms definition of this Agreement Permitted Investments and (4) UHG complies with Section 10.10 below10.1(e));
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and;
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, i) Capitalized Lease Obligations and (ii) Non-Recourse Indebtedness secured by purchase money Liens on any Guarantee Property (other than any Borrowing Base Property) hereafter acquired or the assumption of any Lien on Property (other than any Borrowing Base Property) existing at the time of such acquisition (and not created in contemplation of such acquisition), provided that (1) the amount outstanding under clauses (i) and (ii) shall not exceed $500,000 in the aggregate at any time and (2) with respect to Indebtedness incurred under clause (ii) above, (X) any Property securing such Indebtedness shall have been acquired by the Borrower or any Subsidiary in the ordinary course of its respective business and the Lien on any such Property shall attach to such asset concurrently or within ninety (90) days after the acquisition thereof, (Y) the amount of such Indebtedness without duplicationshall not exceed such purchase price or cost of any Property securing such Indebtedness, and (Z) each Lien shall attach only to the Property so acquired;
(collectivelym) The Subordinated Convertible Notes, the “Other Indebtedness”); provided that: that (i) the commitment outstanding principal amount of such Other Indebtedness shall does not exceed the Maximum Other Indebtedness Amount $85,000,000 in the aggregate at any time; , (ii) such Other Indebtedness, if secured, Indebtedness is secured by property other than the Collateralunsecured, (iii) such Other Indebtedness is subordinate to the Obligations and (iv) such Indebtedness is not cross-defaulted guaranteed by any Subsidiary Guarantor unless such guaranty is subordinated to this Agreementthe Guaranteed Obligations in a manner satisfactory to the Administrative Agent in its sole and absolute discretion (including, without limitation, a subordination agreement); provided, however, concurrently with the issuance of any Senior Notes Indebtedness in accordance with clause (q) below, the Subordinated Convertible Notes Indenture may be amended or supplemented to eliminate any contractual or other subordination of the Subordinated Convertible Notes to the Obligations, in which event subclauses (iii) and (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, above shall thereafter no longer be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.applicable;
Appears in 1 contract
Sources: Credit Agreement (LGI Homes, Inc.)
Permitted Indebtedness. The Notice Addresses for Administrative Agent, Issuing Lenders, Swingline Lender and Collateral Agent A Form of Security Agreement B Form of Assignment and Assumption C Form of Compliance Certificate C-1 Form of Exemption Certificate C-2 Form of Exemption Certificate C-3 Form of Exemption Certificate C-4 Form of Exemption Certificate D-1 Form of First Lien/Second Lien Intercreditor Agreement D-2 Form of Terms of Intercreditor (pari passu) E Form of Prepayment Notice F-1 Form of Revolving Loan Note F-2 Form of Term Loan Note F-3 Form of Swingline Note G Form of Guarantor Joinder Agreement H Form of Borrowing and Conversion/Continuation Request I Form of Solvency Certificate J Form of Global Intercompany Note K Form of Co-Borrower shall notJoinder L Form of Borrower Assignment FIRST LIEN CREDIT AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”), dated as of August 1, 2018, among PowerSchool Holdings LLC (f/k/a Severin Holdings, LLC), a Delaware limited liability company (“Holdings”), Severin Acquisition, LLC, a Delaware limited liability company (the “Top Borrower”), PeopleAdmin, LLC (f/k/a PeopleAdmin, Inc.), a Delaware ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ liability company (the “PA Borrower”), Promachos Holding, Inc., a Delaware corporation (“PeopleAdmin”) and Performance Matters LLC, a Utah limited liability company (“Performance Matters”), certain other Restricted Subsidiaries (this and each other capitalized term used herein without definition having the meaning assigned to such term in Section 1.1) from time to time designated hereunder as Co-Borrowers (together with the Top Borrower, and shall not permit any the PA Borrower, PeopleAdmin and Performance Matters, each a “Borrower” and, collectively, the “Borrowers”), the Subsidiary to, create, incur or suffer Guarantors from time to exist any Indebtedness, except:
time party hereto (a) the Obligations;
(b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness including through delivery of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, Guarantor Joinder Agreement in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than accordance with the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectivelyAgreement), the several banks, financial institutions, institutional investors and other entities from time to time party hereto as lenders (the “Other IndebtednessLenders”); provided that: (i) , the commitment amount of such Other Indebtedness shall not exceed Issuing Lenders from time to time party hereto, the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other IndebtednessSwingline Lender and Barclays Bank PLC, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this AgreementAdministrative Agent.
Appears in 1 contract
Sources: Incremental and Refinancing Amendment (Powerschool Holdings, Inc.)
Permitted Indebtedness. The Borrower shall notNotwithstanding subsection 6.3A, the Company may Incur any or all of the following Indebtedness and shall not permit any Subsidiary to, create, incur or suffer to exist any Indebtedness, exceptthe Holding Co. may Incur the Indebtedness described in clauses (i) and (viii) below:
(ai) the Obligations;
(bii) [intentionally deleted];
(c) the Indebtedness existing on the Agreement Closing Date which Indebtedness is and described in on Schedule 7.1(g) 6.3 annexed hereto;
(diii) Derivatives Contracts entered into Capital Leases of Equipment and purchase money secured Indebtedness Incurred to purchase Equipment; provided that the Liens securing such Capital Leases and purchase money secured Indebtedness shall attach only to the Equipment acquired by the Incurrence of such Capital Leases and purchase money secured Indebtedness and provided that such Capital Leases and purchase money Indebtedness shall not exceed $20,000,000 in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borroweraggregate at any time outstanding; provided, however, no more than $5,000,000 may be Incurred in connection with Capital Leases of Equipment and purchase money secured Indebtedness Incurred to purchase Equipment unrelated to long term service agreements entered into with certain third party providers for the use of pipelines to be constructed by such third parties between the Houston Facility and long term customers;
(iv) Indebtedness owing by a Loan Party (other than Holding Co., GP Parent or Limited Partner to another Loan Party) to another Loan Party for inter-company loans and advances made for working capital in the ordinary course of business provided, that the Loan Parties shall, and shall cause their respective Subsidiaries, to cause all Indebtedness and other obligations now or hereafter owed by it to any of its Affiliates, to be subordinated in right of payment and security to the Indebtedness and other Obligations owing to the Administrative Agent and the Lenders in accordance with a subordination agreement in form and substance satisfactory to the Lenders;
(v) Guaranties of Indebtedness which are permitted hereunder, so long as any such Guaranties are not secured by Liens on any personal, real or mixed property of the Loan Parties or any of the Company's Subsidiaries (and in no event are Guaranties of Indebtedness is or any other obligations for the direct or indirect benefit of any of the Unrestricted Subsidiaries permitted);
(vi) Indebtedness under the Revolving Credit Agreement in a principal amount which does not exceed the lesser of $60,000,000 and the sum of (A) 65% of the book value of the Inventory of the Company and its Subsidiaries and (B) 85% of the book value of the Receivables of the Company and its Subsidiaries;
(vii) Indebtedness in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such Incurrence (other than Indebtedness permitted by clauses (i) unsecured through (vi) above) does not exceed $10,000,000 at any one time outstanding and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, that is subordinated to the Obligations pursuant on terms reasonably satisfactory to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretionand Documentation Agent and is not secured by Liens on any personal, real or mixed property of any of the Loan Parties or any of the Company's Subsidiaries;
(viii) Indebtedness which refinances in whole or in part the Senior Subordinated Notes or the Senior Discount Notes so long as: (a) the cash and non-cash interest rate payable with respect thereto does not exceed the cash and non-cash interest rate payable with respect thereto prior to such refinancing and there are no obligors for such Indebtedness other than the existing obligors with respect to the Indebtedness being refinanced, (b) interest with respect thereto is not payable more frequently than under the Senior Subordinated Notes or the Senior Discount Notes, as the case may be, (c) no principal of such Indebtedness is due or payable prior to the maturity date thereof, (d) the maturity date of such Indebtedness is no earlier than the July 1, 2006, (e) such Indebtedness is subordinated to the Indebtedness of such Loan Party under the Loan Documents pursuant to subordination provisions which are no less favorable to the Lenders than the subordination provisions existing with respect thereto on the Closing Date, as determined by the Administrative Agent and the Documentation Agent in each of their sole discretion, and (f) trade accounts payable such Indebtedness is otherwise on terms and accrued expenses arising or occurring conditions (including, without limitation, payment terms, covenants, remedies, defaults and other material terms) no less favorable than those contained in the ordinary course Senior Subordinated Note Indenture or the Senior Discount Note Indenture, as the case may be, as determined by the Administrative Agent and the Documentation Agent in each of businesstheir sole discretion; and
(ix) Obligations in existence on the Closing Date that become Indebtedness due to a change in GAAP after the Closing Date;
(gx) Indebtedness consisting resulting from any Hedging Obligations for the purpose of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into hedging in the ordinary course of business (and not for speculative purposes) consistent with past practices against fluctuations in each case other than for an obligation for money borrowed);
(i) the Convertible Debtcommodity prices, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days not secured by any Liens on any property or assets of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of businessLoan Parties or their respective Subsidiaries; and
(lxi) so long as no Default or Event the Net Cash Proceeds are applied to prepay the Loans in accordance with the provisions of Default exists or would result therefrom at the time incurredsubsection 2.4B(ii)(d), other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Subordinated Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect an aggregate amount not to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementexceed $20,000,000.
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not, and Obligors shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (a) the Obligations;
collectively, "Permitted Indebtedness"): (b) [intentionally deleted];
(ci) Indebtedness existing under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Agreement Closing Date which and Indebtedness is described incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate amount of such Capitalized Lease Obligations and purchase money indebtedness outstanding at any time shall not exceed $50,000, (iv) Indebtedness in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into connection with advances made by a stockholder in respect order to cure any default of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerfinancial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations and to all of Lender's rights pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the Obligations pursuant to billing date or more than 30 days from the terms of such instrument or a separate written agreementdue date, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent case incurred in the ordinary course of any Borrower’s business;
business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Obligors' independent accountants shall have been reserved; (hvi) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into borrowings incurred in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank not exceeding $25,000 individually 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; aggregate outstanding at any one time, provided, however, that such Indebtedness is extinguished within five (5) Business Days shall be on an unsecured basis, subordinated in right of incurrence;
(k) Indebtedness arising in connection with endorsement repayment and remedies to all of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and to all of Lender's rights pursuant to a subordination agreement in form and substance satisfactory to Lender ; and (vii) Permitted Subordinated Debt. Obligors shall not make prepayments on any Guarantee of such existing or future Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: to any Person other than (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; to Lender, (ii) such Other Indebtednessto the extent permitted by the Subordination Agreement, if secured, is secured by property other than the Collateral, or (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, extent specifically permitted by this Agreement or any subsequent agreement between Obligors and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this AgreementLender.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Sunset Brands Inc)
Permitted Indebtedness. The No Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any IndebtednessIndebtedness for Borrowed Money, except:
except the following (collectively, "PERMITTED INDEBTEDNESS"): (a) Indebtedness under the Obligations;
Loan Documents; (b) [intentionally deleted];
the Senior Mortgage Loan; (c) any Indebtedness existing set forth on Schedule 7.2 and any Indebtedness which refinances or replaces such Indebtedness to the Agreement Date extent such refinanced Indebtedness does not increase the total principal amount thereof, extend the maturity date, accelerate the amortization or is otherwise on terms and conditions which Indebtedness is described in Schedule 7.1(g) hereto;
are not materially more onerous to the Borrowers ("Permitted Refinanced Indebtedness"); (d) Derivatives Contracts entered into in (i) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v) and any Permitted Refinanced Indebtedness with respect thereto, provided that the aggregate amount thereof outstanding at any time shall not exceed $5,000,000; and (ii) Indebtedness on a non-recourse (other than customary carve-outs for non-recourse financings) basis to any assets of any Borrower or any Guarantor other than the Obligations;
asset or assets that are collateral securing such Indebtedness and which is secured by a Lien permitted pursuant to Section 7.3(v) and any Permitted Refinancing Indebtedness with respect thereto; provided that the aggregate amount outstanding at any time shall not exceed $30,000,000; (e) Indebtedness in connection with advances made by a stockholder in order to cure any default of a Borrower owed to another Borrowerthe financial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations pursuant and to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated all of Agent's rights and in form and substance reasonably satisfactory to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
Agent; (f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent borrowings incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade business and not exceeding $10,000,000 individually or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of businessaggregate outstanding at any one time; provided, however, that such Indebtedness is extinguished within five shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Agent's rights and in form and substance satisfactory to Agent; (5) Business Days of incurrence;
(kg) Indebtedness from time to time owing to any Borrower; (h) Indebtedness of any Borrower arising in connection with endorsement out of instruments for deposit an Interest Rate Agreement entered into in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) Indebtedness constituting Priority Claims; (j) Indebtedness in respect of insurance premiums payable to the commitment Insurance Subsidiary in an aggregate amount not to exceed $10,000,000 and (k) additional unsecured Indebtedness in the ordinary course of business in an aggregate amount not to exceed $2,000,000. Notwithstanding anything in this Section 7.2 or this Agreement to the contrary, the aggregate amount of Indebtedness for Borrowed Money of Borrowers on a Consolidated Basis, exclusive of the Obligations and the "Obligations" as such Other Indebtedness term is defined in the Revolving Loan A Agreement, shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness $255,000,000 in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Skilled Healthcare Group Inc)
Permitted Indebtedness. The Borrower shall notCreate, and shall not permit any Subsidiary toincur, create, incur guarantee or suffer to exist any Indebtedness, except:except the following (collectively, “Permitted Indebtedness”):
(a) the Obligations;
(b) [intentionally deleted]Subordinated Debt in an aggregate principal amount not to exceed $5,000,000;
(c) Permitted Purchase Money Debt and Capital Lease Obligations; provided that the aggregate amount of all Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(gincurred under this clause (c) heretodoes not exceed $15,000,0002,000,000 at any time;
(d) Derivatives Contracts entered into in respect (i) Indebtedness outstanding on the ClosingAmendment No. 3 Effective Date, and listed on Schedule 10.2.1 and not satisfied with proceeds of the Obligationsinitial Loans and (ii) Indebtedness under the Term Loan Facility (including any incremental facility thereunder), in the case of this clause (ii), in an aggregate principal amount not to exceed $187,000,000the Maximum Term Principal Obligations (as defined in the Intercreditor Agreement);
(e) Indebtedness with respect to Bank Products (i) incurred in the Ordinary Course of a Borrower owed to another Borrower; provided, however, Business and not for speculative purposes or (ii) required under Section 5.12 of the Term Loan Agreement and not for speculative purposes or any corresponding provision under any Term Loan Facility that such Indebtedness is refinances the Term Loan Agreement;
(i) unsecured Indebtedness that is assumed or incurred byof an Obligor or Subsidiary in connection withthat is incurred on the date of the consummation of a Permitted Acquisition or other acquisition of assets permitted hereunder orsolely for the purpose of consummating such Permitted Acquisition or such other acquisition so long as (A) no Event of Default has occurred and is continuing or would result therefrom, (B) such unsecured Indebtedness is not incurred for working capital purposes, (C) such unsecured Indebtedness does not mature prior to the date that is six (6) months after the Maturity Date, (D) such unsecured Indebtedness does not amortize until six (6) months after the Maturity Date, (E) such unsecured Indebtedness does not provide for the payment of interest thereon in cash or Cash Equivalents prior to the date that is six (6) months after the Maturity Date, and (F) such Indebtedness is subordinated in right of payment to the Obligations on terms and conditions reasonably satisfactory to Agent, (ii) Indebtedness that is in existence prior to the date when a Person becomes a Subsidiary or that is secured by an assetEquipment when acquired by a Borrower orCompany or a Subsidiary, in each case, as part of a Permitted Acquisition, as long as such Indebtedness was not incurred in contemplation of such Person becoming a Subsidiary or such Permitted Acquisition; provided that for both clauses (i) and (ii), after giving effect to such Permitted Acquisition on a pro forma basis, the Net TotalSenior Leverage Ratio is no greater than the Net TotalSenior Leverage Ratio in effect immediately prior to such Permitted Acquisition;
(g) Permitted Contingent Obligations (excluding Permitted Surety Bonds);
(h) Indebtedness under Permitted Surety Bonds that does not exceed $30,000,00020,000,000 in the aggregate at any time;
(i) [reserved;]
(j) [reserved;]
(i) Permitted First Lien Debt in an amount not to exceed the greater of (x) $5,000,000 and (y) an amount such that, at the time of incurrence the Net First Lien Leverage Ratio for the most recently ended four Fiscal Quarters for which financial statements have been delivered pursuant to clause (a) or (b) of Section 10.1.2 immediately preceding the date on which such additional Indebtedness is incurred, determined on a pro forma basis, as if the additional Indebtedness had been incurred at the beginning of such period, is no greater than 3.07 to 1.00; provided that the Fixed Charge Coverage Ratio for the most recently ended trailing twelve month period for which financial statements have been delivered pursuant to Section 10.1.2 immediately preceding the date on which such additional Indebtedness is incurred is at least 1.00 to 1.00, determined on a pro forma basis, as if the additional Indebtedness had been incurred at the beginning of such period;
(j) Permitted Unsecured Debt so long as (i) at the time of incurrence the Net Total Leverage Ratio for the most recently ended four Fiscal Quarters for which financial statements have been delivered pursuant to Section 10.1.2 immediately preceding the date on which such additional Indebtedness is incurred is no greater than 3.75 to 1.00, determined on a pro forma basis, as if the additional Indebtedness had been incurred at the beginning of such period and (ii) subordinated to the Obligations Fixed Charge Coverage Ratio for the most recently ended trailing twelve month period for which financial statements have been delivered pursuant to Section 13.25 hereof or10.1.2 immediately preceding the date on which such additional Indebtedness is incurred is at least 1.00 to 1.00, determined on a pro forma basis, as if the additional Indebtedness had been incurred at the beginning of such period;
(k) Specified Unsecured Prepetition Debt in an aggregate principal amount not to exceed $60,000,000 so long as such Specified Unsecured Prepetition Debt does not mature, require mandatory prepayments (other than in connection with a change of control or to the extent required under Section V.I of the Plan of Reorganization) or require any payment of cash interest, in each case, prior to September 30, 2014;24,500,000;
(l) the Comerica Letter of Credit and the JPM Letter of Credit[reserved;]
(m) Refinancing Debt as long as each Refinancing Condition is satisfied;
(n) Intercompany Indebtedness of Borrowers and thetheir Subsidiaries to the extent permitted by Section 10.2.5; provided that any such Indebtedness that is evidenced owed by an instrument, Obligor to a Subsidiary that is not an Obligor is subordinated to the Obligations pursuant to an Affiliate Subordination Agreement;
(o) financing of insurance premiums in the terms Ordinary Course of such instrument Business;
(p) Indebtedness incurred in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards (including so-called “procurement cards” or a separate written agreement“P-cards”), or cash management services, netting services, overdraft protection, and other like services, in each case, that is approved by Administrative Agent case incurred in its reasonable discretionthe Ordinary Course of Business;
(fq) trade accounts payable and accrued expenses arising unsecured Indebtedness owing to former employees, officers or occurring in directors (or any spouses, ex-spouses, or estates of any of the ordinary course of business;
(gforegoing) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in connection with the ordinary course repurchase by Company of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees the Equity Interests of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible DebtCompany that have been issued to such Persons, so long as (1i) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists has occurred and is continuing or would result therefrom at from the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee incurrence of such Indebtedness without duplicationand (ii) the aggregate amount of all such Indebtedness outstanding at any one time does not exceed $500,000; provided that any such Indebtedness shall be treated as a Distribution and only be permitted to the extent permitted pursuant to Section 10.2.4;
(collectivelyr) accrual of interest, accretion or amortization of original issue discount, or the payment of interest in kind, in each case on Indebtedness that otherwise constitutes Indebtedness permitted under this Section 10.2.1;
(s) Indebtedness incurred by Subsidiaries that are not Obligors in an aggregate principal amount not to exceed $2,500,000;
(t) to the extent constituting Indebtedness, customary purchase price adjustments, earn outs, indemnification obligations, unsecured guarantees thereof and similar items of Borrowers or any of their Subsidiaries in connection with Permitted Acquisitions, other acquisitions of assets permitted hereunder or Permitted Asset Dispositions;
(u) to the extent constituting Indebtedness, Indebtedness in respect of the Fee Claim Reserve Amounts, the “Other Indebtedness”); provided that: Prepetition Escrowed Amounts and the Delayed Admin Claims[reserved];
(v) Borrowers and their Subsidiaries may enter into Hedging Agreements that are (i) required by the commitment amount Term Loan Facility and not for speculative purposes or (ii) entered into in the Ordinary Course of such Other Business and not for speculative purposes; and
(w) Indebtedness shall that is not included in any of the preceding clauses of this Section 10.2.1, is not secured by a Lien and does not exceed the Maximum Other Indebtedness Amount $5,000,000 in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not(a) Directly or indirectly, Incur any Indebtedness (including Acquired Indebtedness) or issue any shares of Disqualified Stock and shall Holdings will not permit any Subsidiary to, create, incur or suffer of its Restricted Subsidiaries to exist issue any Indebtedness, except:
(a) the Obligations;
(b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect shares of the Obligations;
(e) Indebtedness of a Borrower owed to another BorrowerPreferred Stock; provided, however, that Holdings and any Restricted Subsidiary may Incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and any Restricted Subsidiary may issue shares -156- of Preferred Stock, in each case if the Fixed Asset Fixed Charge Coverage Ratio of Parent and its Restricted Subsidiaries on a consolidated basis for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is Incurred or such Disqualified Stock or Preferred Stock is issued would have at least 2.00 to 1.00 determined on a pro forma basis (iincluding a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been Incurred, or the Disqualified Stock or Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of such four-quarter period; provided, further, that the aggregate amount of Indebtedness (including Acquired Indebtedness) unsecured that may be Incurred and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations Disqualified Stock or Preferred Stock that may be issued pursuant to the terms of such instrument or a separate written agreement, in each case, foregoing by Restricted Subsidiaries that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness U.S. Domiciled Loan Parties shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; greater of (iix) such Other Indebtedness, if secured, is secured by property other than the Collateral, $130,000,000 and (iiiy) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value 5.0% of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined Consolidated Total Assets at the time of the incurrence thereofIncurrence, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the any one time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementoutstanding.
Appears in 1 contract
Permitted Indebtedness. The Borrower No U.S. Guarantor shall not, and shall not permit any Subsidiary to, create, create or incur or suffer to exist any IndebtednessIndebtedness except the following (collectively, except:"U.S. PERMITTED PROJECT INDEBTEDNESS"):
(a) the ObligationsIndebtedness incurred pursuant to this Agreement;
(b) [intentionally deleted]Indebtedness incurred pursuant to any Guarantee by a U.S. Guarantor;
(c) Indebtedness existing on incurred to finance in whole or in part the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;making of capital improvements to the Big Spring Project required to maintain compliance with Applicable Law; PROVIDED that the Independent Engineer shall have certified to the Bond Trustee that:
(di) Derivatives Contracts entered into in respect (x) an Officer's Certificate of an Authorized Officer of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, Big Spring Guarantor certifying that such Indebtedness is (i) unsecured required to make a capital improvement to such U.S. Project that is required in order to maintain compliance with Applicable Law is reasonable and (iiy) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days the most effective means of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in making such capital expenditure and, if applicable, completing the ordinary course of businessBig Spring Project; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, each of the minimum Projected Debt Service Coverage Ratio and the U.S. Projected Debt Service Coverage Ratio for (A) the next four consecutive fiscal quarters, commenc ing with the quarter in which such Indebtedness is to be incurred, taken as one annual period, and (viB) no covenants under any such Other each subsequent fiscal year through the Final Maturity Date for the Securities, will not be less than 1.2 to 1;
(d) Indebtedness incurred pursuant to this finance in whole or in part the making of capital improvements to the Big Spring Project other than those capital improvements referenced in clause (lc) above PROVIDED that:
(i) an Authorized Officer of the Big Spring Guarantor certifies to the Bond Trustee that no Default or Event of Default has occurred and is continuing or will occur as a result of the incurrence of such Indebtedness;
(ii) the Independent Engineer shall have certified to the Bond Trustee that after giving effect to the incurrence of such Indebtedness, (x) each of the minimum Projected Debt Service Coverage Ratio and the U.S. Projected Debt Service Coverage Ratio for (A) the next four consecutive fiscal quarters commencing with the quarter in which such Indebtedness is to be incurred, taken as one annual period and (B) each subsequent fiscal year through the Final Maturity Date for the Securities, will not be less than 1.5 to 1, and (y) each of the average Projected Debt Service Coverage Ratio and the U.S. Projected Debt Service Coverage Ratio for all succeed ing fiscal years until the Final Maturity Date for the Securities will not be less than 1.55 to 1; and
(iii) written confirmation from each Rating Agency then rating the Securities that the incurrence of such Indebtedness will not result in a Rating Down grade;
(e) Indebtedness incurred to finance in whole or in part the purchase of any loans made from Edison Mission Energy, or an Affiliate thereof, to B-41 L.P; PROVIDED that:
(i) an Authorized Officer of the BNY Guarantor certifies to the Bond Trustee that no Default or Event of Default has occurred and is continuing or will occur as a result of the incurrence of such Indebtedness;
(ii) the Independent Engineer shall have certified to the Bond Trustee that after giving effect to the incurrence of such Indebtedness, (x) each of the minimum Projected Debt Service Coverage Ratio and the U.S. Projected Debt Service Coverage Ratio for (A) the next four consecutive fiscal quarters commencing with the quarter in which such Indebtedness is to be incurred, taken as one annual period and (B) each subsequent fiscal year through the Final Maturity Date for the Securities, will not be less than 1.5 to 1, and (y) each of the average Projected Debt Service Coverage Ratio and the U.S. Projected Debt Service Coverage Ratio for all succeed ing fiscal years until the Final Maturity Date for the Securities will not be less than 1.55 to 1; and
(iii) written confirmation from each Rating Agency then rating the Securities that the incurrence of such Indebtedness will not result in a Rating Downgrade;
(f) Indebtedness in the form of a working capital facility for the benefit of the Big Spring Project in an aggregate principal amount not to exceed $2,000,000; PROVIDED that the terms of such facility provide that the aggregate amount of all loans outstanding thereunder shall be more restrictivereduced to zero for ten (10) days;
(g) To the extent such obligations would constitute Indebtedness, when taken as a whole, than those covenants contained in this Agreementobligations of the U.S. Guarantors under the U.S. Project Documents; and
(h) Indebtedness related to U.S. Permitted Project Liens.
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (a) the Obligations;
collectively, “Permitted Indebtedness”): (b) [intentionally deleted];
(ci) Indebtedness existing under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Agreement Closing Date which and Indebtedness is described incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate amount of such Capitalized Lease Obligations and purchase money indebtedness outstanding at any time shall not exceed $250,000, (iv) Indebtedness in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into connection with advances made by a stockholder in respect order to cure any default of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrowerfinancial covenants set forth on Annex I; provided, however, that such Indebtedness is (i) shall be on an unsecured basis, subordinated in right of repayment and (ii) subordinated remedies to all of the Obligations and to all of Lender’s rights pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 180 calendar days from the Obligations pursuant to billing date or more than 60 days from the terms of such instrument or a separate written agreementdue date, in each casecase incurred in the ordinary course of business and paid within such time period, unless (A) Borrower and such trade creditors have agreed on payment terms that is approved permit longer time periods or (B) the same are being contested in good faith and by Administrative Agent appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants shall have been reserved; (vi) borrowings incurred in its reasonable discretion;
the ordinary course of business and not exceeding $100,000 individually or in the aggregate outstanding at any one time (f) excluding trade accounts payable and accrued expenses arising or occurring payables in the ordinary course of business;
(g) Indebtedness consisting of taxes payable), and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days shall be on an unsecured basis, subordinated in right of incurrence;
(k) Indebtedness arising in connection with endorsement repayment and remedies to all of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (vii) Permitted Subordinated Debt; and (viii) any Guarantee of such Indebtedness without duplication) payments due and other reasonable costs contemplated under the Acquisition Agreement, as more fully described on Schedule 7.6 (collectively, the “Other IndebtednessPermitted Acquisition Payments”); provided that: (i) , and not to exceed the commitment amount of such Other Indebtedness amounts set forth on Schedule 7.6. Borrower shall not exceed the Maximum Other make prepayments on any existing or future Indebtedness Amount in the aggregate at to any time; (ii) such Other Indebtedness, if secured, is secured by property Person other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect Lender or to the incurrence of such Other Indebtedness, extent specifically permitted by this Agreement or any subsequent agreement between Borrower and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this AgreementLender.
Appears in 1 contract
Sources: Credit and Security Agreement (Ventures National Inc)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur or suffer to exist any Indebtedness, exceptFor as long as at least thirty-three (33%) percent of the shares of Preferred Stock originally issued on the Closing Date are held by the Investors:
(a) The Corporation shall not incur any Indebtedness (other than (i) any Guarantees by the ObligationsCorporation in favor of SS/L relating solely to SS/L’s performance under any satellite manufacturing agreements, and (ii) from any wholly-owned Subsidiary so long as the Corporation does not grant any security interest relating to or in connection with such Indebtedness) in excess of One Million Dollars ($1,000,000) in the aggregate unless the Adjusted Tangible Asset Value as of the date set forth in the most recent periodic report of the Corporation filed pursuant to the Exchange Act exceeds the TAV Threshold. If the Adjusted Tangible Asset Value as of the date set forth in the most recent periodic report of the Corporation filed pursuant to the Exchange Act exceeds the TAV Threshold, the Corporation shall be permitted to incur Indebtedness from the day after the filing of such periodic report until the day of the filing of the next periodic report (the “Indebtedness Incurrence Period”), provided that the amount of such Indebtedness shall not exceed, when aggregated with all other Indebtedness incurred during such Indebtedness Incurrence Period, an amount equal to one-half of the difference between the Adjusted Tangible Asset Value as of the date set forth in the most recent periodic report of the Corporation filed pursuant to the Exchange Act and the TAV Threshold;
(b) [intentionally deleted];Prior to any incurrence of any Indebtedness permitted by the paragraph immediately above, the Corporation shall deliver to the Investors a certificate, signed by a duly authorized officer of the Corporation, stating that the Corporation has determined, in good faith and in consultation with and after taking the advice of the Chief Financial Officer of the Corporation, that (A) the Adjusted Tangible Asset Value exceeds the TAV Threshold, and (B) the Indebtedness to be incurred will not exceed one-half of the difference between the Adjusted Tangible Asset Value and the TAV Threshold, in each case as of the date of the incurrence of such Indebtedness; and
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect If any Subsidiary of the Obligations;
Corporation (eother than SkyNet and its Subsidiaries) Indebtedness of a Borrower owed to another Borrower; providedincurs Indebtedness, however, that such Indebtedness is Subsidiary shall not Transfer (i) unsecured any proceeds or other consideration received by such Subsidiary from the incurrence of such Indebtedness, and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms any substitution of such instrument proceeds or a separate written agreementother consideration, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising including assets or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, property acquired using such proceeds or consideration or proceeds or other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising consideration received from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee disposition of such Indebtedness without duplication) (collectivelyassets or property, the “Other Indebtedness”); provided that: (i) the commitment amount to SkyNet or any of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtednessits Subsidiaries, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be except in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement5.07 hereof.
Appears in 1 contract
Sources: Securities Purchase Agreement (Loral Space & Communications Inc.)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, None of the Obligors will create, incur guarantee, assume or suffer to exist exist, or in any Indebtednessmanner be or become liable in respect of, exceptany Indebtedness of any kind or character, other than:
(a) the ObligationsSeries A Notes and the guaranty thereof, in each case, secured by the Liens granted in favor of the Trustee under the Security Documents for the benefit of the Secured Parties;
(b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Subordinated Indebtedness of a Borrower owed to another Borrower; providedany Obligor, however, that such Indebtedness is so long as (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations Notes pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payableSubordination Agreement, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(hii) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt exist after giving effect to such Indebtedness;
(including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplicationc) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted Any Additional Notes issued pursuant to this Agreement, (iv) and the Fair Market Value guaranty thereof, and any other Indebtedness of such property that secures such Other Indebtednessthe Obligors; provided that, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the issuance of any such Additional Notes or the incurrence thereofof any such other Indebtedness, the Debt Service Coverage Ratio, for both (v1) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time most recently ended period of 12 consecutive months and immediately (2) on a forward looking Pro Forma Basis after giving effect to the issuance of such Notes or the incurrence of such other Indebtedness, for each annual period through the latest Maturity Date of all Notes outstanding, shall be greater than 1.50 to 1.00; provided that, prior to January 31, 2021, the Debt Service Coverage Ratio for purposes of clause (1) shall only be required to be measured for the number of months that have been completed since the initial Closing Date; and provided further that:
(i) such other Indebtedness will either (a) share pari passu in the Collateral and the holders of such Indebtedness execute and deliver a joinder to the Collateral Trust Indenture in accordance with the terms of the Collateral Trust Indenture, or (b) constitute Other Permitted Indebtedness, and the Co-Issuers shall have furnished to the Trustee and each holder of Notes an Officer’s Certificate to such effect;
(viii) if any covenant and event of default of the documentation governing such Notes or such other Indebtedness is more restrictive on any Obligor than the covenants or agreements contained in the Transaction Documents or is more favorable to such holders than the covenants or agreements contained in the Transaction Documents, then such more restrictive or more favorable covenant or agreement shall be deemed to be incorporated into this Agreement by reference at the time such holder becomes so entitled, and the holders of Notes shall be entitled to the amend the Transaction Documents to incorporate such more restrictive or more favorable covenant or agreement;
(iii) with respect to each series of Notes, if the aggregate principal amount of such Additional Debt incurred (A) in any fiscal year exceeds $5,000,000 or (B) in the aggregate exceeds $10,000,000, the Rating Agency then maintaining the Debt Rating on such Notes in accordance with Section 9.11 reaffirms that such Notes have an Investment Grade Rating, after giving effect to such Additional Debt;
(iv) no covenants under Default or Event of Default exists or would exist with respect to any series of Notes after giving effect to the issuance of such Other Indebtedness incurred other Notes or the incurrence of such other Indebtedness, as applicable and the Co-Issuers shall have furnished to the Trustee and each holder of Notes an Officer’s Certificate to such effect;
(v) the Obligors shall have furnished to each holder of a Note (A) an Officer’s Certificate (which may be combined with the Officer’s Certificates required to be delivered pursuant to this clause the foregoing clauses (lc)(i) shall be more restrictiveand (iv)), when taken as a wholedated the date of incurrence of such Additional Debt, than those covenants contained setting forth the information and computations required in order to establish that all conditions in this AgreementSection 10.6(c) to the incurrence of such Additional Debt have been satisfied and that, after giving effect to such incurrence and to the application of the proceeds of such Additional Debt, the Co-Issuers are in compliance with the requirements of this Section 10.6(c) on such date, and (B) to the extent that satisfaction requires execution and delivery of additional documents, guarantees, security agreements or instruments to effect the same, all such items (along with related legal opinions customarily delivered at closing as to such additional documents).
Appears in 1 contract
Sources: Note Purchase and Participation Agreement (Landmark Infrastructure Partners LP)
Permitted Indebtedness. The Borrower shall will not, and shall will not permit any Restricted Subsidiary to, incur, create, incur issue, assume or suffer permit to exist any Indebtedness, exceptIndebtedness for Borrowed Money other than:
(a) the ObligationsObligations hereunder and the Subsidiary Guaranty Agreement relating thereto;
(b) [intentionally deleted]unsecured Subordinated Debt;
(c) Indebtedness existing on the Agreement Date which Indebtedness is described debt incurred in Schedule 7.1(g) heretoconnection with permitted Fixed Asset Financing;
(d) Derivatives Contracts entered into in respect of unsecured Indebtedness for Borrowed Money owing between the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring Restricted Subsidiaries in the ordinary course of business, provided that the aggregate amount of Indebtedness for Borrowed Money at any one time owing either by or to the Insurance Subsidiary shall not exceed $1,000,000;
(e) the 2021 Unsecured Bond Debt;
(f) Indebtedness arising from or incurred in connection with a Permitted Facility or refinancing thereof; provided that no portion of such Indebtedness or any other obligation (contingent or otherwise) in connection therewith (i) is guaranteed by the Borrower or any Restricted Subsidiary other than pursuant to Standard Securitization Undertakings, (ii) is recourse to or obligates the Borrower or any Restricted Subsidiary in any way other than as the seller of the relevant Receivables other than pursuant to Standard Securitization Undertakings, or (iii) subjects any property of the Borrower or any Restricted Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than as the seller of Receivables being financed pursuant to Standard Securitization Undertakings; and
(g) other unsecured Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all for Borrowed Money owing to any Person (other than to the extent incurred Borrower or another Restricted Subsidiary) in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, aggregate amount for the avoidance of doubt, Capitalized Lease Obligations Borrower and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall all Restricted Subsidiaries not exceed the Maximum Other Indebtedness Amount in the aggregate exceeding $10,000,000 at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreementoutstanding.
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
Any of the following: (ai) the Obligations;
(b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to Indebtedness (other than Obligations) existing as of the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms date of such instrument this Credit Agreement or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring as disclosed in the ordinary course of business;
2010 Annual Report or as otherwise disclosed on Schedule 6.1 hereto but not any increase in the principal amounts thereof nor any renewals or refinancings thereof; (giii) Indebtedness consisting of taxes payablefor taxes, and obligations in respect of customer deposits, all assessments or governmental charges to the extent that payment therefore shall at the time not be required to be made in accordance with Section 5.4; (iv) current trade liabilities on open account for the purchase price of services, materials and supplies incurred in by the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in or its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into Subsidiaries in the ordinary course of business (in each case other than for an obligation for money borrowednot as a result of borrowing);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the all of such open account Indebtedness shall be promptly paid and discharged when due or in conformity with customary trade terms and conditions practices, except for any such open account Indebtedness which is being contested in good faith by the Borrower or its Subsidiaries, as to which adequate reserves required by GAAP have been established and are being maintained and as to which no Lien has been placed on any property of the Convertible Debt are no more restrictive than the terms of this Agreement and Borrower or its Subsidiaries; (4v) UHG complies with Section 10.10 below;
(j) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds incurred in the ordinary course of business; provided, howeverincluding asset securitization facilities and letters of credit not issued under this Credit Agreement, and renewals and refinancings thereof, provided that such Indebtedness is extinguished within five under this clause (5v) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall does not exceed the Maximum Other Indebtedness Amount $20,000,000 in the aggregate at any timetime outstanding; (vi) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (i) the Indebtedness so Guaranteed is Permitted Indebtedness, (ii) such Other Indebtedness, if secured, Guarantees by the Borrower or any Subsidiary that is secured by property other than the Collateral, a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.4 and (iii) such Other Indebtedness is not cross-defaulted to Guarantees permitted under this Agreement, clause (ivvi) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times subordinated to the amount of such Other Indebtedness in the aggregate, determined at the time Secured Obligations of the incurrence thereof, applicable Subsidiary on the same terms as the Indebtedness so Guaranteed is subordinated to the Secured Obligations; and (vvii) Indebtedness existing by and among the Borrower shall be in compliance with the financial covenants and its Subsidiaries as set forth in Section 10.1 at Schedule 3.18 annexed hereto or as otherwise disclosed in the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement2010 Annual Report.
Appears in 1 contract
Sources: Credit Agreement (Virtusa Corp)
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur incur, assume or suffer to exist any Indebtedness, except:
except the following (collectively, "PERMITTED INDEBTEDNESS"): (a) Indebtedness under the Obligations;
Loan Documents, (b) [intentionally deleted];
any Indebtedness set forth on Schedule 7.2 or arising after the date hereof pursuant to commitments set forth in Schedule 7.2 and any refunding or renewals thereof which do not increase the principal amount of such Indebtedness; (c) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness existing on incurred pursuant to purchase money Liens permitted by Section 7.3(e); provided, that the Agreement Date which Indebtedness is described in Schedule 7.1(g) hereto;
aggregate amount thereof outstanding at any time shall not exceed $1,000,000, (d) Derivatives Contracts entered into in respect of current liabilities (other than for borrowed money) to the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness is extent (i) unsecured incurred in the ordinary course of business consistent with past practices and (ii) subordinated discharged or satisfied at or before the due date for payment (subject to ordinary course payment practices), unless the Obligations pursuant to Section 13.25 hereof orsame are being contested in good faith and by appropriate and lawful proceedings and such reserves, if such Indebtedness is evidenced any, with respect thereto as are required by an instrumentGAAP and deemed adequate by Borrower's independent accountants shall have been reserved, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(fe) trade accounts payable and accrued expenses arising or occurring borrowings incurred in the ordinary course of business;
, (f) other indebtedness in an amount not exceeding $1,000,000 individually or in the aggregate outstanding at any one time; (g) indemnities under Government Contracts, (h) Subordinated Debt in an amount not to exceed $10,000,000 at any one time outstanding, (i) Indebtedness consisting of taxes payable, and obligations in with respect of customer deposits, all to financed insurance premiums to the extent incurred in the ordinary course of any Borrower’s business;
not past due, (hj) performance bonds, completion bonds, other bonds customarily used Contingent Obligations undertaken by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of with respect to the Indebtedness of a special district entered into in any other Borrower, to the ordinary course of business extent such Indebtedness is permitted hereunder as set forth on Schedule 7.2, (in each case other than for an obligation for money borrowed);
k) intercompany debt between or among Borrowers hereto and (i) the Convertible Debtreimbursement obligations with respect to letters of credit that are secured by cash collateral accounts, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that in each case under this Section 7.2, all such Indebtedness is extinguished within five (5) Business Days shall be on an unsecured basis, except for Permitted Liens relating to money borrowed which shall be subordinated in right of incurrence;
(k) repayment and remedies to all of the Obligations and to all of the Lenders' rights in form and substance satisfactory to Agent. Borrower shall not make prepayments on any existing or future Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, to any Person other unsecured and secured debt (includingthan to Agent, for the avoidance benefit of doubtLenders, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time of the incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect or to the incurrence of such Other Indebtednessextent specifically permitted by this Agreement or any subsequent agreement between Borrower, Agent and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this AgreementLenders.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (America Service Group Inc /De)
Permitted Indebtedness. The Borrower shall not1.02.....Permitted Affiliate Transactions AMENDED AND RESTATED INDENTURE, dated as of ___________ __, 2001 among GB Property Funding Corp. (herein called the "Company"), GB Holdings, Inc. (herein called "Holdings") and shall not permit any Subsidiary toGreate Bay Hotel and Casino, createInc. (herein called "GBHC", incur or suffer to exist any Indebtednessand, except:
(a) together with Holdings, herein called the Obligations;
(b) [intentionally deleted];
(c) Indebtedness existing on the Agreement Date "Guarantors"), each of which Indebtedness is described in Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in respect of the Obligations;
(e) Indebtedness of a Borrower owed to another Borrower; providedcorporation duly organized and existing, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;
(h) performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds the Company and Holdings, under the laws of the State of Delaware, and in the ordinary course case of business; providedGBHC, howeverunder the laws of the State of New Jersey, and each having its principal office c/o Sands Hotel and Casino at Indiana Avenue & Brighton Park, Atlantic City, New Jersey 08401, and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, Trustee (herein called the "Trustee"). The Company has duly authorized and issued its 11% Notes Due 2005 (herein called "Notes" or the "Securities"), under an Indenture dated as of September 29, 2000 (the "Original Indenture") of substantially the tenor and amount set forth in the Original Indenture, and to provide therefore the Company has duly authorized the execution and delivery of the Original Indenture, as amended and restated by this Amended and Restated Indenture (this "Indenture"). The Company has duly authorized the creation of Liens to secure the Securities, and to provide therefore the Company has duly authorized the execution and delivery of the Security Documents to which it is a party. Each of the Guarantors has duly authorized its guarantee of the Securities, and to provide therefore each of the Guarantors has duly authorized the execution and delivery of this Indenture. Each of the Guarantors has duly authorized the creation of Liens to secure its guarantee of the Securities, and to provide therefore each of the Guarantors has duly authorized the execution and delivery of the Security Documents to which it is a party. This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, that are required to be part of this Indenture and shall, to the extent applicable, be governed by such Indebtedness provisions. All things necessary have been done to make the Securities, when executed by the Company and authenticated by the Trustee and delivered hereunder and duly issued by the Company, the valid obligations of the Company, to make the Guarantees the valid obligation of each of the Guarantors and to make this Indenture a valid agreement of each of the Company and the Guarantors, in accordance with their and its terms. For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured mutually covenanted and secured debt (includingagreed, for the avoidance equal and proportionate benefit of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time all Holders of the incurrence thereofSecurities, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement.follows: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Appears in 1 contract
Sources: Indenture (Gb Property Funding Corp)
Permitted Indebtedness. The Borrower shall notIncur or permit to exist or remain outstanding any Indebtedness; provided, and shall not permit any Subsidiary tohowever, create, that the Consolidated Group may incur or suffer permit to exist any Indebtedness, exceptor remain outstanding:
(a) Tower Construction Loans, subject to the Obligationsrequirements of Section 8.03;
(b) [intentionally deleted]non-recourse purchase money Indebtedness, subject to the restrictions set forth in Section 7.02(l);
(c) Indebtedness assumed in connection with the acquisition of an asset or Indebtedness of a Person, in either case, existing on at the Agreement Date which time such asset or Person is acquired by, or merged or consolidated with or into, any member of the Consolidated Group (and refinancings, refundings, renewals, extensions, and replacements of such Indebtedness is described that do not increase the outstanding principal amount thereof at the time of such refinancing, refunding, renewal, extension, or replacement), so long as (i) such Indebtedness was not incurred in Schedule 7.1(gcontemplation of such acquisition, merger, or consolidation, and (ii) heretono Default or Event of Default then exists or arises as a result thereof;
(d) Derivatives Contracts entered into in respect of the Obligations[Reserved];
(e) Indebtedness in respect of a Borrower owed to another Borrower; provided, however, that such Indebtedness is (i) unsecured and (ii) subordinated to the Obligations pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a separate written agreement, in each case, that is approved by Administrative Agent in its reasonable discretionSwap Contracts;
(f) trade accounts payable existing Indebtedness described in Schedule 7.01, and accrued expenses arising refinancings, refunding, renewals, extensions, and replacements of such Indebtedness that do not increase the outstanding principal amount thereof at the time of such refinancing, refunding, renewal, extension, or occurring in the ordinary course of businessreplacement;
(g) Guarantees of Indebtedness consisting of taxes payableany member of the Consolidated Group permitted by clauses (a), (c), and obligations in respect (e) of customer deposits, all to the extent incurred in the ordinary course of any Borrower’s business;this Section 7.01; and
(h) performance bondsIndebtedness with respect to CDD Obligations. Without limiting the foregoing, completion bondsBorrower shall not, other bonds customarily used by nor shall it permit any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and conditions member of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank Consolidated Group to, directly or other financial institution of a check, draft indirectly incur or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default permit to exist or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and remain outstanding any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be no greater than two (2) times the amount of such Other Indebtedness in the aggregate, determined at the time Senior Unsecured Debt. The provisions of the incurrence thereof, (v) foregoing sentence are not intended to restrict the Borrower shall be in compliance with the financial covenants set forth in Consolidated Group from incurring or permitting to exist or remain outstanding purchase money Indebtedness permitted by Section 10.1 at the time of and immediately after giving effect to the incurrence of such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a whole, than those covenants contained in this Agreement7.01(b).
Appears in 1 contract