Common use of Priority Debt Clause in Contracts

Priority Debt. The Company will not, at any date, permit Priority Debt to exceed (a) prior to the last day of the fiscal quarter in which the Folgers Acquisition Date occurs, 25% of Consolidated Total Capitalization (determined as of the last day of the then most recently ended fiscal quarter of the Company) and (b) thereafter, 15% of Consolidated Total Capitalization (determined as of the last day of the then most recently ended fiscal quarter of the Company or determined as of such date if such date shall be the last day of a fiscal quarter of the Company); provided, however, that no Lien created pursuant to Section 10.7(g) shall secure any Primary Senior Debt unless the Notes are equally and ratably secured by all property subject to such Lien and no Subsidiary shall guaranty or otherwise become obligated in respect of any Primary Senior Debt unless such Subsidiary guaranties, or becomes similarly obligated in respect of, the Notes and such Debt is subject to the terms of the Intercreditor Agreement (or an intercreditor agreement in form and substance reasonably satisfactory to the Required Holders), in each case all pursuant to documentation reasonably satisfactory to the Required Holders; provided, further, however, that notwithstanding anything contained in this Section 10.6 to the contrary, the Company shall be under no obligation to (but may in its sole discretion) require any Foreign Subsidiary to guaranty the Debt under this Agreement and the Notes to the extent such Foreign Subsidiary’s obligations under all Primary Senior Debt consist solely of direct borrowings solely to such Foreign Subsidiary or a group of Foreign Subsidiaries (a “Foreign Borrowing”) or guaranties of a Foreign Borrowing by another Foreign Subsidiary.

Priority Debt. The Company will not, at any date, permit Priority Debt to exceed (a) prior to the last day of the fiscal quarter in which the Folgers Acquisition Date occurs, 25% of Consolidated Total Capitalization (determined as of the last day of the then most recently ended fiscal quarter of the Company) and (b) thereafter, 15% of Consolidated Total Capitalization (determined as of the last day of the then most recently ended fiscal quarter of the Company or determined as of such date if such date shall be the last day of a fiscal quarter of the Company); provided, however, that (x) no Lien created pursuant to Section 10.7(g) shall secure any Primary Senior Debt unless the Notes are equally and ratably secured by all property subject to such Lien and (y) (i) no Subsidiary shall guaranty or otherwise be or become obligated in respect of any Primary Senior Debt unless such Subsidiary guaranties, or becomes similarly obligated in respect of, the Notes and (ii) such Primary Senior Debt (excluding (A) the Xxxxxxx LLC Debt and (B) the Indebtedness under the Folgers Bank Credit Agreement but including any refinancing, extension or replacement of the Indebtedness evidenced by the Folgers Bank Credit Agreement) is subject to the terms of the Intercreditor Agreement (or an intercreditor agreement in form and substance reasonably satisfactory to the Required Holders), in each case all pursuant to documentation reasonably satisfactory to the Required Holders; provided, further, however, that notwithstanding anything contained in this Section 10.6 to the contrary, the Company shall be under no obligation to (but may in its sole discretion) require any Foreign Subsidiary to guaranty the Debt under this Agreement and the Notes to the extent such Foreign Subsidiary’s obligations under all Primary Senior Debt consist solely of direct borrowings solely to such Foreign Subsidiary or a group of Foreign Subsidiaries (a “Foreign Borrowing”) or guaranties of a Foreign Borrowing by another Foreign Subsidiary.

Priority Debt. The Company will not, at any date, permit Priority Debt to exceed (a) prior to the last day of the fiscal quarter in which the Folgers Acquisition Date occurs, 25% of Consolidated Total Capitalization (determined as of the last day of the then most recently ended fiscal quarter of the Company) and (b) thereafter, 15% of Consolidated Total Capitalization (determined as of the last day of the then most recently ended fiscal quarter of the Company or determined as of such date if such date shall be the last day of a fiscal quarter of the Company); provided, however, that no Lien created pursuant to Section 10.7(g10.6(g) shall secure any Primary Senior Debt unless the Notes are equally and ratably secured by all property subject to such Lien and no Subsidiary shall guaranty or otherwise become obligated in respect of any Primary Senior Debt unless such Subsidiary guaranties, or becomes similarly obligated in respect of, the Notes and such Debt is subject to the terms of the Intercreditor Agreement (or an intercreditor agreement in form and substance reasonably satisfactory to the Required Holders), in each case all pursuant to documentation reasonably satisfactory to the Required Holders; provided, further, however, that notwithstanding anything contained in this Section 10.6 10.5 to the contrary, the Company shall be under no obligation to (but may in its sole discretion) require any Foreign Subsidiary to guaranty the Debt under this Agreement and the Notes to the extent such Foreign Subsidiary’s obligations under all Primary Senior Debt consist solely of direct borrowings solely to such Foreign Subsidiary or a group of Foreign Subsidiaries (a “Foreign Borrowing”) or guaranties of a Foreign Borrowing by another Foreign Subsidiary.

Priority Debt. The Company will not, Priority Debt at any date, permit Priority Debt time to exceed (a) prior to the last day of the fiscal quarter in which the Folgers Acquisition Date occurs, 2515% of Consolidated Total Capitalization Assets (determined as of the last day end of the then most recently ended fiscal quarter of the Company) and (b) thereafter, 15% of Consolidated Total Capitalization (determined as of the last day of the then most recently ended fiscal quarter of the Company or determined as of such date if such date shall be the last day of a fiscal quarter of the Company); provided, however, that no Lien created pursuant to Section 10.7(g10.2(j) shall secure Indebtedness owing under the Bank Credit Agreement or any Primary Senior Debt other note agreement to which the Company is a party unless the Notes are equally and ratably secured by all property subject to such Lien and no Subsidiary shall guaranty or otherwise become obligated in respect of any Primary Senior Debt such Indebtedness unless such Subsidiary guaranties, or becomes similarly obligated in respect of, the Notes, in each case pursuant to documentation reasonably satisfactory to the Majority Holders. Notwithstanding the foregoing, any Foreign Subsidiary may become a borrower under the Bank Credit Agreement, so long as it is liable only for the amount of its direct borrowings thereunder, and the Company shall not be required to cause such Foreign Subsidiary to guaranty the Notes in accordance with this clause (c), if (i) no Default or Event of Default exists and is continuing at the time such Foreign Subsidiary becomes a borrower under the Bank Credit Agreement and (ii) at such time the provision by such Foreign Subsidiary of a guaranty of the Notes would cause the earnings of such Foreign Subsidiary to be treated as a deemed dividend to such Foreign Subsidiary’s United States parent under the Code; provided, however, that a guaranty of the Notes from such Foreign Subsidiary shall be required to be delivered to the holders of Notes in accordance with this clause (c) on the earliest to occur thereafter of (x) a Default or Event of Default or (y) such time as the provision by such Foreign Subsidiary of a guaranty of the Notes would not cause the earnings of such Foreign Subsidiary to be treated as a deemed dividend to such Foreign Subsidiary’s United States parent under the Code. For the avoidance of doubt, (1) any borrowing by a Foreign Subsidiary under the Bank Credit Agreement shall constitute Priority Debt is subject to unless such Foreign Subsidiary shall have provided a guaranty or shall have otherwise become obligated in respect of the Notes in accordance with the terms of this Section 10.1(c), and (2) any Indebtedness owing under the Intercreditor Bank Credit Agreement (or an intercreditor any other note agreement to which the Company is a party that is secured by a Lien created pursuant to Section 10.2(j) shall cease to constitute Priority Debt for purposes of the first sentence of this Section 10.1(c) at such time as the Notes are equally and ratably secured by all property subject to such Lien pursuant to documentation in form and substance reasonably satisfactory to the Required Majority Holders), in each case all pursuant to documentation reasonably satisfactory including, without limitation, an intercreditor agreement and opinions of counsel to the Required Holders; providedCompany and/or any applicable Subsidiary, furtheras the case may be, however, that notwithstanding anything contained in this Section 10.6 from counsel reasonably acceptable to the contraryMajority Holders. If during any test period for which EBITDA is being determined any Business Acquisition or Business Disposition shall have been consummated, then for purposes of clauses (a) and (b) above EBITDA shall be determined on a pro forma basis as if such Business Acquisition or Business Disposition shall have been consummated on the first day of such test period and any Indebtedness incurred or retired in connection therewith had been incurred or retired on such first day. Notwithstanding the foregoing, the Company shall be under permitted, but in no obligation to event (but may in its sole discretiona) require any Foreign Subsidiary to guaranty the Debt under this Agreement and on more than three occasions while the Notes are outstanding, or (b) on more than two occasions during the period from the date hereof through and including the 5th anniversary of this Agreement, to increase the extent maximum Leverage Ratio permitted under Section 10.1(a) to 4.00 to 1.00 (the “Elevated Ratio”) for a period of four consecutive fiscal quarters in connection with a Qualifying Material Acquisition occurring during the first of such Foreign Subsidiary’s obligations under all Primary Senior Debt consist solely four consecutive fiscal quarters, so long as the Company is in compliance on a pro forma basis with the maximum Leverage Ratio of direct borrowings solely 4.00 to 1.00 on the closing date of such Qualifying Material Acquisition immediately after giving effect (including giving effect on a pro forma basis) to such Foreign Subsidiary Qualifying Material Acquisition; provided that (x) it is understood and agreed that the maximum Leverage Ratio permitted under Section 10.1(a) shall revert to 3.50 to 1.00 on the day immediately following the last day of such period, and such ratio shall apply thereafter until another such period (if any) is elected pursuant to an Elevated Ratio Notice (as described below) and (y) the Elevated Ratio shall not be in effect for more than four consecutive fiscal quarters at any time. Upon or before application of the Elevated Ratio, as contemplated by the preceding paragraph, the Company must deliver to each of the holders of the Notes a group of Foreign Subsidiaries written notice from a Senior Financial Officer (a an “Foreign BorrowingElevated Ratio Notice”) or guaranties of a Foreign Borrowing by another Foreign Subsidiary.):

Priority Debt. The Company will not, Priority Debt at any date, permit Priority Debt time to exceed (a) prior to the last day of the fiscal quarter in which the Folgers Acquisition Date occurs, 2515% of Consolidated Total Capitalization Assets (determined as of the last day end of the then most recently ended fiscal quarter of the Company) and (b) thereafter, 15% of Consolidated Total Capitalization (determined as of the last day of the then most recently ended fiscal quarter of the Company or determined as of such date if such date shall be the last day of a fiscal quarter of the Company); provided, however, that no Lien created pursuant to Section 10.7(g10.2(j) shall secure any Primary Senior Debt Indebtedness owing under the Bank Credit Agreement unless the Notes are equally and ratably secured by all property subject to such Lien and no Subsidiary shall guaranty or otherwise become obligated in respect of any Primary Senior Debt such Indebtedness unless such Subsidiary guaranties, or becomes similarly obligated in respect of, the Notes and such Debt is subject to the terms of the Intercreditor Agreement (or an intercreditor agreement in form and substance reasonably satisfactory to the Required Holders)Notes, in each case all pursuant to documentation reasonably satisfactory to the Required Majority Holders; provided. Notwithstanding the foregoing, furtherany Foreign Subsidiary may become a borrower under the Bank Credit Agreement, howeverso long as it is liable only for the amount of its direct borrowings thereunder, that notwithstanding anything contained in this Section 10.6 to the contrary, and the Company shall not be under no obligation required to (but may in its sole discretion) require any cause such Foreign Subsidiary to guaranty the Debt Notes in accordance with this clause (c), if (i) no Default or Event of Default exists and is continuing at the time such Foreign Subsidiary becomes a borrower under this the Bank Credit Agreement and (ii) at such time the provision by such Foreign Subsidiary of a guaranty of the Notes would cause the earnings of such Foreign Subsidiary to the extent be treated as a deemed dividend to such Foreign Subsidiary’s obligations United States parent under all Primary Senior Debt consist solely the Code; provided, however, that a guaranty of direct borrowings solely the Notes from such Foreign Subsidiary shall be required to be delivered to the holders of Notes in accordance with this clause (c) on the earliest to occur thereafter of (x) a Default or Event of Default or (y) such time as the provision by such Foreign Subsidiary of a guaranty of the Notes would not cause the earnings of such Foreign Subsidiary to be treated as a deemed dividend to such Foreign Subsidiary or a group Subsidiary’s United States parent under the Code. (For the avoidance of Foreign Subsidiaries (a “Foreign Borrowing”) or guaranties of doubt, any borrowing by a Foreign Borrowing by another Subsidiary under the Bank Credit Agreement shall constitute Priority Debt unless such Foreign SubsidiarySubsidiary shall have provided a guaranty or shall have otherwise become obligated in respect of the Notes in accordance with the terms of this Section 10.1(c).) If during any test period for which EBITDA is being determined any acquisition or Disposition shall have been consummated, then for purposes of clauses (a) and (b) above EBITDA shall be determined on a pro forma basis as if such acquisition or Disposition shall have been consummated on the first day of such test period and any Indebtedness incurred or retired in connection therewith had been incurred or retired on such first day.

Priority Debt. The Company will not, at any date, permit Priority Debt to exceed (a) prior to the last day of the fiscal quarter in which the Folgers Acquisition Date occurs, 25% of Consolidated Total Capitalization (determined as of the last day of the then most recently ended fiscal quarter of the Company) and (b) thereafter, 15% of Consolidated Total Capitalization (determined as of the last day of the then most recently ended fiscal quarter of the Company or determined as of such date if such date shall be the last day of a fiscal quarter of the Company); provided, however, that (x) no Lien created pursuant to Section 10.7(g10.6(g) shall secure any Primary Senior Debt unless the Notes are equally and ratably secured by all property subject to such Lien and (y) (i) no Subsidiary shall guaranty or otherwise be or become obligated in respect of any Primary Senior Debt unless such Subsidiary guaranties, or becomes similarly obligated in respect of, the Notes and (ii) such Primary Senior Debt is subject to the terms of the Intercreditor Agreement (or an intercreditor agreement in form and substance reasonably satisfactory to the Required Holders), in each case all pursuant to documentation reasonably satisfactory to the Required Holders; provided, further, however, that notwithstanding anything contained in this Section 10.6 10.5 to the contrary, the Company shall be under no obligation to (but may in its sole discretion) require any Foreign Subsidiary to guaranty the Debt under this Agreement and the Notes to the extent such Foreign Subsidiary’s obligations under all Primary Senior Debt consist solely of direct borrowings solely to such Foreign Subsidiary or a group of Foreign Subsidiaries (a “Foreign Borrowing”) or guaranties of a Foreign Borrowing by another Foreign Subsidiary.

Priority Debt. The Company will not, Priority Debt at any date, permit Priority Debt time to exceed (a) prior to the last day of the fiscal quarter in which the Folgers Acquisition Date occurs, 2515% of Consolidated Total Capitalization Assets (determined as of the last day end of the then most recently ended fiscal quarter of the Company) and (b) thereafter, 15% of Consolidated Total Capitalization (determined as of the last day of the then most recently ended fiscal quarter of the Company or determined as of such date if such date shall be the last day of a fiscal quarter of the Company); provided, however, that no Lien created pursuant to Section 10.7(g10.2(j) shall secure any Primary Senior Debt Indebtedness owing under the Bank Credit Agreement unless the Notes are equally and ratably secured by all property subject to such Lien and no Subsidiary shall guaranty or otherwise become obligated in respect of any Primary Senior Debt such Indebtedness unless such Subsidiary guaranties, or becomes similarly obligated in respect of, the Notes and such Debt is subject to the terms of the Intercreditor Agreement (or an intercreditor agreement in form and substance reasonably satisfactory to the Required Holders)Notes, in each case all pursuant to documentation reasonably satisfactory to the Required Majority Holders; provided. Notwithstanding the foregoing, furtherany Foreign Subsidiary may become a borrower under the Bank Credit Agreement so long as it is liable only for the amount of its direct borrowings thereunder, however, that notwithstanding anything contained in this Section 10.6 to the contrary, and the Company shall not be under no obligation required to (but may in its sole discretion) require any cause such Foreign Subsidiary to guaranty the Debt Notes in accordance with this clause (c), if (1) no Default or Event of Default exists and is continuing at the time such Foreign Subsidiary becomes a borrower under this the Bank Credit Agreement and (2) at such time the provision by such Foreign Subsidiary of a guaranty of the Notes would cause the earnings of such Foreign Subsidiary to the extent be treated as a deemed dividend to such Foreign Subsidiary’s obligations United States parent under all Primary Senior Debt consist solely the Code; provided, however, that a guaranty of direct borrowings solely the Notes from such Foreign Subsidiary shall be required to be delivered to the holders of Notes in accordance with this clause (c) on the earliest to occur thereafter of (x) a Default or Event of Default or (y) such time as the provision by such Foreign Subsidiary of a guaranty of the Notes would not cause the earnings of such Foreign Subsidiary to be treated as a deemed dividend to such Foreign Subsidiary or a group Subsidiary’s United States parent under the Code. (For the avoidance of Foreign Subsidiaries (a “Foreign Borrowing”) or guaranties of doubt, any borrowing by a Foreign Borrowing by another Subsidiary under the Bank Credit Agreement shall constitute Priority Debt unless such Foreign SubsidiarySubsidiary shall have provided a guaranty or shall have otherwise become obligated in respect of the Notes in accordance with the terms of this Section 10.1(c).) If during any test period for which EBITDA is being determined any acquisition or Disposition shall have been consummated, then for purposes of clauses (a) and (b) above EBITDA shall be determined on a pro forma basis as if such acquisition or Disposition shall have been consummated on the first day of such test period and any Indebtedness incurred or retired in connection therewith had been incurred or retired on such first day.

Priority Debt. The Company will not, at any date, permit Priority Debt to exceed (a) prior to the last day of the fiscal quarter in which the Folgers Acquisition Date occurs, 25% of Consolidated Total Capitalization (determined as of the last day of the then most recently ended fiscal quarter of the Company) and (b) thereafter, 15% of Consolidated Total Capitalization (determined as of the last day of the then most recently ended fiscal quarter of the Company or determined as of such date if such date shall be the last day of a fiscal quarter of the Company); provided, however, that (x) no Lien created pursuant to Section 10.7(g10.6(g) shall secure any Primary Senior Debt unless the Notes are equally and ratably secured by all property subject to such Lien and (y) (i) no Subsidiary shall guaranty or otherwise be or become obligated in respect of any Primary Senior Debt unless such Subsidiary guaranties, or becomes similarly obligated in respect of, the Notes and (ii) such Primary Senior Debt (excluding (A) the Xxxxxxx LLC Debt and (B) the Indebtedness under the Folgers Bank Credit Agreement but including any refinancing, extension or replacement of the Indebtedness evidenced by the Folgers Bank Credit Agreement) is subject to the terms of the Intercreditor Agreement (or an intercreditor agreement in form and substance reasonably satisfactory to the Required Holders), in each case all pursuant to documentation reasonably satisfactory to the Required Holders; provided, further, however, that notwithstanding anything contained in this Section 10.6 10.5 to the contrary, the Company shall be under no obligation to (but may in its sole discretion) require any Foreign Subsidiary to guaranty the Debt under this Agreement and the Notes to the extent such Foreign Subsidiary’s obligations under all Primary Senior Debt consist solely of direct borrowings solely to such Foreign Subsidiary or a group of Foreign Subsidiaries (a “Foreign Borrowing”) or guaranties of a Foreign Borrowing by another Foreign Subsidiary.