Subordinated Indebtedness. The Borrower may after the date hereof incur additional Subordinated Indebtedness subject to the following conditions (each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative Agent): (a) such Indebtedness shall be subordinated to the obligations of the Borrower to pay principal of and interest on the Loans, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures; (b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures; (c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b); (d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder; (e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance; (f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance); (g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and (h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated Indebtedness.
Appears in 2 contracts
Sources: Credit Agreement (Constellation Brands, Inc.), Credit Agreement (Constellation Brands, Inc.)
Subordinated Indebtedness. The Borrower may after the date hereof incur additional Subordinated Indebtedness subject to the following conditions (each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative Agent):
(a) such Indebtedness shall be subordinated to the obligations of the Borrower to pay principal of and interest on the Loans, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no A Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to as such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified terms are defined in the foregoing clauses (a), (b), (e), (fIntercompany Subordinated Debt Documents) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal Intercompany Subordinated Debt or the occurrence of and interest any condition or event that results in the Intercompany Subordinated Debt becoming due prior to its scheduled maturity as of the Closing Date or permits any holder or holders of the Intercompany Subordinated Debt or any trustee or agent on its or their behalf to cause the Intercompany Subordinated Indebtedness Debt to become due, or require the prepayment, repurchase, redemption of defeasance thereof, prior to its scheduled maturity as in effect on of the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and Closing Date;
(ii) so long If any Loan Party makes any payment on account of the Intercompany Subordinated Debt or any Indebtedness or obligation which has been contractually subordinated to the Obligations other than payments which are permitted hereunder or by the applicable subordination provisions pertaining thereto, or if any Person who has subordinated such Indebtedness or obligations attempts to limit or terminate any applicable subordination provisions pertaining thereto, in each case, including the Intercompany Subordinated Debt Subordination Agreement;
(iii) A Default or Event of Default (as no Default shall have occurred and be continuing such terms are defined in the Alimco Subordinated Debt Documents) with respect to the Alimco Subordinated Debt or the occurrence of any condition or event that results in the Alimco Subordinated Debt becoming due prior to its scheduled maturity as of the Amendment No. 1 Effective Date or permits any holder or holders of the Alimco Subordinated Debt or any trustee or agent on its or their behalf to cause the Alimco Subordinated Debt to become due, or require the prepayment, repurchase, redemption of defeasance thereof, prior to its scheduled maturity as of the Amendment No. 1 Effective Date; or
(iv) If any Loan Party makes any payment on account of the Alimco Subordinated Debt or will occur as a result of any Indebtedness or obligation which has been contractually subordinated to the Obligations other than payments which are permitted hereunder or by the applicable subordination provisions pertaining thereto, or if any Person who has subordinated such payment)Indebtedness or obligations attempts to limit or terminate any applicable subordination provisions pertaining thereto, from in each case, including the proceeds of other Alimco Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated Indebtedness.Debt Subordination Agreement;
Appears in 2 contracts
Sources: Loan and Security Agreement (Kaspien Holdings Inc.), Loan and Security Agreement (Kaspien Holdings Inc.)
Subordinated Indebtedness. The Borrower may after the date hereof incur additional No Loan Party will, nor will it permit any Subsidiary to, directly or indirectly voluntarily prepay, defease or in substance defease, purchase, redeem, retire or otherwise acquire, any Subordinated Indebtedness subject or any Indebtedness from time to time outstanding under the following conditions (each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative Agent):Subordinated Indebtedness Documents, except:
(a) such Indebtedness shall be subordinated to the obligations of the Borrower to pay regularly scheduled interest and principal of payments as and interest on the Loans, the reimbursement obligation when due in respect of each LC Disbursement and all any Subordinated Indebtedness, other amounts payable hereunder on terms and conditions no less favorable to than payments prohibited by the Lenders than the terms and conditions of the Senior Subordinated Note Indenturessubordination provisions thereof;
(b) such refinancings of Subordinated Indebtedness shall be an obligation with the proceeds of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated Refinancing Indebtedness permitted in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indenturesthereof under Section 6.01;
(c) the Net Available Proceeds payments of such Indebtedness shall be applied to (i) prepay Loans or in accordance with Section 2.10(b)(iv), (ii) repay or prepay respect of Subordinated Indebtedness (made solely with Qualified Equity Interests in accordance with this Section 7.11) the Borrower or Senior Unsecured the conversion of any Subordinated Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b)into Qualified Equity Interests of the Borrower;
(d) prepayments of intercompany Subordinated Indebtedness permitted hereby owed by the terms Borrower or any Subsidiary to the Borrower or any Subsidiary, other than prepayments prohibited by the subordination provisions governing such Subordinated Indebtedness; provided that, for the avoidance of such Indebtedness shall not provide for payment doubt, the prepayment of any portion of Subordinated Indebtedness owed by the principal thereof prior Borrower or any Loan Party to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness any Subsidiary that is not a Loan Party shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, permitted so long as no Default or Event of Default shall have occurred and be continuing hereunder; andor would result after giving effect (including pro forma effect) thereto;
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a would result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Sectiontherefrom, the Borrower may redeem on any date make payments of or prepay in respect of Subordinated Indebtedness in an amount equal to the Available Amount on such date; provided, however, that at the time of the making of such payments and immediately after giving effect (including pro forma effect) to such payments made in reliance on this subclause (e), the Total Net Leverage Ratio on such date, calculated on a pro forma basis for the Test Period, is not in excess of 4.00 to 1.00; and
(f) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may on any date make additional payments of or in respect of Subordinated Indebtedness; provided that the Total Net Leverage Ratio immediately after giving effect to any such payment, calculated on a pro forma basis for the Test Period, is less than 3.00 to 1.00.
Appears in 2 contracts
Sources: Loan Agreement (Lifetime Brands, Inc), Loan Agreement (Lifetime Brands, Inc)
Subordinated Indebtedness. The Borrower may after GWG Parties will not, without the date hereof incur prior written consent of the Agent and the Lenders (i) make any payments in respect of outstanding Subordinated Indebtedness Debenture or cause the issuance of any additional Subordinated Indebtedness subject Debenture, if at the time of such proposed payment or issuance an Event of Default, Potential Event of Default or Termination Event exists or would result therefrom, (ii) issue any Subordinated Indebtedness Debenture other than Life Notes issued by GWG Life Settlements pursuant to the following conditions (each of which shall have been fulfilled in form Note Issuance and substance reasonably satisfactory Security Agreement and the Holdings Debentures issued by the Performance Guarantor pursuant to the Administrative Agent):
(a) such Indebtedness shall be subordinated to GWG Indenture and the obligations of Registration Statement, unless and until the Borrower to pay principal of Agent and interest on the Loans, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than have had a reasonable opportunity to review the related Subordinated Indebtedness Issuance Agreement and related Subordinated Indebtedness Prospectus and have consented to such issuance, such consent not to be unreasonably withheld, (iii) issue or permit the transfer of any Subordinated Indebtedness Debenture except in accordance with the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay applicable Subordinated Indebtedness (Issuance Agreement and in accordance a manner consistent with this Section 7.11) or Senior Unsecured the disclosures made in the applicable Subordinated Indebtedness (Prospectus including, without limitation, in accordance with Section 7.12) each case the transfer restrictions therein or (iiiiv) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, permit any Subordinated Indebtedness (Issuance Agreement, Subordinated Indebtedness Prospectus or enter into any transaction that has a substantially similar effect)Subordinated Indebtedness Debenture to be amended, supplemented or otherwise modified except for amendments, supplements and other modifications that (iI) are necessary to comply with changes in applicable securities laws for which the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof Agent is given prior or concurrent written notice or (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effectII) and (ii) so long as no Default shall do not have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated IndebtednessMaterial Adverse Effect.
Appears in 2 contracts
Sources: Credit and Security Agreement (GWG Holdings, Inc.), Credit and Security Agreement (GWG Holdings, Inc.)
Subordinated Indebtedness. The (a) Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any:
(i) Subordinated Indebtedness (other than Subordinated Indebtedness of the type described in the following clause (a)(ii)), except regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement relating to such Subordinated Indebtedness (and a Senior Officer or vice president of finance or similar officer having primary responsibility for financial matters of the Borrower may after shall certify to Administrative Agent, not less than five (5) Business Days prior to the date hereof incur additional of payment, that all conditions under such agreement have been satisfied); or
(ii) Subordinated Indebtedness subject to constituting Earnout Obligations in respect of any Permitted Acquisition, except payments made when the following conditions are satisfied:
(each A) no Potential Default or Event of which shall have been fulfilled in form and substance reasonably satisfactory Default has occurred or would result from such payment, and
(B) after giving effect to the Administrative Agent):consummation of such payment, the Loan Parties are in compliance with the financial covenants set forth in Sections 9.12 and 9.13 on a pro forma basis; provided, that such financial covenant shall be measured as of the most recently ended Fiscal Quarter for which the Loan Parties have delivered the financial statements required under Section 8.11(a) or 8.11(b), as the case may be, for the twelve fiscal month period then ended.
(ab) The Borrower will not, and will not permit any of its Subsidiaries to, agree to or permit any amendment, modification or waiver of any provision of any Subordinated Indebtedness Document if the effect of such amendment, modification or waiver is to (i) increase the yield on such Subordinated Indebtedness shall be subordinated or change (to earlier dates) the dates upon which principal and interest are due thereon; (ii) alter the redemption, prepayment or subordination provisions thereof; (iii) alter the covenants and events of default in a manner that would make such provisions more onerous or restrictive to the Borrower or any such Subsidiary; or (iv) otherwise increase the obligations of the Borrower to pay principal of and interest on the Loans, the reimbursement obligation or any Subsidiary in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable such Subordinated Indebtedness or confer additional rights upon the holders thereof which individually or in the aggregate would be adverse to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none or any of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to or the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated IndebtednessLenders.
Appears in 2 contracts
Sources: Incremental Facility Amendment to Credit Agreement (Cadre Holdings, Inc.), Credit Agreement (Cadre Holdings, Inc.)
Subordinated Indebtedness. The Borrower may after GWG Parties will not, without the date hereof incur prior written consent of the Agent and the Lenders (i) make any payments in respect of outstanding Subordinated Indebtedness Debenture or cause the issuance of any additional Subordinated Indebtedness subject Debenture, if at the time of such proposed payment or issuance an Event of Default, Potential Event of Default or Termination Event exists or would result therefrom, (ii) issue any Subordinated Indebtedness Debenture other than Life Notes issued by GWG Life Settlements pursuant to the following conditions (each of which shall have been fulfilled in form Note Issuance and substance reasonably satisfactory Security Agreement and the Holdings Debentures issued by the Performance Guarantor pursuant to the Administrative Agent):
(a) such Indebtedness shall be subordinated to GWG Indenture and the obligations of Registration Statement, unless and until the Borrower to pay principal of Agent and interest on the Loans, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than have had a reasonable opportunity to review the related Subordinated Indebtedness Issuance Agreement and related Subordinated Indebtedness Prospectus and have consented to such issuance, such consent not to be unreasonably withheld, (iii) issue or permit the transfer of any Subordinated Indebtedness Debenture except in accordance with the terms and conditions of the Senior applicable Subordinated Note Indentures;
Indebtedness Issuance Agreement and in a manner consistent with the disclosures made in the applicable Subordinated Indebtedness Prospectus including, without limitation, in each case the transfer restrictions therein or (biv) such permit any Subordinated Indebtedness shall Issuance Agreement, Subordinated Indebtedness Prospectus or Subordinated Indebtedness Debenture to be an obligation of amended, supplemented or otherwise modified except for amendments, supplements and other modifications that (I) are necessary to comply with changes in applicable securities laws for which the Borrower onlyAgent is given prior or concurrent written notice or (II) do not have a Material Adverse Effect. 53 (p) Life Notes. Since June 14, 2011, no GWG Party has issued, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness each GWG Party agrees that it shall not provide for payment of any portion of permit the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction Life Notes except for refinancing of Life Notes funded by existing Life Note investors that has a substantially similar effect), except that (i) do not have the Borrower may make payments on effect of increasing the regularly-scheduled payment dates with respect to outstanding principal balance of the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated IndebtednessLife Notes.
Appears in 1 contract
Sources: Credit and Security Agreement
Subordinated Indebtedness. The There shall occur any material default under any Subordinated Indebtedness, or there shall occur any event that requires Borrower may after the date hereof incur additional or any of its Subsidiaries to purchase, redeem or otherwise acquire or offer to purchase, redeem or otherwise acquire all or any portion of any Subordinated Indebtedness subject Indebtedness; or Borrower or any of its Subsidiaries shall for any reason purchase, redeem or otherwise acquire or offer to purchase, redeem or otherwise acquire, or make any other payments in respect of, all or any portion of any Subordinated Indebtedness, except to the following conditions extent expressly permitted by Subsection 7.5;
a. Any amounts described in clause (each b) above, when received by Administrative Agent, shall be held by Administrative Agent pursuant to the terms of the Security Agreement and shall be applied as therein provided. Notwithstanding anything contained in the second preceding paragraph, if at any time within sixty (60) days after an acceleration of the Loans pursuant to clause (ii) of such paragraph Borrower shall pay all arrears of interest and all payments on account of principal which shall have been fulfilled in form and substance reasonably satisfactory become due otherwise than as a result of such acceleration (with interest on principal and, to the Administrative Agent):
extent permitted by law, on overdue interest, at the rates specified in this Agreement) and all Events of Default and Potential Events of Default (a) such Indebtedness shall be subordinated to the obligations other than non-payment of the Borrower to pay principal of and accrued interest on the Loans, in each case which is due and payable solely by virtue of acceleration) shall be remedied or waived pursuant to Subsection X.F, then Requisite Lenders, by written notice to Borrower, may at their option rescind and annul such acceleration and its consequences; but such action shall not affect any subsequent Event of Default or Potential Event of Default or impair any right consequent thereon and, if the reimbursement obligation Commitments of Lenders to make Loans and issue or participate in respect Letters of Credit have been terminated pursuant to clause (ii), such Commitments shall be reinstated only with the approval of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable Lender directly affected. The provisions of this paragraph are intended merely to the bind Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall to a decision which may be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are made at the time customary in the market for subordinated debt being incurred by the election of Requisite Lenders and are not intended, directly or indirectly, to benefit Borrower, and in transactions, comparable such provisions shall not at any time be construed so as to grant Borrower the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios right to be calculated under the assumption that such Indebtedness was issued, at the beginning require Lenders to rescind or annul any acceleration hereunder or to preclude Administrative Agent or Lenders from exercising any of the respective period and that rights or remedies available to them under any other Indebtedness to be retired with of the proceeds thereof was in fact retired on such date of issuance);
(g) at Loan Documents, even if the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting conditions set forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first this paragraph of this Section, the Borrower may redeem or prepay such Subordinated Indebtednessare met.
Appears in 1 contract
Subordinated Indebtedness. The Borrower may after the date hereof incur additional Subordinated Indebtedness subject to the following conditions (each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative AgentRequired Lenders):
(a) such Indebtedness shall be subordinated to the obligations of the Borrower to pay principal of and interest on the Loans, the reimbursement obligation in respect of each LC Disbursement Reimbursement Obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations Reimbursement Obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) to the Net Available Proceeds extent required pursuant to Section 2.11(b)(v), proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with the manner provided in Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b2.11(b)(v);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrowerborrowers, and in transactions, comparable to the Borrower’s Borrower and proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);, and the Borrower shall have delivered to the Administrative Agent a certificate of a Financial Officer to such effect setting forth in reasonable detail the computations necessary to determine such compliance; and
(g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance hereunder and the Borrower shall deliver have delivered to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f))such effect. Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect)Indebtedness, except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and ), (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem Subordinated Indebtedness that is being refinanced with such proceeds, (iii) the Borrower or any Subsidiary may acquire Subordinated Indebtedness to the extent that the Borrower's investment therein is permitted by Section 7.06(i), and (iv) the Borrower may prepay such Subordinated Indebtedness, so long as (x) at the time thereof and after giving effect thereto no Default shall have occurred and be continuing and (y) the aggregate amount of all such prepayments, together with the aggregate amount of Restricted Payments made pursuant to section 7.07(b), shall not exceed $100,000,000. Neither the Borrower nor any of its Subsidiaries will consent to any modification, supplement or waiver of any of the provisions of any Subordinated Indebtedness if such amendment, supplement or waiver would (A) increase the amount of principal, interest or other amounts payable by the Borrower or any Subsidiary in respect thereof or change the date when any such amount is due, (B) amend any financial or other covenant, term of subordination, event of default or mandatory prepayment provision in respect thereof (in the case of any covenant, if such covenant, as amended, would be materially more restrictive on the Borrower or any Subsidiary) or (C) have a material adverse effect on (x) the legal ability or financial capacity of any Obligor to perform any of its obligations under this Agreement or any of the other Loan Documents to which it is a party or (y) the rights of or benefits available to the Lenders under this Agreement or any of the other Loan Documents.
Appears in 1 contract
Subordinated Indebtedness. The Borrower may after the date hereof incur additional Subordinated Indebtedness subject to the following conditions (each of which Company shall have been fulfilled in form not, and substance reasonably satisfactory to the Administrative Agent):shall not permit any Subsidiary to:
(a) such Indebtedness shall be subordinated to the obligations of the Borrower to pay principal of and interest on the Loansmake any voluntary prepayment on, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior or effect any voluntary redemption of, any Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to Debt if (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance or immediately after giving effect to such prepayment or redemption, any Default or Event of Default would occur or be continuing or (ii) the Company shall not have previously provided the Administrative Agent (which will promptly distribute to the Banks) a Compliance Certificate or Certificates establishing to the reasonable satisfaction of the Administrative Agent that based on projections using reasonable assumptions, the Company will be in compliance with Sections 12.15, 12.16, 12.17 and 12.18 hereof on a proforma basis after giving effect to the relevant prepayment or redemption, as the case may be, as of the close of each of the four fiscal quarters of the Company following the date of such Indebtednessprepayment or redemption (provided that no such Compliance Certificates need be provided for any such prepayment or redemption in any calendar year unless at the time of such prepayment or redemption, and immediately after giving effect thereto, the Borrower shall be aggregate amount of prepayments and redemptions of the Subordinated Debt during such year (excluding those made out of the proceeds of equity securities issued by the Company) would exceed $25,000,000 in compliance with Section 7.10 such year); or
(the determination b) make any other payment on account of such ratios to be calculated any Subordinated Debt which is prohibited under the assumption that terms of any instrument or agreement subordinating such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver indebtedness to the Administrative Agent a certificate prior payment of a Financial Officer to the effect specified in the foregoing clauses (a), (b), (e), any Obligations.
(f) Schedule 9.2 of the Credit Agreement shall be amended and (g) (and setting as so amended shall be restated to read as set forth in reasonable detail on Exhibit A hereto.
SECTION 2. NEW SUBORDINATED DEBT. Effective upon the computations necessary to determine compliance with said clause (f)). Neither acceptance hereof by the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund forRequired Banks, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any 1998 Senior Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Debt shall be deemed Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated IndebtednessDebt.
Appears in 1 contract
Subordinated Indebtedness. The Borrower may after term "Subordinated Indebtedness" shall mean all existing and hereafter arising indebtedness, obligations and liabilities of the Companies or the, shareholders of Holdings I to the Subordinated Creditors, whether direct or contingent, and all claims, rights, causes of action, judgments and decrees in respect of the foregoing, including, without limitation: (i) all indebtedness and obligations under (a) the Junior Subordinated Promissory Notes dated the date hereof incur additional Subordinated Indebtedness subject and issued by Holdings I to the following conditions Subordinated Creditors in the aggregate principal amount of $30,000,000 on the date hereof pursuant to that certain Securities Purchase Agreement dated the date hereof among Holdings I and the Subordinated Creditors (each of which shall have been fulfilled in form as the same may be amended from time to time, the "Subordinated Investment Agreement") and substance reasonably satisfactory (b) all promissory notes hereafter issued by Holdings I to the Administrative Agent):
Subordinated Creditors, including, without limitation, all promissory notes issued in respect of payment in kind interest and all promissory notes issued pursuant to the Subordinated Investment Agreement (all such notes described in the preceding clauses (a) such Indebtedness shall be subordinated to the obligations of the Borrower to pay principal of and interest on the Loans, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall being hereafter referred to collectively, as the same may be an obligation of amended from time to time, as the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior "Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(ivNotes"), (ii) repay or prepay Subordinated Indebtedness all indebtedness and obligations under (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(da) the terms of such Indebtedness shall not provide for payment of any portion of Warrants dated the principal thereof prior date hereof and issued by Holdings I to the date six months after the final maturity Subordinated Creditors for 14.02 shares of the Loans hereunder;
(e) terms in respect Common Stock of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect Holdings I on the date hereof (or, as pursuant to any Subordinated Indebtedness issued after that certain Warrant Agreement dated the date hereofhereof among Holdings I and the Subordinated Creditors (as the same may be amended from time to time, as originally in effectthe "Warrant Agreement") and (iib) so long all warrants hereafter issued pursuant to the Warrant Agreement (all such warrants described in the preceding clauses (a) and (b) being hereafter referred to collectively, as no Default shall have occurred and the same may be continuing (or will occur amended from time to time, as a result of such paymentthe "Warrants"), (iii) all indebtedness and obligations under that certain Voting and Co-Sale Agreement dated the date hereof among Holdings I and the Subordinated Creditors (as the same may be amended from time to time, the "Voting and Co-Sale Agreement"), (iv) all indemnification and other obligations of each party (other than the Subordinated Creditors) under the Subordinated Investment Agreement, the Warrant Agreement and the Voting and Co-Sale Agreement (the Subordinated Notes, the Warrants, the Subordinated Investment Agreement, the Warrant Agreement and the Voting and Co-Sale Agreement and any other agreement evidencing or relating to Subordinated Indebtedness being hereinafter collectively referred to as the "Subordinated Agreements") and (v) all obligations of Holdings I to repurchase or redeem the Subordinated Notes or the Warrants (together with the Subordinated Notes, the "Subordinated Securities") whether pursuant to a put under the Warrant Agreement or otherwise from the proceeds Subordinated Creditors pursuant to the terms of other the Subordinated Indebtedness issued in accordance with the first paragraph of this SectionInvestment Agreement, the Borrower may redeem Warrant Agreement or prepay such Subordinated Indebtednessotherwise.
Appears in 1 contract
Sources: Subordination and Intercreditor Agreement (Liberman Television Inc)
Subordinated Indebtedness. The Borrower may after Guarantor hereby agrees that the date hereof incur additional Subordinated Indebtedness subject (as hereinafter defined) shall be subordinate and junior in right of payment to the following conditions (each prior payment in full of which shall have been fulfilled in form all Obligations, and substance reasonably satisfactory Guarantor hereby assigns the Subordinated Indebtedness to Bank as security for the Administrative Agent):
(a) such Indebtedness Obligations. If any sums shall be subordinated paid to Guarantor by Borrower or any other person or entity on account of the Subordinated Indebtedness, such sums shall be held in trust by Guarantor for the benefit of Bank and shall forthwith be paid to Bank without affecting the liability of Guarantor under this Guaranty and may be applied by Bank against the Obligations in such order and manner as Bank may determine in its sole discretion. Upon the request of Bank, Guarantor shall execute, deliver, and endorse to Bank such documents and instruments as Bank may request to perfect, preserve, and enforce its rights hereunder. For purposes of this Guaranty, the term “Subordinated Indebtedness” means all indebtedness, liabilities, and obligations of Borrower to Guarantor, other than salary and ordinary business expense reimbursements for the prior month (which if not paid in the month following the month in which they were incurred shall become Subordinated Indebtedness, whether such indebtedness, liabilities, and obligations now exist or are hereafter incurred or arise, or whether the obligations of the Borrower to pay principal thereon are direct, indirect, contingent, primary, secondary, several, joint and several, or otherwise, and irrespective of whether such indebtedness, liabilities, or obligations are evidenced by a note, contract, open account, or otherwise, and interest on the Loans, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions irrespective of the Senior Subordinated Note Indentures;
(b) person or persons in whose favor such Indebtedness shall be an obligation of the Borrower onlyindebtedness, and none of its Subsidiaries shall be contingently obligations, or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issuedliabilities may, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuancetheir inception, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for valuebeen, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition ofmay hereafter be created, or make any voluntary payment the manner in which they have been or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and hereafter be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated Indebtednessacquired by Guarantor.
Appears in 1 contract
Subordinated Indebtedness. The Borrower may after (i) We hereby represent and warrant that set forth on Schedule I is a list of all Subordinated Note Holders and a description of all indebtedness owing by us to each Subordinated Note Holder, containing the outstanding principal amount due as of the date hereof incur additional under the subordinated promissory notes (the "Subordinated Indebtedness subject Promissory Notes") made by us to the following conditions (each of which shall have been fulfilled in form Subordinated Note Holders and substance reasonably satisfactory to the Administrative Agent):all other material terms.
(aii) such Indebtedness shall be We hereby acknowledge and agree that all payments due under the Subordinated Promissory Notes expressly is subordinated to the obligations prior payment in full in cash of the Borrower to pay principal of and interest on the Loans, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;.
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) Notwithstanding any provision of the terms of such Indebtedness shall not provide for Subordinated Promissory Notes, we agree that no payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenantsprincipal, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrowerinterest, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, fees or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates due with respect to the principal Subordinated Promissory Notes shall be made until all of the Loans are paid in full in cash and interest on the Subordinated Indebtedness your commitment to extend credit to us shall have expired; provided that as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have event of default has occurred and be continuing (or will occur be created as a result of such paymentthereof (in each case determined in your sole discretion), from we may make regularly scheduled semiannual interest payments to the proceeds Subordinated Note Holders pursuant to the terms of the Subordinated Promissory Notes.
(iv) We agree that we shall not agree to any amendment, extension, renewal, supplement or other modification of any of the terms of the Subordinated Indebtedness issued Promissory Notes, including, without limitation, any amendment, extension, renewal, supplement or other modification the effect of which is to increase the principal amount of any Subordinated Promissory Note or rate of interest thereunder, to change the maturity date of any Subordinated Promissory Note or otherwise alter the payment terms of same, without your prior written consent, which consent may be given or withheld in accordance with your sole discretion.
(v) We represent and warrant that no event of default has occurred or is continuing under any of the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated IndebtednessPromissory Notes.
Appears in 1 contract
Sources: Financing Agreement (Delicious Frookie Co Inc /De/)
Subordinated Indebtedness. The Borrower may after GWG Parties will not, without the date hereof incur additional Subordinated Indebtedness subject to the following conditions (each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative Agent):
(a) such Indebtedness shall be subordinated to the obligations prior written consent of the Borrower to pay principal of Agent and interest on the Loans, the reimbursement obligation Lenders (i) make any payments in respect of each LC Disbursement outstanding Subordinated Indebtedness or cause the issuance of any additional Subordinated Indebtedness, if at the time of such proposed payment or issuance an Event of Default, Potential Event of Default or Termination Event exists or would result therefrom, (ii) issue any Subordinated Indebtedness, unless and all other amounts payable hereunder on terms until the Agent and conditions no less favorable the Lenders have had a reasonable opportunity to review the related Subordinated Indebtedness Issuance Agreement and related Subordinated Indebtedness Prospectus (the filing of such documents with the SEC shall be deemed notice to the Agent and Lenders than and an opportunity to review) and have consented to such issuance, such consent not to be unreasonably withheld (Agent and Lenders shall be deemed to have consented to such issuance if they have not provided a written objection to the Seller within five (5) Business Days after the filing of such documents), (iii) issue or permit the transfer of any Subordinated Indebtedness except in accordance with the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay applicable Subordinated Indebtedness (Issuance Agreement and in accordance a manner consistent with this Section 7.11) or Senior Unsecured the disclosures made in the applicable Subordinated Indebtedness (Prospectus including, without limitation, in accordance with Section 7.12) each case the transfer restrictions therein or (iiiiv) finance one permit any Subordinated Indebtedness Issuance Agreement, Subordinated Indebtedness Prospectus or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Subordinated Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
amended, supplemented or otherwise modified except for amendments, supplements and other modifications that (gI) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations are necessary to determine compliance comply with said clause changes in applicable securities laws for which the Agent is given prior or concurrent written notice or (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for II) do not have a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated IndebtednessMaterial Adverse Effect.
Appears in 1 contract
Subordinated Indebtedness. The Borrower may after the date hereof incur additional Subordinated Indebtedness subject to the following conditions (each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative Agent):
(a) such Indebtedness shall be subordinated to the obligations of the Borrower to pay principal of and interest on the Loans, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no A Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to as such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified terms are defined in the foregoing clauses (a), (b), (e), (fIntercompany Subordinated Debt Documents) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal Intercompany Subordinated Debt or the occurrence of and interest any condition or event that results in the Intercompany Subordinated Debt becoming due prior to its scheduled maturity as of the Closing Date or permits any holder or holders of the Intercompany Subordinated Debt or any trustee or agent on its or their behalf to cause the Intercompany Subordinated Indebtedness Debt to become due, or require the prepayment, repurchase, redemption of defeasance thereof, prior to its scheduled maturity as in effect on of the date hereof (Closing Date; or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and
(ii) so long If any Loan Party makes any payment on account of the Intercompany Subordinated Debt or any Indebtedness or obligation which has been contractually subordinated to the Obligations other than payments which are permitted hereunder or by the applicable subordination provisions pertaining thereto, or if any Person who has subordinated such Indebtedness or obligations attempts to limit or terminate any applicable subordination provisions pertaining thereto, in each case, including the Intercompany Subordinated Debt Subordination Agreement;
(iii) A Default or Event of Default (as no Default shall have occurred and be continuing such terms are defined in the Alimco Subordinated Debt Documents) with respect to the Alimco Subordinated Debt or the occurrence of any condition or event that results in the Alimco Subordinated Debt becoming due prior to its scheduled maturity as of the Amendment No. 1 Effective Date or permits any holder or holders of the Alimco Subordinated Debt or any trustee or agent on its or their behalf to cause the Alimco Subordinated Debt to become due, or require the prepayment, repurchase, redemption of defeasance thereof, prior to its scheduled maturity as of the Amendment No. 1 Effective Date; or
(iv) If any Loan Party makes any payment on account of the Alimco Subordinated Debt or will occur as a result of any Indebtedness or obligation which has been contractually subordinated to the Obligations other than payments which are permitted hereunder or by the applicable subordination provisions pertaining thereto, or if any Person who has subordinated such payment)Indebtedness or obligations attempts to limit or terminate any applicable subordination provisions pertaining thereto, from in each case, including the proceeds of other Alimco Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated Indebtedness.Debt Subordination Agreement;
Appears in 1 contract
Sources: Loan and Security Agreement (Trans World Entertainment Corp)
Subordinated Indebtedness. The Borrower may after the date hereof incur additional Subordinated Indebtedness subject to the following conditions (In addition and not in limitation of paragraph 6 hereof, each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative Agent):Guarantor agrees as follows:
(a) such Each Guarantor hereby agrees that the Subordinated Indebtedness (as defined below) shall be subordinate and junior in right of payment to the prior payment in full of all Guaranteed Obligations as herein provided. The Subordinated Indebtedness shall not be payable, and no payment of principal, interest or other amounts on account thereof, and no property or guarantee of any nature to secure or pay the Subordinated Indebtedness shall be subordinated to the obligations made or given, directly or indirectly by or on behalf of the Borrower to pay principal of and interest on the Loans, the reimbursement obligation any Other Party (as defined in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11paragraph 7 above) or Senior Unsecured Indebtedness (received, accepted, retained or applied by any Guarantor unless and until the Guaranteed Obligations shall have been paid in accordance with Section 7.12) or (iii) finance full in cash for one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof year; except that prior to receipt of a notice from the date six months after the final maturity of the Loans hereunder;
Administrative Agent under this paragraph (e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall which may be terms that are given at the any time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no Default or an Event of Default exists), a Guarantor shall have occurred the right to receive payments on the Subordinated Indebtedness made in the ordinary course of business. After receipt of the notice from the Administrative Agent delivered under the preceding sentence, no payments of principal or interest or any other amounts may be made or given, directly or indirectly, by or on behalf of any Other Party or received, accepted, retained or applied by any Guarantor unless and until the Guaranteed Obligations shall have been paid in full in cash for one year. If any sums shall be continuing paid to a Guarantor by any Other Party or any other Person on account of the Subordinated Indebtedness when such payment is not permitted hereunder; and
(h) prior to , such issuance sums shall be held in trust by such Guarantor for the Borrower benefit of the Creditors and shall deliver forthwith be paid to the Administrative Agent without affecting the liability of any Guarantor under this Guaranty Agreement and may be applied by the Administrative Agent against the Guaranteed Obligations. Upon the request of the Administrative Agent, a certificate of a Financial Officer Guarantor shall execute, deliver, and endorse to the effect specified in Administrative Agent such documentation as the foregoing clauses (a)Administrative Agent may request to perfect, (b)preserve, (e), (f) and (g) (enforce its rights hereunder. For purposes of this Guaranty Agreement and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to a Guarantor, the principal of and interest on the term "Subordinated Indebtedness as in effect on the date hereof (orIndebtedness" means, as with respect to any Subordinated Indebtedness issued after Guarantor, all indebtedness, liabilities, and obligations of any Other Party to such Guarantor, whether such indebtedness, liabilities, and obligations now exist or are hereafter incurred or arise, or are direct, indirect, contingent, primary, secondary, several, joint and several, or otherwise, and irrespective of whether such indebtedness, liabilities, or obligations are evidenced by a note, contract, open account, or otherwise, and irrespective of the date hereofPerson or Persons in whose favor such indebtedness, as originally obligations, or liabilities may, at their inception, have been, or may hereafter be created, or the manner in effect) and (ii) so long as no Default shall which they have occurred and been or may hereafter be continuing (or will occur as a result of acquired by such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated IndebtednessGuarantor.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Lennox International Inc)
Subordinated Indebtedness. The Borrower may after the date hereof incur additional Subordinated Indebtedness subject to the following conditions (each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative Agent):
(a) such Indebtedness shall be subordinated to the obligations of the Borrower to pay principal of and interest on the Loans, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations Reimbursement Obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated Indebtedness.
Appears in 1 contract
Subordinated Indebtedness. The Borrower may after shall not, and shall not permit any of its Subsidiaries to, amend or otherwise change the date hereof incur additional terms of any Subordinated Indebtedness subject (including without limitation the Indenture and each of the exhibits thereto), and the Borrower shall not permit any Subsidiary to amend or otherwise change its guarantee in respect of the Subordinated Indebtedness or any agreements relating to the following conditions (each Subordinated Indebtedness, nor shall the Borrower make, or permit any Subsidiary to make, any payment consistent with an amendment thereof or change thereto, if the effect of such amendment or change is to increase the interest rate on such Subordinated Indebtedness, change any dates upon which shall have been fulfilled payments of principal or interest are due thereon, change any of the covenants with respect thereto in form and substance reasonably satisfactory a manner which is more restrictive to the Administrative Agent):
Borrower or any of its Subsidiaries, change any event of default or condition to an event of default with respect thereto, change the redemption, prepayment or defeasance provisions thereof, change the subordination provisions thereof, or change any collateral therefor (aother than to release such collateral) or if the effect of such Indebtedness shall be subordinated amendment or change, together with all other amendments or changes made, is to increase the obligations of the Borrower thereunder or to pay principal of and interest confer any additional rights on the Loans, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations holders of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effecttrustee or other representative on their behalf) which would be adverse to the Banks. Anything in this subsection 12 (r) to the contrary notwithstanding, Borrower and its Subsidiaries shall have the right, without being in violation of this subsection (r), except that (i) to obtain consents under the Borrower may make payments on provisions of the regularly-scheduled payment dates with respect Indenture to permit any actions or inactions that are otherwise permitted under the principal of and interest on the Subordinated Indebtedness Credit Agreement (as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effectamended by this Second Amendment) and (ii) so long as no Default to obtain waivers of any default or events of default under the Indenture. Without limitation of the foregoing, the Borrower shall have occurred and be continuing not make (or will occur as a result give any notice in respect of) any voluntary or optional payment or prepayment or redemption or defeasance of or with respect to the Subordinated Indebtedness or any portion thereof without the consent of the Majority Banks, except that the foregoing shall not apply to any voluntary or optional payment or prepayment or redemption or defeasance of or with respect to the Subordinated Indebtedness thereof if such payment), prepayment, redemption or defeasance is (i) made from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph issuance and sale of this Section, Borrower's equity made for the Borrower may redeem specific purpose of retiring a part or prepay such all of the Subordinated Indebtedness, or (ii) made at a time when nothing is outstanding, principal or interest, on the Revolving Commitment."
5. Section 13 of the Credit Agreement shall be amended in the following respects:
(a) By deleting Subsection (j) therefrom in its entirety and substituting the following in respect thereof:
Appears in 1 contract
Subordinated Indebtedness. The Borrower may after the date hereof incur additional Subordinated Indebtedness subject will not, and will not permit any Subsidiary to, make any amendment or modification to the following conditions (each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative Agent):
(a) such Indebtedness shall be subordinated to the obligations of the Borrower to pay principal of and interest on the Loansindenture, the reimbursement obligation in respect of each LC Disbursement and all note or other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior agreement evidencing or governing any Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect theretoor directly or indirectly voluntarily prepay, the Borrower shall be defease or in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issuedsubstance defease, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for valueacquire, any Subordinated Indebtedness. The Borrower shall not permit any Subsidiary to amend or otherwise change its guarantee in respect of the Subordinated Indebtedness or any agreements relating to the Subordinated Indebtedness, nor shall the Borrower make, or set apart permit any money for Subsidiary to make, any payment consistent with an amendment thereof or change thereto, if the effect of such amendment or change is to increase the interest rate on such Subordinated Indebtedness, change any dates upon which payments of principal or interest are due thereon, change any of the covenants with respect thereto in a sinkingmanner which is more restrictive to the Borrower or any of its Subsidiaries, defeasance change any event of default or other analogous fund forcondition to an event of default with respect thereto, change the purchase, redemption, retirement prepayment or other acquisition ofdefeasance provisions thereof, change the subordination provisions thereof, or make change any voluntary payment collateral therefor (other than to release such collateral) or prepayment if the effect of such amendment or change, together with all other amendments or changes made, is to increase the obligations of the principal Borrower thereunder or to confer any additional rights on the holders of or interest on, or any other amount owing in respect of, any such Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect)trustee or other representative on their behalf) which would be adverse to the Lenders. Anything in this Section 6.18 to the contrary notwithstanding, except that Borrower and its Subsidiaries shall have the right, without being in violation of this Section 6.18, (i) to obtain consents under the provisions of the Indenture to permit any actions or inactions that are otherwise permitted under this Agreement and (ii) to obtain waivers of any default or events of default under the Indenture. Without limitation of the foregoing, the Borrower may shall not make payments on the regularly-scheduled (or give any notice in respect of) any voluntary or optional payment dates or prepayment or redemption or defeasance of or with respect to the principal of and interest on the Subordinated Indebtedness as in effect on or any portion thereof without the date hereof (or, as to any Subordinated Indebtedness issued after consent of all of the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated IndebtednessLenders.
Appears in 1 contract
Subordinated Indebtedness. The Borrower Company may after the date hereof incur additional Subordinated Indebtedness subject to the following conditions (each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative Agent):Majority Banks:
(a) such Indebtedness shall be subordinated to the obligations of the Borrower Company to pay principal of and interest on the Loans, the reimbursement obligation in respect of each LC Disbursement Reimbursement Obligations and all other amounts payable hereunder on terms in form and conditions no less favorable substance satisfactory to the Lenders than Majority Banks, it being understood that the terms and conditions provisions of the Senior Subordinated Note IndenturesIndenture are satisfactory to the Majority Banks;
(b) such Indebtedness shall be an obligation of the Borrower Company only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations Reimbursement Obligations and all other amounts payable hereunder on terms in form and conditions no less favorable substance satisfactory to the Lenders than Majority Banks, it being understood that the terms and conditions provisions of the Senior Subordinated Note IndenturesIndenture are satisfactory to the Majority Banks;
(c) the Net Available Proceeds aggregate principal amount of such Indebtedness together with the aggregate principal amount of all other Subordinated Indebtedness of the Company shall not exceed $280,000,000 at any one time (including interest that will accrue after the date of issuance); Credit Agreement
(d) to the extent required pursuant to Section 2.12(f) hereof, proceeds of such Indebtedness shall be applied to (i) prepay Loans (and/or provide cover for the Letter of Credit Liabilities) in accordance with the manner provided in said Section 2.10(b)(iv2.12(f), (ii) repay or prepay provided that in the event any such proceeds shall be applied to refinance other Subordinated Indebtedness, the aggregate principal amount of any such refinancing Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured shall not exceed the aggregate principal amount, plus accrued interest and premium, if any, on the Subordinated Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b)being refinanced;
(de) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower Interest Coverage Ratio shall not be less than the ratio in compliance with effect at that time as set out in Section 7.10 9.10(c) hereof (the determination of Interest Expense for such ratios purpose to be calculated under the assumption that such Indebtedness was issued, issued at the beginning of the respective such period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall have been reasonably determined by the Majority Banks to be terms that are at the time customary in the market for subordinated debt being incurred by borrowers, and in transactions, comparable in the reasonable judgment of the Majority Banks to the Company and proposed debt issuance, it being understood that the terms in respect of financial and other covenants, events of default and mandatory prepayments included in the Senior Subordinated Note Indenture are, in the judgment of the Majority Banks, comparable to those customary in such market;
(h) at the time of issuance of such Indebtedness, and after giving effect thereto, the Company shall be in compliance with Section 9.10 hereof (the determination of such ratios (and such amount with respect to Tangible Net Worth) to be calculated under the assumption that such Indebtedness was issued, at the beginning of such period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance), and the Company shall have delivered to the Administrative Agent a certificate of its chief financial officer to such effect Credit Agreement setting forth in reasonable detail the computations necessary to determine such compliance; and
(i) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance hereunder and the Borrower Company shall deliver have delivered to the Administrative Agent a certificate of a Financial Officer its chief financial officer to the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f))such effect. Neither the Borrower Company nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect)Indebtedness, except that the Company may (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) ), and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this SectionSection 9.17, redeem Subordinated Indebtedness that is being refinanced as contemplated in clause (d) of the Borrower may redeem first paragraph of this Section 9.17. Neither the Company nor any of its Subsidiaries will consent to any modification, supplement or prepay such waiver of any of the provisions of any Subordinated IndebtednessIndebtedness without the prior consent of the Administrative Agent (with the approval of the Majority Banks).
Appears in 1 contract
Subordinated Indebtedness. The Borrower may after the date hereof incur additional unsecured Subordinated Indebtedness subject to the following conditions (each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative Agent):conditions:
(a) such Indebtedness shall be subordinated to the obligations of the Borrower to pay principal of and interest on the Loans, the reimbursement obligation in respect of each any LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable such subordination of the Initial Subordinated Indebtedness only, shall be in form and substance reasonably satisfactory to the Lenders than Administrative Agent (the terms and conditions subordination provisions of any subsequent Subordinated Indebtedness shall be substantially similar to those of the Senior Initial Subordinated Note IndenturesIndebtedness);
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereofexcept that any Subsidiary Loan Party may Guarantee any such Indebtedness, unless so long as such Guarantee is subordinated to the obligations of such Subsidiary to pay principal Loan Party AMENDMENT NO. 1 TO THE CREDIT AGREEMENT --------------------------------------- -4- under the Guarantee Agreement and the Security Documents and such subordination of the Guarantee of the Initial Subordinated Indebtedness only, shall be in form and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable substance reasonably satisfactory to the Lenders than Administrative Agent (the terms and conditions subordination provisions of the Senior Guarantee of any subsequent Subordinated Note IndenturesIndebtedness shall be substantially similar to those of the Guarantee of the Initial Subordinated Indebtedness);
(c) to the extent required pursuant to Section 2.11(b), the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with the manner provided in Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b2.11(e);
(d) the terms of such Indebtedness shall not provide for payment scheduled amortization of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder, it being understood that asset sale offers and change of control offers are not deemed scheduled amortization;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be on terms that are at the time customary in the market for subordinated debt being incurred by the Borrowerborrowers, and in transactions, comparable to the Borrower’s Borrower and the proposed debt issuance;
(f) the terms and conditions of such Indebtedness shall not contain any provision permitting the maturity of such Indebtedness to be accelerated upon the occurrence of a Default or Event of Default hereunder (but may contain a provision permitting acceleration of such Indebtedness upon the acceleration of the Loans hereunder or upon the failure of the Borrower to make a principal payment at final maturity of the Loans hereunder);
(g) the terms and conditions of such Indebtedness shall contain financial covenants which are no more restrictive to the Loan Parties than the covenants in this Agreement and other covenants which, when taken as a whole, are no more restrictive to the Loan Parties than the covenants in this Agreement;
(h) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 Sections 6.15 through 6.17 (the determination of such ratios compliance to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);, and the Borrower shall have delivered to the Administrative Agent a certificate of a Financial Officer to such effect setting forth in reasonable detail the computations necessary to determine such compliance; and
(gi) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance hereunder and the AMENDMENT NO. 1 TO THE CREDIT AGREEMENT --------------------------------------- Borrower shall deliver have delivered to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a)such effect. Following any such issuance of Subordinated Indebtedness, (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect)Indebtedness, except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long ). The Borrower will not designate any Indebtedness as no Default shall have occurred and be continuing "Designated Senior Indebtedness" (or will occur as a result equivalent term) under any indenture in respect of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance other than the Indebtedness hereunder. Neither the Borrower nor any of its Subsidiaries will consent to any modification, supplement or waiver of any of the provisions of any Subordinated Indebtedness following its issuance if any such modification, supplement or waiver would render such Subordinated Indebtedness no longer compliant with the first paragraph provisions of this Section, Section 6.18 without the Borrower may redeem or prepay such Subordinated Indebtednessprior written consent of the Required Lenders."
Appears in 1 contract
Subordinated Indebtedness. The Borrower may after will not, and will not permit any Subsidiary to, make any amendment or modification to the date hereof incur additional indenture, note or other agreement evidencing or governing any Subordinated Indebtedness subject which is adverse to the following conditions (each interests of which shall have been fulfilled the Lenders, or directly or indirectly voluntarily prepay, defease or in form and substance reasonably satisfactory to the Administrative Agent):
(a) such defease, purchase, redeem, retire or otherwise acquire, any Subordinated Indebtedness. No Permitted Subordinated Indebtedness shall bear interest required to be subordinated paid in cash at a rate in excess of 12% per annum. The Borrower shall exercise any option that permits it to the obligations of the Borrower to pay principal of and capitalize interest on the Loans, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness in excess of 12% per annum. The Borrower shall give the Agent five (in accordance with this Section 7.115) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) Business Days’ prior written notice of the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior amendment or modification to the date six months after indenture, note or other agreement evidencing or governing any Subordinated Indebtedness. Notwithstanding the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenantsforegoing, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, so long as no Default or Event of Unmatured Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a)or would result therefrom, (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the repurchase Subordinated Indebtedness as in effect on with the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) proceeds of a Permitted Refinancing and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay repurchase any Subordinated Indebtedness, provided that the aggregate purchase price for such Subordinated IndebtednessIndebtedness (including principal and premium) so repurchased on a cumulative basis shall not exceed $235,000,000 and that such repurchased Subordinated Indebtedness shall be cancelled and not reissued.
Appears in 1 contract
Subordinated Indebtedness. The Borrower may after the date hereof incur (a) Issue additional Subordinated Indebtedness subject to Indebtedness, unless the following conditions (are satisfied in connection with each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative Agent):such issuance:
(a) such Indebtedness shall be subordinated to the obligations of the Borrower to pay principal of and interest on the Loans, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing continuing;
(ii) the maturity date of any issuance of the Subordinated Indebtedness must extend at least one hundred seventy-nine (179) days beyond the Maturity Date of this Agreement;
(iii) the provisions pursuant to which such Subordinated Indebtedness are subordinate to the Obligations shall be substantially the same as those contained in Borrower’s Subordinated Indebtedness outstanding on the date hereof or otherwise acceptable to Administrative Agent in the exercise of its reasonable discretion, and shall include, without limitation, standstill and payment blockage requirements on the holders of such Subordinated Indebtedness for a period of at least one hundred seventy-nine (179) days following a Default or Event of Default hereunder;
(iv) the covenants contained in any indenture or other agreement relating to such Subordinated Indebtedness must be less restrictive than the covenants contained in this Agreement;
(v) such Subordinated Indebtedness must be unsecured; and
(hvi) prior to the outstanding principal amount of any such issuance Subordinated Indebtedness having a maturity date of less than one year from the Borrower shall deliver to date of the Administrative Agent a certificate of a Financial Officer to determination must be covered by the effect specified Borrowing Base as indicated in the foregoing clauses (a), definition of “Borrowing Base Availability” in Section 1.01 above.
(b)) Without the prior written consent of the Required Lenders:
(i) repay, (e)prepay, (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire redeem or otherwise acquire for valueany Subordinated Indebtedness, provided, however, that nothing contained in this Section 7.07 shall prevent any member of the Consolidated Group from (A) making regularly scheduled payments of principal and interest on any Subordinated Indebtedness if no Default or Event of Default exists and the payments would not cause a Default or Event of Default to occur, or set apart (B) prepaying or repurchasing any money Subordinated Indebtedness if no Default or Event of Default exists and the payments would not cause a Default or Event of Default to occur; or
(ii) other than in connection with the action permitted in clause (i) above, permit the modification, waiver or amendment of any of the terms of any Subordinated Indebtedness, except for a sinkingmodifications, defeasance waivers or amendments that do not (x) increase the interest rate, fees or other analogous fund forcharges provided for therein or change the maturity date or any other scheduled date for repayment of principal of such Subordinated Indebtedness, (y) change the purchasesubordination provisions of such Subordinated Indebtedness or (z) impose upon any member of the Consolidated Group any obligation or limitation that, redemptionin the reasonable judgment of Administrative Agent, retirement is, in any material respect, more burdensome or restrictive than those currently provided for in this Agreement; or
(iii) other acquisition than in connection with the action permitted in clause (i) above, permit (whether or not within the control of a member of the Consolidated Group) the modification, waiver, or amendment of, or make release of any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect ofparties to, any Subordinated Indebtedness (subordination agreement or enter into subordination provisions contained in any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates indenture with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated Indebtedness.
Appears in 1 contract
Sources: Senior Unsecured Revolving Credit Agreement (Wci Communities Inc)
Subordinated Indebtedness. The Borrower may after the date hereof incur additional Subordinated Indebtedness subject to the following conditions (each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative Agent):
(a) The Borrower will not, and will not permit any of its Subsidiaries to (i) prepay, redeem, repurchase or otherwise acquire for value the Convertible Notes, or (ii) make any principal, interest or other payments on the Convertible Notes that is not expressly permitted by the subordination provisions of the Indenture.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, agree to or permit any amendment, modification or waiver of any provision of the Convertible Notes or the Indenture if the effect of such Indebtedness shall be subordinated amendment, modification or waiver is to (i) increase the interest rate on the Convertible Notes or change (to earlier dates) the dates upon which principal and interest are due thereon; (ii) alter the redemption, prepayment or subordination provisions thereof; (iii) alter the covenants and events of default in a manner that would make such provisions more onerous or restrictive to the Borrower or any such Subsidiary; or (iv) otherwise increase the obligations of the Borrower to pay principal of and interest on the Loans, the reimbursement obligation or any Subsidiary in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable the Convertible Notes or the Indenture or confer additional rights upon the holders thereof which individually or in the aggregate would be adverse to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none or any of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to or the effect specified in the foregoing clauses (a)Lenders; provided, (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Sectionhowever, the Borrower may redeem enter into any extensions, renewals and replacements of the Convertible Notes or prepay the Indenture which (x) net of financing fees and expenses do not increase the outstanding principal amount thereof in excess of $200,000,000 (immediately prior to giving effect to such Subordinated Indebtednessextension, renewal or replacement), (y) shorten the maturity or the weighted average life thereof, or (z) alter the redemption, prepayment or subordination provisions thereof.
Appears in 1 contract
Subordinated Indebtedness. The Borrower may after the date hereof incur additional Subordinated Indebtedness subject Obligations constitute senior indebtedness that is entitled to the following conditions (each benefits of which shall the subordination provisions, if any, of all Indebtedness of any of the Credit Parties. As of the Closing Date, Parent and Borrower have been fulfilled in form and substance reasonably satisfactory delivered to the Administrative Agent):
Agent complete and correct copies of the Parent Sub Debt Documents and the Seller Subordination Agreement. Parent has issued, pursuant to due authorization, the Parent Subordinated Debt under the applicable Parent Sub Debt Documents. The Parent Sub Debt Documents and the Seller Subordination Agreement constitute the legal, valid and binding obligations of Parent enforceable against the Parent in accordance with their terms (a) except as such Indebtedness shall enforceability may be subordinated limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by principles of equity). The subordination provisions of the Seller Subordination Agreement are enforceable against the ACN Seller by the holder of any “Senior Indebtedness” or similar term referring to the obligations of Obligations (as defined in the Borrower Seller Subordination Agreement). The Obligations, including those to pay principal of and interest (including post-petition interest, whether or not allowed as a claim under bankruptcy or similar laws) on the LoansLoans and drawings made under any Letters of Credit, and fees and expenses in connection therewith, constitute “Senior Indebtedness” or similar term relating to the reimbursement obligation Obligations (as defined in respect of each LC Disbursement the Seller Subordination Agreement) and all other amounts payable hereunder on terms and conditions no less favorable such Obligations will be entitled to the Lenders than the terms and conditions benefits of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation subordination created by the Seller Subordination Agreement and the Parent Sub Debt Documents. Each of Parent and Borrower acknowledges that the Administrative Agent, each Lender and the Issuing Lender entered into this Agreement and extended its Commitments in reliance upon the subordination provisions of the Borrower only, Seller Subordination Agreement and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated IndebtednessParent Sub Debt Documents.
Appears in 1 contract
Subordinated Indebtedness. The Borrower Corporation may after the date hereof incur additional Subordinated Indebtedness subject without limit as to the following conditions (each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative Agent):
(a) principal amount, provided such Indebtedness shall be subordinated to is evidenced by an instrument containing provisions for the obligations of the Borrower to pay principal of and interest on the Loans, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds subordination of such Indebtedness (to which appropriate reference shall be applied made in the instrument evidencing such Indebtedness) to (i) prepay Loans in accordance the Bonds, the Note and any Additional Obligations with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant respect to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion out of the principal thereof prior to Trust Estate, so that if at any time the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower Corporation shall be in default in paying either interest on or principal of the Bonds, the Note and Additional Obligations or if the Corporation shall be in default in making any payments required to be made under the provisions of Section 4.1 of this Loan Agreement, the Corporation shall make no payments of either principal of or interest on said Subordinated Indebtedness until said default or defaults be cured. Indebtedness may be classified and incurred under any of the above-referenced subsections with respect to which the tests set forth in such subsections are met. The Corporation may elect to have Indebtedness that was classified and issued pursuant to one provision of this Section, reclassified as having been incurred under another provision of this Section, by demonstrating compliance with Section 7.10 (the determination of such ratios to be calculated under other provision on the assumption that such Indebtedness was issued, at is being reissued on the beginning date of delivery of the respective period and that any other Indebtedness materials required to be retired delivered under such other provision. From and after such demonstration, such Indebtedness shall be deemed to have been incurred under the provision with respect to which such compliance has been demonstrated until any subsequent reclassification of such Indebtedness. The Corporation shall, prior to the incurrence of any Indebtedness by the Corporation, deliver to the Trustee an Officer’s Certificate which identifies the Indebtedness incurred, identifies the subsection of this Section pursuant to which such Indebtedness is to be incurred, demonstrates compliance with the proceeds thereof was provisions of such subsection and the other requirements of this Article and attaches a copy of the instrument evidencing such Indebtedness; provided, that (1) the requirement for an Officer’s Certificate prior to incurrence of Indebtedness shall not apply to amounts of Indebtedness incurred in fact retired any fiscal year not exceeding $1,000,000 for Purchase Money Indebtedness, so long as such Indebtedness is reported on such date the audited financial statements of issuance);
the Corporation furnished to the Trustee pursuant to Section 5.10 hereof and (g2) the incurring of Short-Term Indebtedness under a line of credit or other similar arrangement shall only be required to be certified to the Trustee at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance arrangement is entered into by the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated IndebtednessCorporation.
Appears in 1 contract
Sources: Loan Agreement
Subordinated Indebtedness. The Borrower may after Unless consented to by the date hereof incur additional Subordinated Indebtedness subject to the following conditions (each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative Agent):Required Lenders:
(a) prepay, redeem, purchase, repurchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of any subordination terms of, any Subordinated Indebtedness, in each case including pursuant to any change of control, sale of assets, issuance of any equity or otherwise as may be set forth in the terms therefor or available to the Borrower at its option; or
(b) amend, modify or change the terms of any Subordinated Indebtedness (or the Subordinated Indenture or any other material agreement or document entered into in connection therewith) if the effect of such amendment is to (i) increase the interest rate on such Subordinated Indebtedness, (ii) change the dates upon which payments of principal or interest are due on such Subordinated Indebtedness shall be subordinated other than to extend such dates, (iii) change any default or event of default other than to delete or make less restrictive any default provision therein, or add any covenant with respect to such Subordinated Indebtedness, (iv) change the redemption or prepayment provisions of such Subordinated Indebtedness other than to extend the dates therefor or to reduce the premiums payable in connection therewith or (v) change or amend any other term if such change or amendment would materially increase the obligations of the Borrower obligor or confer additional material rights to pay principal the holder of and interest on such Subordinated Indebtedness in a manner adverse to the LoansBorrower, any of its Subsidiaries, the reimbursement obligation Agents or any Lender; provided that in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable any fiscal year, the Borrower may prepay, redeem, purchase, repurchase, defease or otherwise satisfy prior to the Lenders than scheduled maturity thereof (each such event a "BOND REPURCHASE") a principal amount of Subordinated Indebtedness so long as both immediately before and after the terms and conditions making of the Senior Subordinated Note Indentures;
(b) any such Indebtedness shall be an obligation of the Borrower onlyBond Repurchase, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereofpro forma for each such Bond Repurchase, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv)the Available Repurchase Amount for such fiscal year is not less than $0, (ii) repay the Total Leverage Ratio for the most recently ended fiscal quarter is less than or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or equal to 3.00 to 1.00, (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion excess of the principal thereof prior to Aggregate Revolving Credit Commitments over the date six months after aggregate Outstanding Amount of all Revolving Loans, Swing Line Loans, Foreign Currency Loans and L/C Obligations shall equal or exceed the final maturity Dollar Equivalent of the Loans hereunder;
$40,000,000, (eiv) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
and (hv) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified all 119 representations and warranties contained in Article V (Representations and Warranties) and in the foregoing clauses (a), (b), (e), (f) other Loan Documents shall be true and (g) (and setting forth correct in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated Indebtednessall material respects.
Appears in 1 contract
Sources: Credit Agreement (Jarden Corp)
Subordinated Indebtedness. The Borrower may after Enter into or agree to any amendment, modification or waiver of any term or condition of the Subordinated Indenture, the Subordinated Indenture Notes, the Subordinated Indenture Subsidiary Guaranty, the Exchange Subordinated Indenture, the Exchange Subordinated Indenture Notes or the Exchange Subordinated Indenture Subsidiary Guaranty, or purchase, redeem or make any payment with respect to Indebtedness under the Subordinated Indenture Notes, the Subordinated Indenture Subsidiary Guaranty, the Exchange Subordinated Indenture Notes or the Exchange Subordinated Indenture Subsidiary Guaranty, or permit any of its Restricted Subsidiaries so to do, except for required payments to the extent expressly permitted pursuant to the subordination terms set forth therein, and except as permitted under section 8.1(viii).
16. This Amendment shall become effective as of the date hereof incur additional Subordinated Indebtedness subject upon receipt by the Agent of this Amendment executed by a duly authorized officer or officers of the Borrower, the Agent and the Required Lenders.
17. In all other respects the Agreement and the .. Documents shall remain in full force and effect.
18. In order to induce the following conditions (each of which shall have been fulfilled in form Agent to execute this Amendment and substance reasonably satisfactory the Co-Agent and the Lenders to consent thereto, the Administrative Agent):
Borrower hereby (a) such Indebtedness shall be subordinated to certifies that all representations and warranties contained in the obligations Agreement are true and correct in all respects as of the Borrower to pay principal of and interest on the Loansdate hereof, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower onlycertifies that, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, immediately before and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect theretothis Amendment, no Default or Event of Default shall have occurred exists under the Agreement, and be continuing hereunder; and
(hc) prior agrees to such issuance pay the Borrower shall deliver reasonable fees and disbursements of counsel to the Administrative Agent a certificate incurred in connection with the preparation, negotiation and closing of a Financial Officer to the effect specified in the foregoing clauses this Amendment.
19. The Borrower hereby (a)) reaffirms and admits the validity, enforceability and continuation of all the Loan Documents to which it is a party, and its obligations thereunder, and (b), (e), (f) agrees and (g) (and setting forth in reasonable detail the computations necessary admits that it has no valid defenses to determine compliance with said clause (f)). Neither the Borrower nor or offsets against any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund forobligations to the Agent, the purchaseCo-Agents or the Lenders under the Loan Documents to which it is a party.
20. This Amendment may be executed in any number of counterparts, redemptioneach of which shall be an original and all of which shall constitute one agreement. It shall not be necessary in making proof of this Amendment to produce or account for more than one counterpart signed by the party to be charged.
21. This Amendment is being delivered in and is intended to be performed in the State of New York and shall be construed and enforceable in accordance with, retirement or other acquisition ofand be governed by, or make any voluntary payment or prepayment the internal laws of the principal State of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect New York without regard to the principal principles of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result conflict of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated Indebtednesslaws.
Appears in 1 contract
Sources: Credit Agreement (American Radio Systems Corp /Ma/)
Subordinated Indebtedness. The Borrower may after 2.1.1 Except as set forth in Section 2.1.2, Subordinated Creditor hereby subordinates and postpones the date hereof incur additional payment and the time of payment of all of the Subordinated Indebtedness subject to the following conditions (each of which shall have been fulfilled and in form and substance reasonably satisfactory to the Administrative Agent):
(a) such Indebtedness shall be subordinated to the obligations favor of the Borrower to pay principal indefeasible and full payment in cash and the time of and interest on the Loans, the reimbursement obligation in respect payment of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Indebtedness. Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, Creditor and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated Borrowers represent and warrant to the obligations of such Subsidiary to pay principal of Lender that all existing Subordinated Indebtedness is described in EXHIBIT A attached hereto and interest on the Loans, the reimbursement obligations and made a part hereof.
2.1.2 Until all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Indebtedness has been fully and indefeasibly paid in cash and there is no agreement between Borrowers and the Lender under which the Lender is required to or may make loans or provide other financial accommodations, Subordinated Note Indentures;
Creditor shall not, without the prior written consent of the Lender, ask, demand, accelerate (c) unless the Net Available Proceeds Lender has accelerated the Senior Indebtedness), declare a default under, ▇▇▇ for, set off, accept or receive any payment of such Indebtedness shall be applied to all or any part of the Subordinated Indebtedness; provided, however, that unless (i) prepay Loans there is an Event of Default under any of the Credit Documents (as defined in accordance with Section 2.10(b)(ivthe Credit Agreement), (ii) repay any Borrower or prepay its assets is the subject of Insolvency Proceedings, or (iii) such payment would reduce the Borrowers' Subordinated Indebtedness (to Subordinated Creditor to an amount less than $1,500,000, Subordinated Creditor may receive and retain payments made by Borrowers pursuant to the Subordinated Notes; and provided further than upon an "Event of Default" as defined in accordance the Intervale Mortgage, Subordinated Creditor may exercise or otherwise enforce its rights with this Section 7.11) respect to the Intervale Property and the EPI Property under the Intervale Mortgage and any mortgage related to the EPI Property and may receive and retain any proceeds from the sale, distribution or Senior Unsecured Indebtedness (other application of the Intervale Property or the EPI Property in accordance with Section 7.12) 3.3 hereof.
2.1.3 Subordinated Creditor and Borrowers agree and warrant that any instrument, agreement, security or (iii) finance one other writing now or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of hereafter evidencing all or any portion of the principal thereof prior Subordinated Indebtedness shall bear on its face a clear and conspicuous legend that it is subject to the date six months after the final maturity terms of the Loans hereunder;
(e) terms this Agreement. Until all Senior Indebtedness has been indefeasibly paid in respect of financial and other covenantsfull in cash, events of default and mandatory prepayments applicable to such Indebtedness Borrowers shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrowernot issue any instrument, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance security or other analogous fund forwriting (other than those, the purchaseif any, redemption, retirement or other acquisition of, or make described in EXHIBIT A) evidencing any voluntary payment or prepayment part of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as or amend or modify in effect on any respect any such instrument, security or other writing without the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result prior written consent of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated IndebtednessLender.
Appears in 1 contract
Subordinated Indebtedness. The Borrower may after Senior Creditor consents to the date hereof incur additional existence of the Subordinated Indebtedness. The Subordinated Creditor hereby subordinates and postpones the payment of, and the time of payment of, and the right to bring any action to collect all or any portion of the Subordinated Indebtedness subject to and in favor of the payment of all of the Senior Indebtedness to the following conditions (each of which shall have been fulfilled extent and in form and substance reasonably satisfactory to the Administrative Agent):manner set forth herein. The parties hereby agree that:
(a) such Indebtedness Provided that no Blockage Period shall then be subordinated in effect, Borrower may make and Subordinated Creditor may accept regularly scheduled, non accelerated quarterly payments of non default interest (with the understanding that interest pursuant to the obligations of the Borrower to pay principal of and interest Section 2.3(d) does not constitute default interest) on the Loans, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (including interest payments with respect to the Deferred Interest Notes, as such term is defined in accordance with this Section 7.11the Subordinated Credit Agreement) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions which accrue after September 30, 1998, as well as non-accelerated regularly scheduled payment of principal pursuant to Section 7.05(b);
(d) the terms of such Indebtedness the Subordinated Credit Agreement or the Subordinated Note and Deferred Interest Notes. Subordinated Creditor shall not provide for accept any other payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Subordinated Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance unless Subordinated Creditor has complied with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), subsections (b), (e), ) or (f) of this Section 2.1 and such payment is not otherwise prohibited by the terms of this Agreement.
(gb) (During any Blockage Period, unless and setting forth in reasonable detail until all of the computations necessary Senior Indebtedness has been fully paid and any commitment pursuant to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for valueSenior Credit Agreement is terminated, or set apart any money for each Blockage Default shall have been remedied or waived or shall have ceased to exist (as evidenced by a sinking, defeasance or other analogous fund for, Notice from the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of Senior Creditor to the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction Creditor to that has a substantially similar effect), the Subordinated Creditor shall not, without the prior written consent of the Senior Creditor, ask, demand, accelerate, ▇▇▇ for, set off, accept or receive any direct or indirect payment (in cash, property or security) of all or any part of the Subordinated Indebtedness. Upon termination of any Blockage Period, the Borrower may pay and the Subordinated Creditor may receive any payments on account of the Subordinated Indebtedness which are otherwise due and payable (including any payments accruing before or during such Blockage Period). Nothing set forth herein shall restrict the Subordinated Creditor from declaring a default under the Subordinated Indebtedness but the Subordinated Creditor shall not take any action to demand for or accelerate the Subordinated Indebtedness prior to giving any notice required pursuant to subsection (e) below provided that, subject to Section 3.1 below, nothing shall prohibit the Subordinated Creditor from accelerating or taking any other action upon the occurrence of an Insolvency Proceeding.
(c) The Subordinated Creditor represents and warrants to the Senior Creditor that it is the lawful owner of the Subordinated Indebtedness and no part thereof has been assigned to or subordinated or subjected to any other security interest in favor of anyone other than the Senior Creditor.
(d) The Subordinated Creditor and the Borrower agree and warrant that any instrument, agreement, security or other writing now or hereafter evidencing all or any portion of the Subordinated Indebtedness shall bear on its face a clear and conspicuous legend that it is subject to the terms of this Agreement. Until all Senior Indebtedness has been paid in full, the Borrower shall not issue any instrument, security or other writing evidencing any part of the Subordinated Debt (other than the Subordinated Note and the Subordinated Credit Agreement and the Deferred Interest Notes) or amend or modify in any respect any such instrument, security or other writing except that at the request of and in the manner requested by the Senior Creditor if the effect thereof is to (i) increase the Borrower may make payments on amount of indebtedness or interest rate thereunder or (ii) accelerate the regularlyschedule of repayment (including without limitation, the addition of any required prepayments of the Subordinated Debt).
(e) The Subordinated Creditor hereby agrees that, upon the occurrence of an event of default pursuant to the Subordinated Credit Agreement (other than an event of default arising out of the bankruptcy of the Borrower), it will not, without the consent of the Senior Creditor, take any action to accelerate, demand, set-scheduled off or accept any payment dates (other than a payment of past due interest which cures such default) with respect to the principal Subordinated Indebtedness until ten (10) days after notice of such action has been received by the Senior Creditor (which notice may be sent during a Blockage Period to expire upon the later of (i) ten (10) days after the sending of such notice and interest on (ii) the termination of such Blockage Period). Such notice may not be sent in the event of a default under the Subordinated Indebtedness which is caused solely by a non payment default under the Senior Indebtedness, which non payment default has not resulted in an acceleration of the Senior Indebtedness.
(f) In addition to the restrictions set forth above, the Subordinated Creditor shall not, without the prior written consent of the Senior Creditor, accept any voluntary prepayment of the Subordinated Indebtedness except in connection with a public offering by the Company as described in section 2.4(b) of the Subordinated Credit Agreement as in effect on the date hereof hereof. The Senior Creditor hereby acknowledges and agrees that nothing set forth in this Agreement or the Senior Credit Agreement or any document executed in connection therewith shall be deemed to limit or abridge the rights of the Subordinated Creditor to exercise its conversion rights pursuant to the Subordinated Credit Agreement and to exercise all rights granted to it thereunder and under any document executed in connection therewith as an equity holder including, without limitation, all rights to convert, require public offerings, receive payments thereof and receive payment of the Make Whole Premium (oras defined in Section 9.3 of the Subordinated Credit Agreement) pursuant to Article IX of the Subordinated Credit Agreement, all rights to receive dividends pursuant to Section 9.10 of the Subordinated Credit Agreement (the "Special Dividends") provided that the dividends paid by the Company which triggered payment of the Special Dividends were permitted by the Senior Credit Agreement and all rights to indemnification under Section 7(a) of the Registration Rights Agreement. The Senior Creditor further agrees that it shall not amend any existing agreement or enter into any new agreement with the Borrower which would (x) restrict the adoption of the Charter Amendment (as to any such term is defined in the Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such paymentCredit Agreement), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, or (y) prohibit the Borrower may redeem from complying with any exercise of the Subordinated Creditor's rights pursuant to Article 9 of the Subordinated Credit Agreement or prepay such Subordinated Indebtednessthe Registration Rights Agreement.
Appears in 1 contract
Sources: Subordination Agreement (Consolidated Stainless Inc)
Subordinated Indebtedness. The Borrower may after the date hereof incur (a) Issue additional Subordinated Indebtedness subject to Indebtedness, unless the following conditions (are satisfied in connection with each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative Agent):such issuance:
(a) such Indebtedness shall be subordinated to the obligations of the Borrower to pay principal of and interest on the Loans, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing continuing;
(ii) the maturity date of any issuance of the Subordinated Indebtedness must extend at least one hundred seventy-nine (179) days beyond the Maturity Date of this Agreement;
(iii) the provisions pursuant to which such Subordinated Indebtedness are subordinate to the Obligations shall be substantially the same as those contained in Borrower’s Subordinated Indebtedness outstanding on the date hereof or otherwise acceptable to Administrative Agent in the exercise of its reasonable discretion, and shall include, without limitation, standstill and payment blockage requirements on the holders of such Subordinated Indebtedness for a period of at least one hundred seventy-nine (179) days following a Default or Event of Default hereunder;
(iv) the covenants contained in any indenture or other agreement relating to such Subordinated Indebtedness must be less restrictive than the covenants contained in this Agreement;
(v) such Subordinated Indebtedness must be unsecured; and
(hvi) prior to the outstanding principal amount of any such issuance Subordinated Indebtedness having a maturity date of less than one year from the Borrower shall deliver to date of the Administrative Agent a certificate of a Financial Officer to determination must be covered by the effect specified Borrowing Base as indicated in the foregoing clauses (a), definition of “Borrowing Base Availability” in Section 1.01 above.
(b)) Without the prior written consent of the Required Lenders:
(i) repay, (e)prepay, (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire redeem or otherwise acquire for valueany Subordinated Indebtedness, provided, however, that nothing contained in this Section 7.07 shall prevent any member of the Consolidated Group from (A) making regularly scheduled payments of principal and interest on any Subordinated Indebtedness if no Default or Event of Default exists and the payments would not cause a Default or Event of Default to occur, or set apart (B) prepaying or repurchasing any money Subordinated Indebtedness if no Default or Event of Default exists and the payments would not cause a Default or Event of Default to occur; or
(ii) other than in connection with the action permitted in clause (i) above, permit the modification, waiver or amendment of any of the terms of any Subordinated Indebtedness, except for a sinkingmodifications, defeasance waivers or amendments that do not (x) increase the interest rate, fees or other analogous fund forcharges provided for therein or change the maturity date or any other scheduled date for repayment of principal of such Subordinated Indebtedness, (y) change the purchasesubordination provisions of such Subordinated Indebtedness or (z) impose upon any member of the Consolidated Group any obligation or limitation that, redemptionin the reasonable judgment of Administrative Agent, retirement is, in any material respect, more burdensome or restrictive than those currently provided for in this Agreement; or
(iii) other acquisition than in connection with the action permitted in clause (i) above, permit (whether or not within the control of a member of the Consolidated Group) the modification, waiver, or amendment of, or make release of any voluntary payment parties to, any subordination agreement or prepayment subordination provisions contained in any indenture with respect to any Subordinated Indebtedness.
(c) Notwithstanding anything to the contrary contained herein, during the Modification Period, Borrower shall not, nor shall it permit any member of the principal of Consolidated Group to, directly or interest onindirectly repay, prepay, purchase, redeem or any other amount owing in respect of, otherwise acquire any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effectother than Permitted Subordinated Debt Payments), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated Indebtedness.
Appears in 1 contract
Subordinated Indebtedness. The Borrower may after Without limiting the date hereof incur additional Subordinated Indebtedness subject to the following conditions (each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative Agent):
(a) such Indebtedness shall be subordinated to the obligations of the Borrower to pay principal of and interest on the Loans, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none Company to obtain the approval of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated the Majority Lenders to the obligations terms of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable Permitted Subordinated Indebtedness to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;extent required by Section 8.13 hereof, upon any Debt Issuance:
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) the Company shall prepay the Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant and the Commitments shall be subject to Section 7.05(b);
(d) automatic reduction on the terms date of such Indebtedness shall not provide for payment of any portion of the principal thereof prior issuance in an amount equal to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial Unused Proceeds thereof, such prepayment and other covenants, events of default and mandatory prepayments applicable reduction to such Indebtedness shall be terms that are at the time customary effected in the market for subordinated debt being incurred by the Borrower, manner and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be extent specified in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
paragraph (g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunderthis Section 2.09; and
(hii) prior the Company shall deposit the Reserved Proceeds thereof into a Reserved Proceeds Account to be held therein pending application of such issuance the Borrower shall deliver Reserved Proceeds to the Administrative Agent a certificate of a Financial Officer make one or more Subsequent Acquisitions, to the effect specified refinance outstanding Subordinated Indebtedness or to make payments in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment respect of the principal UVC Notes as contemplated by the last sentence of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of Section 8.09 hereof (and the relevant Reserved Proceeds Account Agent need not release such Reserved Proceeds except upon presentation of evidence satisfactory to it that such Reserved Proceeds are to be so applied in compliance with the provisions of this SectionAgreement), provided that if such Reserved Proceeds are not in fact so applied within 180 days of such Debt Issuance, such Reserved Proceeds shall forthwith be applied to the Borrower may redeem prepayment of Loans and reductions of Commitments as provided above (it being understood that, in the event Reserved Proceeds from more than one Debt Issuance are paid into a Reserved Proceeds Account, such Reserved Proceeds shall be deemed to be released in the same order in which such Debt Issuances occurred). Nothing in this paragraph (e) shall be deemed to obligate the Administrative Agent or prepay the Majority Lenders to release, or to agree to release, from a Reserved Proceeds Account of any of such Subordinated Indebtednessproceeds to or for the benefit of the Company for purposes as aforesaid upon the occurrence and during the continuance of any Event of Default."
(3) Section 2.09 of the Credit Agreement is hereby further amended by redesignating paragraph (f) thereof as paragraph (g)
Appears in 1 contract
Subordinated Indebtedness. The Borrower may after the date hereof incur additional Subordinated Indebtedness subject to the following conditions (each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative AgentRequired Lenders):
(a) such Indebtedness shall be subordinated to the obligations of the Borrower to pay principal of and interest on the Loans, the reimbursement obligation in respect of each LC Disbursement Reimbursement Obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations Reimbursement Obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) to the Net Available Proceeds extent required pursuant to Section 2.11(b)(v), proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with the manner provided in Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b2.11(b)(v);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrowerborrowers, and in transactions, comparable to the Borrower’s Borrower and proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 7.08 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer to such effect setting forth in reasonable detail the computations necessary to determine such compliance; and
(g) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance hereunder and the Borrower shall deliver have delivered to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f))such effect. Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect)Indebtedness, except that the Borrower may (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and ), (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, redeem Subordinated Indebtedness that is being refinanced with such proceeds and (iii) the Borrower may redeem or prepay such Subordinated Indebtedness, so long as (x) at the time thereof and after giving effect thereto no Default shall have occurred and be continuing and (y) the aggregate amount of all such prepayments, together with the aggregate amount of Restricted Payments made pursuant to section 7.05(b), shall not exceed $100,000,000. Neither the Borrower nor any of its Subsidiaries will consent to any modification, supplement or waiver of any of the provisions of any Subordinated Indebtedness without the prior consent of the Administrative Agent (with the approval of the Required Lenders).
Appears in 1 contract
Sources: Credit Agreement (Canandaigua LTD)
Subordinated Indebtedness. The Borrower may after the date hereof incur additional Subordinated Indebtedness subject to the following conditions (each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative Agent):
(a) such Indebtedness shall be subordinated to the obligations of the Borrower to pay principal of and interest on the Loans, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
Save Section 2.07 (b) such Indebtedness shall be an obligation each Guarantor hereby subordinates the payment and the time of the Borrower onlypayment of all indebtedness, liabilities and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the other obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and of each other Obligor, to such Guarantor of every kind and nature whatsoever whether now in transactions, comparable existence or hereafter entered into or created (the “Subordinated Indebtedness”) to the Borrower’s proposed debt issuance;
(f) at payment of all of the time Obligations. Until all of issuance the Obligations have been paid in full, the Guarantors shall not receive any payment or distribution on account of, or accept any collateral or security for, or bring any action to collect, any Subordinated Indebtedness. The Guarantors shall not assign, transfer, exchange, convert, pledge, forgive, or dispose of, the Subordinated Indebtedness while this Guaranty is in effect, other than the assignment, pledge and security interest created under this Guaranty in favor of such the Beneficiary. In the event that any Guarantor is entitled to receive any payment or distribution in respect of Subordinated Indebtedness, whether voluntary or involuntary, and after giving effect theretowhether or not under any bankruptcy, insolvency or similar proceedings under any law, then such Guarantor agrees and directs that any such payment or distribution shall be paid or delivered directly to the Beneficiary, and when received by the Beneficiary, and in the Beneficiary’s discretion, either held by the Beneficiary as Collateral for the Obligations or applied to the Obligations, whether due or not and in such order and manner as the Beneficiary may elect. If any such payment or distribution in respect of Subordinated Indebtedness is received by any Guarantor, such Guarantor shall deliver the same to the Beneficiary (with any necessary indorsement), and until so delivered to the Beneficiary, the Borrower same shall be held in compliance with Section 7.10 (the determination of trust by such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning Guarantor as property of the respective period Beneficiary. Each Guarantor hereby irrevocably authorizes and that empowers the Beneficiary to demand, sue for, collect and receive every payment or distribution on account of the Subordinated Indebtedness and to file claims and take such other proceedings in the name of the Beneficiary or in the name of any other Indebtedness Guarantor as the Beneficiary may deem necessary or advisable to be retired with carry out the proceeds thereof was in fact retired on such date provisions of issuance);
(g) at this Guaranty. As further assurance of the time of such issuanceauthorization herein given, each Guarantor agrees to execute and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate Beneficiary any power of a Financial Officer to the effect specified in the foregoing clauses (a)attorney, (b)assignment, (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for valueindorsement, or set apart other instrument as may be requested by the Beneficiary to enable the Beneficiary to enforce any money for a sinking, defeasance or other analogous fund for, claims upon the purchase, redemption, retirement or other acquisition of, or make Subordinated Indebtedness and to collect and receive any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates distribution with respect to the principal Subordinated Indebtedness. To secure each Guarantor’s obligations under this Guaranty, each Guarantor assigns, pledges and grants to the Beneficiary a security interest in, and lien on, the Subordinated Indebtedness, all proceeds thereof and all and any security and collateral therefor. Upon the request of the Beneficiary, each Guarantor shall indorse, assign and interest on deliver to the Beneficiary all notes, certificates, bonds, debentures, instruments, guaranties and agreements evidencing, securing, guaranteeing, or made in connection with, the Subordinated Indebtedness, and any collateral therefor in the Guarantor’s possession or control. If the Beneficiary has possession of an instrument or chattel paper that evidences or constitutes Subordinated Indebtedness, then as to any such instrument or chattel paper, the Beneficiary shall not be obligated to take any necessary steps to preserve rights against prior parties. The Beneficiary shall have the rights and remedies of a secured party under the Uniform Commercial Code in effect in the Governing Jurisdiction with respect to the Subordinated Indebtedness as in effect on the date hereof (or, as to and all proceeds thereof and any Subordinated Indebtedness issued after the date hereof, as originally in effect) security and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated Indebtednesscollateral therefor.
Appears in 1 contract
Sources: Guaranty Agreement (Sono Group N.V.)
Subordinated Indebtedness. (A) The Borrower may after the date hereof incur additional shall not make any payment or prepayment on or with respect to, or any redemption or repurchase of, any Subordinated Indebtedness subject to while this Agreement remains in effect, whether of principal, interest or otherwise, except that (1) the following conditions (each of which shall have been fulfilled in form and substance reasonably satisfactory to the Administrative Agent):
(a) such Indebtedness Borrower shall be subordinated permitted to the obligations make regularly scheduled payments of the Borrower to pay principal of and interest on the Loans, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions Subordinated Debentures provided that (a) no less favorable such payment shall be made prior to the Lenders than the terms due date for such payment, and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation there does not exist any Default or Event of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) Default at the time of such issuancepayment, and after giving effect thereto(c) if such payment were to have been made on the last day of the fiscal quarter ended immediately prior to such payment date, the Borrower would have remained in compliance with Sections 6.25 through 6.29; and (2) the Borrower may prepay, redeem or repurchase (for purposes hereof, a "redemption") Subordinated Indebtedness if (a) such redemption is lawful in all respects, (b) no Default or Event of Default shall have has occurred and be continuing hereunder; and
is continuing, (hc) prior to the payment of the redemption price for each such redemption, the Borrower's Financial Statements or Interim Financial Statements, Borrowing Base Certificate, Compliance Certificate and other supporting certifications for the immediately preceding fiscal quarter shall indicate that no Default or Event of Default exists or would have existed after giving effect to such payment, (d) at the time of each such redemption there shall be no Loans outstanding and such redemption shall not result in an Advance or the issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b)Letter of Credit, (e)) such Subordinated Indebtedness shall be redeemed at par or at a discount from par but not at a premium, and (f) and the consideration of all such redemptions shall not exceed $2,000,000.00 in the aggregate.
(gB) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the The Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or not enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal amendment or modification of and interest on the Subordinated Indebtedness as in effect on Debentures or the date hereof (or, as indenture pursuant to any which the Subordinated Indebtedness Debentures were issued after without the date hereof, as originally in effect) and (ii) so long as no Default Agent's prior written consent which consent shall have occurred and not be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated Indebtednessunreasonably withheld.
Appears in 1 contract
Sources: Loan Agreement (Edo Corp)
Subordinated Indebtedness. The Borrower may will not, and will not permit any Subsidiary to, make any amendment or modification to the indenture, note or other agreement evidencing or governing any Subordinated Indebtedness which is adverse to the interests of the Lenders, or directly or indirectly voluntarily prepay, defease or in substance defease, purchase, redeem, retire or otherwise acquire, any Subordinated Indebtedness, other than after the date hereof incur additional issuance of Permitted Subordinated Indebtedness, the exchange of notes evidencing such Indebtedness for notes that have terms substantially identical in all material respects to such original notes, except that such new notes do not contain terms with respect to transfer restrictions. No Permitted Subordinated Indebtedness subject shall bear interest required to the following conditions (each be paid in cash at a rate in excess of which 12% per annum. The Borrower shall have been fulfilled in form and substance reasonably satisfactory exercise any option that permits it to the Administrative Agent):
(a) such Indebtedness shall be subordinated to the obligations of the Borrower to pay principal of and capitalize interest on the Loans, the reimbursement obligation in respect of each LC Disbursement and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless subordinated to the obligations of such Subsidiary to pay principal of and interest on the Loans, the reimbursement obligations and all other amounts payable hereunder on terms and conditions no less favorable to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section 7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) excess of 12% per annum. The Borrower shall give the Agent five Business Days' prior written notice of the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior amendment or modification to the date six months after indenture, note or other agreement evidencing or governing any Subordinated Indebtedness. Notwithstanding the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenantsforegoing, events of default and mandatory prepayments applicable to such Indebtedness shall be terms that are at the time customary in the market for subordinated debt being incurred by the Borrower, and in transactions, comparable to the Borrower’s proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued, at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, so long as no Default or Event of Unmatured Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b), (e), (f) and (g) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (f)). Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for valuewould result, or set apart any money for a sinkingwould be reasonably likely to result, defeasance or other analogous fund for, the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect), except that (i) the Borrower may make payments on the regularly-scheduled payment dates with respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance with the first paragraph of this Sectiontherefrom, the Borrower may redeem or prepay such repurchase the Existing Subordinated Indebtedness, provided that such repurchased Existing Subordinated Indebtedness shall be cancelled and not reissued.
Appears in 1 contract