1Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, other than: (a) the Obligations; (b) Indebtedness of the Borrower to any other Credit Party; (c) Guarantees with respect to Indebtedness permitted under this Section 8.1; (d) Indebtedness existing on the Closing Date and described in Schedule 8.1, together with any Permitted Refinancing thereof; (e) Indebtedness with respect to (x) Capital Leases and (y) purchase money Indebtedness; provided, in the case of clause (x), that any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (e) plus assumed Indebtedness under clause (k) below shall not exceed at any time $15,000,000; (f) Indebtedness in respect of any Swap Agreement that is entered into in the ordinary course of business to hedge or mitigate risks to which any Credit Party or any of its Subsidiaries is exposed in the conduct of its business or the management of its liabilities (it being acknowledged by the Borrower that a Swap Agreement entered into for speculative purposes or of a speculative nature is not a Swap Agreement entered into in the ordinary course of business to hedge or mitigate risks); (g) Indebtedness arising in connection with the financing of insurance premiums in the ordinary course of business; (h) to the extent constituting Indebtedness, all obligations in connection with each Permitted Acquisition, including, without limitation, Earn Out Obligations; (i) Indebtedness representing deferred compensation to officers, directors, employees of the Borrower and its Subsidiaries; (j) unsecured Indebtedness of the Credit Parties in an aggregate amount not to exceed at any time $15,000,000; and (k) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of a Credit Party in a transaction permitted hereunder; provided that any such Indebtedness was not created in anticipation of or in connection with the transaction or series of transactions pursuant to which such Person became a Subsidiary of a Credit Party; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (k) plus Indebtedness under clause (e) above shall not exceed at any time $15,000,000.
Appears in 1 contract
1Indebtedness. No Credit Note Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, other than: except:
(a) the Obligations;.
(b) Indebtedness of the Borrower any Guarantor Subsidiary or Company to any other Credit PartyGuarantor Subsidiary, or of Company to any Guarantor Subsidiary; provided, (i) all such Indebtedness shall be evidenced by the Intercompany Note, and shall be subject to a First Priority Lien pursuant to the Pledge and Security Agreement, (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to the Payment in Full of all Obligations pursuant to the terms of the Intercompany Note and (iii) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Guarantor Subsidiary to Company or to any of its Subsidiaries for whose benefit such payment is made;
(c) Guarantees with respect Indebtedness up to $15,000,000 incurred by Company, provided, that such Indebtedness permitted (i) is structured as an asset-based revolver facility (“ABL Facility”) on terms and conditions acceptable to Company and Requisite Purchasers (including that the terms of the ABL Facility must be no more favorable to the lenders under the ABL Facility than the terms of this Section 8.1Agreement are to the Purchasers); (ii) the net Cash proceeds shall be sufficient to, and shall be applied to, repay in full the New Money Notes, and the New Money Purchase Commitments shall be terminated, in each case on the closing date of the ABL Facility, (iii) is secured only by (x) priming Liens on raw materials, WIP, finished goods, inventory, receivables, and any proceeds of any of the foregoing (the “ABL Priority Collateral”), which Liens shall be senior to the Liens on the ABL Priority Collateral securing the Obligations, and (y) junior Liens on all other Collateral and (iv) shall be subject to an intercreditor agreement on terms reasonably acceptable to the Requisite Purchasers;
(d) Indebtedness existing on incurred by Holdings or any of its Subsidiaries arising from agreements providing for customary indemnification or from customary guaranties or letters of credit, surety bonds or performance bonds securing the Closing Date and described performance of Holdings or any such Subsidiary pursuant to such agreements in Schedule 8.1connection with Permitted Acquisitions or permitted dispositions of any business, together with assets or Subsidiary of Holdings or any Permitted Refinancing thereofof its Subsidiaries;
(e) Indebtedness with respect that may be deemed to (x) Capital Leases and (y) purchase money Indebtedness; providedexist pursuant to any performance, surety, appeal or similar bonds or statutory obligations incurred in the case ordinary course of clause (x)business, that and guarantee obligations in respect of any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (e) plus assumed Indebtedness under clause (k) below shall not exceed at any time $15,000,000;
(f) Indebtedness in respect of any Swap Agreement that is entered into treasury, depositary, cash management and netting services, automatic clearinghouse arrangements, overdraft protections, employee credit card programs and similar arrangements or otherwise arising in connection with securities accounts and deposit accounts, in each case, in the ordinary course of business;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of Company and its Subsidiaries;
(h) guaranties by Holdings or Company of Indebtedness of Company or a Guarantor Subsidiary or guaranties by a Subsidiary of Company of Indebtedness of Company or a Guarantor Subsidiary with respect, in each case, to hedge Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness that is being guaranteed is unsecured and/or subordinate to the Obligations (in payment or mitigate risks Lien priority), then such guaranties shall also be unsecured and/or subordinated to which the Obligations to the same extent as such guaranteed Indebtedness;
(i) Indebtedness described in Schedule 6.1, but not any Credit Party extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement, and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Purchasers than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, except by an amount equal to unpaid accrued interest and premium thereon, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(j) Indebtedness of Holdings or any of its Subsidiaries is exposed in an aggregate amount (taken together with the conduct amount of any other Indebtedness secured by Liens pursuant to Section 6.2(p)) not to exceed at any time outstanding an aggregate principal amount equal to $500,000.
(k) Obligations of Company or any of its business or the management of its liabilities (it being acknowledged by the Borrower that a Swap Agreement entered into Subsidiaries under Hedge Agreements which are not for speculative purposes or of a speculative nature is not a Swap Agreement entered into in the ordinary course of business to hedge or mitigate risks)purposes;
(gl) Indebtedness arising in connection with consisting of the financing of insurance premiums in the ordinary course of business;
(hm) to bankers' acceptances, bank guarantees, letters of credit, warehouse receipt or similar facilities, in each case incurred or issued, as applicable, in the extent constituting Indebtedness, all obligations in connection with each Permitted Acquisition, including, without limitation, Earn Out Obligationsordinary course of business;
(in) Indebtedness representing deferred compensation owed to officers(including obligations in respect of letters of credit for the benefit of) any Person providing worker's compensation, directorshealth, employees of the Borrower disability or other employee benefits or property, casualty or liability insurance to Holdings, Company and its Subsidiaries;
, pursuant to reimbursement or indemnification obligations to such Person (j) unsecured Indebtedness of the Credit Parties in an aggregate amount o)Indebtedness not to exceed at any time $15,000,0007,500,000 secured by Xxxxx permitted by Section 6.2(o); and
(k) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of a Credit Party in a transaction permitted hereunder; provided that any such Indebtedness was not created in anticipation of or in connection with the transaction or series of transactions pursuant to which such Person became a Subsidiary of a Credit Party; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (k) plus Indebtedness under clause (e) above shall not exceed at any time $15,000,000.
Appears in 1 contract
Samples: Note Purchase Agreement (Capstone Green Energy Holdings, Inc.)
1Indebtedness. No Credit Loan Party shall, nor shall it any Loan Party permit any of its Subsidiaries to, directly or indirectly, at any time create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness, other thanexcept:
(a) Indebtedness under this Agreement and the Obligations;other Loan Documents;
(b) Indebtedness of the Borrower (i) a Loan Party or a Subsidiary of a Loan Party to any other Credit Party;another Loan Party and (ii) a non-Loan Party Subsidiary to another non-Loan Party Subsidiary;
(c) Guarantees with respect to Indebtedness permitted (contingent or otherwise) of any Loan Party or a Subsidiary of a Loan Party arising under this Section 8.1;any Interest Rate Hedge; provided, that (i) no Loan Party or a Subsidiary of a Loan Party shall enter into or incur a Swap Obligation if at the time it enters into or incurs such Swap Obligation it does not constitute an “eligible contract participant” as defined in the Commodity Exchange Act, and (ii) the Loan Parties and their Subsidiaries shall enter into Interest Rate Xxxxxx primarily for hedging (rather than speculative) purposes;
(d) Guaranties by the Loan Parties and their Subsidiaries of Indebtedness existing on the Closing Date and described in Schedule 8.1, together with any Permitted Refinancing thereofpermitted hereunder (other than Excluded Swap Obligations);
(e) Indebtedness Obligations (contingent or otherwise) of any Loan Party arising under any Hedge Agreements with respect to (x) Capital Leases and (y) purchase money Indebtedness; providedinterest rates, in the case of clause (x)commodities, that any such Indebtedness shall foreign exchange, foreign shipping, freight or other transportation, or other transactions expected to be secured only by the asset subject made pursuant to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (e) plus assumed Indebtedness under clause (k) below shall not exceed at any time $15,000,000;
(f) Indebtedness in respect of any Swap Agreement that is a contract entered into in the ordinary course of business to hedge or mitigate risks to which any Credit Party or any of its business; provided, that the Loan Parties and their Subsidiaries is exposed in the conduct of its business or the management of its liabilities shall enter into such permitted Hedge Agreements primarily for hedging (it being acknowledged by the Borrower that a Swap Agreement entered into for speculative purposes or of a speculative nature is not a Swap Agreement entered into in the ordinary course of business to hedge or mitigate risks)rather than speculative) purposes;
(gf) Indebtedness arising in connection with the financing of insurance premiums in the ordinary course of business;
(h) to the extent constituting Indebtedness, all obligations in connection with each Permitted Acquisition, including, without limitation, Earn Out Obligations;
(i) Indebtedness representing deferred compensation to officers, directors, employees of the Borrower and its Subsidiaries;
(j) unsecured Indebtedness of the Credit Parties in an aggregate amount not to exceed at secured by any time $15,000,000Xxxxxxxxx Xxxx; and
(k) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of a Credit Party in a transaction permitted hereunder; provided that any such Indebtedness was not created in anticipation of or in connection with the transaction or series of transactions pursuant to which such Person became a Subsidiary of a Credit Party; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (k) plus Indebtedness under clause (e) above shall not exceed at any time $15,000,000.
Appears in 1 contract
1Indebtedness. No Credit Party Neither Steel nor Borrowers shall, nor shall it they permit any of its Subsidiaries their Subsidiaries, other than WebBank, to, directly or indirectly, at any time create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness, other than: except:
(ai) Indebtedness under the ObligationsLoan Documents;
(bii) Existing Indebtedness of the Borrower to any other Credit Party;
(c) Guarantees with respect to Indebtedness permitted under this Section 8.1;
(d) Indebtedness existing as set forth on the Closing Date Schedule 8.2.1 and described in Schedule 8.1, together with any Permitted Refinancing Refinancings and guarantees thereof;
(eiii) Purchase Money Indebtedness, and Permitted Refinancings thereof, in an aggregate principal amount not to exceed $50,000,000 at any time outstanding;
(iv) Indebtedness with respect owing to (xSteel, any Borrower or any of their Subsidiaries permitted under Section 8.2.4(iv) Capital Leases [Loans and (y) purchase money IndebtednessInvestments]; provided, in the case of clause (x), provided that any such Indebtedness shall be secured only evidenced by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (e) plus assumed Indebtedness under clause (k) below shall not exceed at any time $15,000,000Global Intercompany Note;
(fv) Any (i) Lender Provided Interest Rate Hedge, (ii) Lender Provided Foreign Currency Hedge, (iii) other Interest Rate Hedge or Foreign Currency Hedge approved by the Administrative Agent, (iv) Indebtedness in respect of under any Swap Agreement that is entered into in the ordinary course of business to hedge Other Lender Provided Financial Service Product, or mitigate risks to which any Credit Party or any of its Subsidiaries is exposed in the conduct of its business or the management of its liabilities (it being acknowledged by the Borrower that v) Indebtedness under a Swap Agreement commodities trading agreement entered into for the purpose of hedging precious metals inventory and not for speculative purposes purposes; provided that the amount of such Indebtedness or other obligations of such Loan Party outstanding does not increase other than as a speculative nature is not result of fluctuations in commodity prices or by reason of fees and expenses payable in connection therewith; provided, however, the Borrowers and their Subsidiaries shall enter into a Swap Agreement entered into in the ordinary course of business to hedge Lender Provided Interest Rate Hedge or mitigate risks)another Interest Rate Hedge, Lender Provided Foreign Currency Hedge, Foreign Currency Hedge, or another Interest Rate Hedge only for hedging (rather than speculative) purposes;
(gvi) Indebtedness arising constituting Consigned Precious Metal Indebtedness in connection with an amount not to exceed the financing Maximum Precious Metal Consignment Amount;
(vii) Endorsement of insurance premiums items for deposit or collection of commercial paper received in the ordinary course of business;
(hviii) Indebtedness in respect of deposits or advances received in the ordinary course of business;
(ix) Except as otherwise permitted by Sections 8.2.1 (xiv) below, Indebtedness of Foreign Subsidiaries (which are not Loan Parties) in an aggregate principal amount not to exceed $50,000,000 in the aggregate at any time outstanding for the working capital and operational needs of such Foreign Subsidiaries and for Permitted Acquisitions, whether constituting loans by UK Borrower to API Group plc and its Subsidiaries or loans from third party financing sources to such Foreign Subsidiaries; provided, however, that except as otherwise permitted by Sections 8.2.1 (xiv) below, Indebtedness from third party financing sources to any Foreign Subsidiaries shall not exceed $15,000,000 in the aggregate at any time outstanding;
(x) the OMG Mortgage Debt in the aggregate principal amount thereof outstanding on the Closing Date after giving effect to the Transactions, less the aggregate principal amount of all repayments, repurchases or redemptions thereof after the date hereof, whether optional or mandatory;
(xi) any Guaranty permitted by Section 8.2.4 [Loans and Investments] by any Loan Party of the Indebtedness of any Subsidiary of the Borrowers permitted under this Section 8.2.1; provided however that no Loan Party, other than Handy & Xxxxxx Group Ltd. and its Subsidiaries, shall be permitted to guaranty any Consigned Precious Metal Indebtedness;
(xii) Indebtedness in an aggregate principal amount not to exceed $25,000,000 for the purpose of financing the purchase of an aircraft;
(xiii) To the extent constituting Indebtedness, all obligations the issuance of preferred units by Steel in connection with each a Permitted Acquisition, includingeither (i) up to $50,000,000 on the same terms as the preferred units of Steel outstanding on the date hereof, without limitationprovided that the Specified Transaction Requirements shall have been satisfied or (ii) under terms and conditions satisfactory to the Administrative Agent, Earn Out Obligationsincluding but not limited to tenor, mandatory cash redemption requirements and cash coupon requirements, if any;
(ixiv) Indebtedness representing deferred compensation to officers, directors, employees of UK Borrower constituting the Borrower and its SubsidiariesUK Swing Line;
(jxv) unsecured [Reserved];
(xvi) other Indebtedness (other than the issuance of the Credit Parties Disqualified Stock) in an aggregate principal amount not to exceed $25,000,000 at any time $15,000,000outstanding; and
(kxvii) Indebtedness of a Person existing at Notwithstanding anything to the time such Person becomes a Subsidiary of a Credit Party contrary set forth in a transaction permitted hereunder; provided that any such Indebtedness was not created in anticipation of this Section 8.2.1 [Indebtedness], unless and until each iGo Entity is wholly owned, directly or in connection with indirectly, by Borrowing Agent, and the transaction or series of transactions iGo Obligations are no longer limited pursuant to Section 1.6 [Limitation on Liability of iGo] above, the iGo Entities shall not be permitted to incur any Indebtedness that may otherwise be permitted pursuant to this Section 8.2.1 [Indebtedness] clauses (iii), (iv), (v), (vi), (xii) or (xvi), all of which such Person became a Subsidiary of a Credit Party; provided further clauses shall be deemed inapplicable to the iGo Entities, provided, however, that the sum of the iGo Entities may incur Purchase Money Indebtedness and Permitted Refinancings thereof, in an aggregate principal amount of not to exceed $500,000 at any Indebtedness under this clause (k) plus time outstanding, provided, further, however, that the iGo Entities shall be permitted to incur Indebtedness under clause (eiv) above shall not exceed at any time $15,000,000only to the extent such corresponding Investment by the Loan Parties is expressly permitted by Section 8.2.4(iv) [Loans and Investments] below.
Appears in 1 contract
1Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, other than: :
(a) Indebtedness among the ObligationsCredit Parties and their Subsidiaries permitted pursuant to Section 8.6(c); provided that upon the occurrence and continuation of an Event of Default, no payments shall be made or permitted to be made by any of the Credit Parties on any such inter-company Indebtedness until such time as the Obligations have been paid in full;
(b) Indebtedness of the Borrower to any other Credit Party;
(c) Guarantees with respect to Indebtedness permitted under this Section 8.1;
(d) Indebtedness existing on the Closing Date and described in Schedule 8.1, together with any Permitted Refinancing thereof;
(e) Indebtedness with respect to (x) Capital Leases and (y) purchase money Indebtedness, in each case including any such Indebtedness assumed in the connection with the acquisition of the applicable asset; provided, in the case of clause (x), that any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (eb) plus assumed Indebtedness under clause (k) below shall not exceed at any time $15,000,0001,000,000;
(fc) Indebtedness in respect of any Swap Agreement Contract that is entered into in the ordinary course of business to hedge or mitigate risks to which any Credit Party or any of its Subsidiaries is exposed in the conduct of its business or the management of its liabilities (it being acknowledged by the Borrower Credit Parties that a Swap Agreement Contract entered into for speculative purposes or of a speculative nature is not a Swap Agreement Contract entered into in the ordinary course of business to hedge or mitigate risks);
(d) Indebtedness incurred to finance the acquisition and/or construction of any vessels, together with any Permitted Refinancing thereof (including any such Indebtedness existing as of the Closing Date); provided that (i) the principal amount of such Indebtedness at the time of the incurrence thereof shall not exceed eighty percent (80%) of such acquisition and/or construction price, (ii) such Indebtedness shall not have a weighted average life to maturity less than the Term Loans and (iii) at the time of the incurrence of such Indebtedness, the Consolidated Leverage Ratio after giving effect to such Indebtedness on a Pro Forma Basis shall not exceed a ratio 0.25 to 1.0 less than the otherwise applicable maximum Consolidated Leverage Ratio under Section 8.8(a)(i);
(e) Indebtedness existing on the Closing Date and described in Schedule 8.1, together with any Permitted Refinancing thereof;
(f) Subordinated Debt;
(g) Indebtedness arising related to the letter of credit issued by JPMorganChase Bank, N.A., or its Affiliates, for the account of the Company, in connection with the financing favor of insurance premiums Tampa Electric Company in the ordinary course of businessa stated amount not exceeding $6,000,000;
(h) to the extent constituting Indebtedness, all obligations Indebtedness assumed in connection with each Permitted Acquisitions, provided that (i) the aggregate principal amount of all Indebtedness permitted under this Section 8.1(h) and Section 8.1(i) with respect to any Permitted Acquisition shall not exceed 80% of the total consideration paid in connection therewith, (ii) such Indebtedness was not incurred in connection with, or in anticipation or contemplation of, such Permitted Acquisition; and (iii) at the time of the assumption thereof, including, without limitation, Earn Out Obligationsthe Consolidated Leverage Ratio after giving effect to such Indebtedness on a Pro Forma Basis shall not exceed a ratio 0.25 to 1.0 less than the otherwise applicable maximum Consolidated Leverage Ratio under Section 8.8(a)(i);
(i) Indebtedness representing deferred compensation incurred in connection with Permitted Acquisitions, provided that (i) the aggregate principal amount of all Indebtedness permitted under Section 8.1(h) and this Section 8.1(i) with respect to officers, directors, employees any Permitted Acquisition shall not exceed 80% of the Borrower total consideration paid in connection therewith, (ii) such Indebtedness shall not have a weighted average life to maturity less than the Term Loans and its Subsidiaries(iii) at the time of the incurrence thereof, the Consolidated Leverage Ratio after giving effect to such Indebtedness on a Pro Forma Basis shall not exceed a ratio 0.25 to 1.0 less than the otherwise applicable maximum Consolidated Leverage Ratio under Section 8.8(a)(i);
(j) Guarantees with respect to Indebtedness of joint ventures permitted under Section 8.6(g);
(k) other unsecured Indebtedness of the Credit Parties in an aggregate principal amount not to exceed $5,000,000 at any one time $15,000,000outstanding; and
(kl) subject to limitations on Investments in Section 8.6, Guarantees with respect to Indebtedness of a Person existing at the time such Person becomes a Subsidiary of a Credit Party in a transaction permitted hereunder; provided that any such Indebtedness was not created in anticipation of or in connection with the transaction or series of transactions pursuant to which such Person became a Subsidiary of a Credit Party; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (k) plus Indebtedness under clause (e) above shall not exceed at any time $15,000,000Section 8.1.
Appears in 1 contract
1Indebtedness. No Credit Loan Party shall, nor shall it any Loan Party permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, at any time create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness, other than: except:
(a) Indebtedness under this Agreement and the Obligationsother Loan Documents;
(b) Indebtedness in respect of returned items, netting services, employee credit cards (and related credit card processing services), debit cards, stored value cards, purchase cards (including so-called “procurement cards” or “P-cards”), overdraft protections and automatic clearinghouse arrangements and other cash management and similar arrangements incurred in the Borrower to any other Credit Partyordinary course of business;
(c) Guarantees with respect to Indebtedness permitted under this Section 8.1Unsecured Indebtedness, in each case, arising from agreements of Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price, deferred purchase price, earn-out payments or similar obligations;
(d) Indebtedness existing on the Closing Date consisting of unpaid insurance premiums owing to insurance companies and described in Schedule 8.1, together with any Permitted Refinancing thereof;
(e) Indebtedness with respect to (x) Capital Leases and (y) purchase money Indebtedness; provided, in the case of clause (x), that any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (e) plus assumed Indebtedness under clause (k) below shall not exceed at any time $15,000,000;
(f) Indebtedness in respect of any Swap Agreement that is entered into in the ordinary course of business to hedge or mitigate risks to which any Credit Party or any of its Subsidiaries is exposed in the conduct of its business or the management of its liabilities (it being acknowledged by the Borrower that a Swap Agreement entered into for speculative purposes or of a speculative nature is not a Swap Agreement entered into in the ordinary course of business to hedge or mitigate risks);
(g) Indebtedness arising insurance brokers incurred in connection with the financing of insurance premiums in the ordinary course of business;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(f) Indebtedness arising under guaranties made in the ordinary course of business of obligations of any Loan Party, which obligations are otherwise permitted hereunder; provided that if such obligation is subordinated to the Obligations, such guaranty shall be subordinated to the same extent;
(g) [Reserved];
(h) existing Indebtedness as set forth on Schedule 7.1(h) (including any extensions or renewals thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to the extent constituting Indebtednessa reasonable premium or other reasonable amount paid, all obligations and fees and expenses reasonably incurred, in connection with each Permitted Acquisitionsuch refinancing and (ii) the terms relating to principal amount, includingamortization, without limitationmaturity, Earn Out Obligationscollateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(i) Indebtedness incurred (A) with respect to Purchase Money Security Interests, Synthetic Lease Obligations and Capital Leases for fixed or capital assets set forth on Schedule 7.1(i), and (B) Indebtedness incurred with respect to Purchase Money Security Interests, Synthetic Lease Obligations and Capital Leases for fixed or capital assets not to exceed in the aggregate amount at any time the greater of (i) $10,000,000 and (ii) 15% of EBITDA of the Borrower and the Restricted Subsidiaries for the Test Period;
(j) Unsecured Indebtedness solely among Loan Parties;
(k) Indebtedness (contingent or otherwise) of any Loan Party arising under (i) any Secured Hedge or (ii) Indebtedness under any Secured Bank Product entered into in the ordinary course of business; provided, however, that (i) no Loan Party shall enter into or incur any Secured Hedge that constitutes a Swap Obligation if at the time it enters into or incurs such Swap Obligation it does not constitute an “eligible contract participant” as defined in the Commodity Exchange Act, and (ii) the Loan Parties and their Subsidiaries shall enter into a Secured Hedge only for hedging (rather than speculative) purposes;
(l) Guarantees and other Contingent Obligations permitted by Section 7.4;
(m) Indebtedness of any Person (other than revolving credit facilities or commitments therefor) that becomes a Restricted Subsidiary that is assumed in connection with any Permitted Acquisition, in an aggregate amount at any time not to exceed 100% of EBITDA of the Borrower and the Restricted Subsidiaries for the Test Period; provided that (i) such Indebtedness was existing at the time of closing such Permitted Acquisition and not incurred in contemplation of such Permitted Acquisition, (ii) no portion of such Indebtedness matures prior to the latest maturity date of any of the Loans, (iii) immediately before and immediately after giving effect to the incurrence or assumption thereof and any related transactions, no Default or Event of Default has occurred and is continuing and (iv) immediately after giving effect to the incurrence or assumption thereof and any related transactions, the Borrower shall be in compliance on a pro forma basis with the financial covenant set forth in Article VIII for the Test Period;
(n) Indebtedness with respect to cash management and similar arrangements in the ordinary course of business;
(o) Indebtedness representing deferred compensation to officers, directors, officers or employees of the Borrower and its SubsidiariesRestricted Subsidiaries incurred in the ordinary course of business;
(jp) unsecured Indebtedness in respect of Permitted Stimulus Indebtedness;
(q) [Reserved];
(r) other Indebtedness of the Credit Parties Borrower in an aggregate amount at any time not to exceed the greater of (i) $50,000,000 and (ii) 50% of EBITDA of the Borrower and the Restricted Subsidiaries for the Test Period; provided that no more than $10,000,000 of Indebtedness incurred pursuant to this clause (r) may be secured Indebtedness (and any such secured Indebtedness shall be subordinated in right of payment and remedies to the Obligations on terms reasonably acceptable to the Administrative Agent);
(s) Indebtedness incurred by Foreign Restricted Subsidiaries (other than GTT and its Subsidiaries, One Communications and its Subsidiaries, and CAH Holdco and its Subsidiaries) in an aggregate amount at any time not to exceed the greater of (i) $15,000,00010,000,000 and (ii) 10% of EBITDA of the Borrower and the Restricted Subsidiaries for the Test Period;
(t) the RTFC Indebtedness and any refinancing Indebtedness therefor refinanced not to exceed an aggregate principal amount of $60,000,000 at any time; and
(ku) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of a Credit Party in a transaction permitted hereunder; provided that any such Indebtedness was not created in anticipation of or in connection with the transaction or series of transactions pursuant to which such Person became a Subsidiary of a Credit Party; provided further that the sum of (i) incurred by GTT and its Subsidiaries, the aggregate principal amount of any Indebtedness under this clause (k) plus Indebtedness under clause (e) above which shall not exceed at any time $15,000,000an amount equal to (w) EBITDA of GTT and its Subsidiaries on a consolidated basis for the then most recently completed four (4) fiscal quarters multiplied by (x) 1.5; and (ii) incurred by One Communications and its Subsidiaries, the aggregate amount of which shall not exceed at any time an amount equal to (y) EBITDA of One Communications and its Subsidiaries on a consolidated basis for the then most recently completed four (4) fiscal quarters multiplied by (z) (i) 1.5 or, (ii) to the extent One Communications or its Affiliates use all or any portion of such Indebtedness to redeem or repurchase, through a tender offer or otherwise, all or any portion of the outstanding shares of capital stock of One Communications not indirectly owned by Borrower, 2.0.
Appears in 1 contract
Samples: Joinder, Consent, First Amendment and Reaffirmation Agreement (ATN International, Inc.)
1Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, createCreate, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness, other thanexcept:
(a) the Obligations;
, (b) Indebtedness existing as of the Borrower to any other Credit Party;
Closing Date set forth in Disclosure Schedule (3.18), (c) Guarantees with respect by endorsement of instruments or items of payment for deposit to Indebtedness permitted under this Section 8.1;
the general account of such Credit Party, (d) for Guaranteed Indebtedness existing on incurred for the Closing Date and described in Schedule 8.1benefit of any Credit Party if the primary obligation is permitted by this Agreement, together with any Permitted Refinancing thereof;
(e) reserved, (f) Indebtedness outstanding under the Revolving Loan Agreement in an aggregate amount not exceeding the Maximum Priority Revolving Loan Debt, (g) the Permitted Xxxxxx-Xxxxxx Pension Plan Obligations, (h) Indebtedness with respect to (xi) Capital Leases Lease Obligations existing as the Closing Date set forth in Disclosure Schedule (3.18) and (yii) purchase money Indebtednessadditional Capital Lease Obligations and Purchase Money Obligations in an aggregate amount outstanding at any time not to exceed $250,000; provided, in the case of clause (x), that any such Indebtedness Capital Lease Obligations and Purchase Money Obligations under this clause (h) shall be secured only by the asset subject to such additional Capital Lease, and, in Lease Obligation or the case of clause (y), that any such Indebtedness shall be secured only by the acquired asset acquired in connection with the incurrence of such Indebtedness; provided further that Capital Lease Obligation or Purchase Money Obligation, as the sum of the aggregate principal amount of case may be, any Indebtedness under this clause insurance thereon and proceeds thereof, (e) plus assumed Indebtedness under clause (k) below shall not exceed at any time $15,000,000;
(fi) Indebtedness in respect of any Swap Agreement that is Hedging Obligations, provided, that, such Hedging Obligations are (or were) entered into by a Credit Party in the ordinary course of business to hedge for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or mitigate risks to which any property held or reasonably anticipated by such Credit Party Party, or changes in the value of securities issued by such Credit Party, and not for purposes of speculation or taking a “market view”, (j) Indebtedness in respect of letters of credit, bank guarantees and banker’s acceptances in each case incurred in the ordinary course of business, and reimbursement of obligations in respect of any of its Subsidiaries is exposed the foregoing, in all cases to the conduct of its business or extent permitted under the management of its liabilities Revolving Loan Documents, (it being acknowledged by the Borrower that a Swap Agreement entered into for speculative purposes or of a speculative nature is not a Swap Agreement entered into k) Indebtedness incurred in the ordinary course of business to hedge or mitigate risks);
under surety bonds, performance bonds, completion guarantees, appeal bonds, bid bonds and similar obligations and reimbursement and indemnification obligations in respect of any of the foregoing, (gl) Indebtedness arising in connection respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with the financing of insurance premiums respect to reimbursement-type obligations regarding workers compensation claims, (m) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business;
, (hn) Indebtedness of any Credit Party (other than Inactive Subsidiaries) owing to the extent constituting Indebtednessany other Credit Party (other than Inactive Subsidiaries); provided that in each case, all obligations in connection with each Permitted Acquisition, including, without limitation, Earn Out Obligations;
such Indebtedness shall be (i) Indebtedness representing deferred compensation evidenced by promissory notes and all such notes shall be subject to officers, directors, employees a first priority Lien pursuant to this Agreement and (ii) unsecured and subordinated in right of payment in full of the Borrower and its Subsidiaries;
(j) unsecured Indebtedness Obligations pursuant to the terms of the Credit Parties applicable promissory notes or an intercompany subordination agreement with terms reasonably satisfactory to the Agent, (o) the Existing Letters of Credit, and (p) Subordinated Debt under the Subordinated Loan Documents in an original aggregate principal amount not to exceed at $750,000, plus any time $15,000,000; and
fees, costs or expenses incurred or payable in connection therewith, plus any interest accrued thereon in accordance with the terms of the Subordinated Loan Documents, so long as (ki) such Indebtedness of is subject to a Person existing at the time such Person becomes a Subsidiary of a Subordination Agreement which remains in full force and effect and (ii) no Credit Party makes any payment to the Subordinated Creditors or otherwise in a transaction permitted hereunder; provided that any respect of such Indebtedness was not created Indebtedness, except for payments made in anticipation of or in connection full compliance with the transaction or series of transactions pursuant Subordination Agreement applicable to which such Person became a Subsidiary of a Subordinated Debt, and (q) any other unsecured Indebtedness incurred after the Closing Date in an aggregate outstanding amount for all such Credit Party; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (k) plus Indebtedness under clause (e) above shall Parties combined not exceed at any time exceeding $15,000,000.500,000.
Appears in 1 contract
Samples: Term Loan, Guarantee and Security Agreement (Williams Industrial Services Group Inc.)
1Indebtedness. No Credit DIP Note Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, other than: except:
(a) the Obligations;
(b) Indebtedness of the Borrower any Guarantor Subsidiary to Company or to any other Credit PartyGuarantor Subsidiary, or of Company to any Guarantor Subsidiary; provided, (i) all such Indebtedness shall be evidenced by the Intercompany Note, and shall be subject to a Lien described in, and with the priority provided in, Section 2.24, pursuant to the Pledge and Security Agreement, (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to the Payment in Full of all Obligations pursuant to the terms of the Intercompany Note, and (iii) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Guarantor Subsidiary to Company or to any of its Subsidiaries for whose benefit such payment is made;
(c) Guarantees with respect Indebtedness constituting Capital Lease Obligations to Indebtedness permitted under this Section 8.1the extent approved in writing by Collateral Agent in its sole discretion;
(d) Indebtedness existing on the Closing Date and described in Schedule 8.1, together with any Permitted Refinancing thereof[reserved];
(e) Indebtedness with respect that may be deemed to (x) Capital Leases and (y) purchase money Indebtedness; providedexist pursuant to any performance, surety, appeal or similar bonds or statutory obligations incurred in the case ordinary course of clause (x)business and approved by the Bankruptcy Court, that and guarantee obligations in respect of any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (e) plus assumed Indebtedness under clause (k) below shall not exceed at any time $15,000,000;
(f) Indebtedness in respect of any Swap Agreement that is entered into treasury, depositary, cash management and netting services, automatic clearinghouse arrangements, overdraft protections, employee credit card programs and similar arrangements or otherwise arising in connection with securities accounts and deposit accounts, in each case, in the ordinary course of business to hedge or mitigate risks to which any Credit Party or any of its Subsidiaries is exposed in the conduct of its business or the management of its liabilities (it being acknowledged and approved by the Borrower that a Swap Agreement entered into for speculative purposes or of a speculative nature is not a Swap Agreement entered into Bankruptcy Court;
(g) guaranties in the ordinary course of business to hedge or mitigate risks)of the obligations of suppliers, customers, franchisees and licensees of Company and its Subsidiaries;
(h) [reserved];
(gi) Indebtedness arising in connection with incurred prior to the Petition Date and described on Schedule 6.1;
(j) [reserved];
(k) [reserved];
(l) Indebtedness consisting of the financing of insurance premiums in the ordinary course of businessbusiness and approved by the Bankruptcy Court;
(hm) to bankers' acceptances, bank guarantees, letters of credit, warehouse receipt or similar facilities, in each case incurred or issued, as applicable, in the extent constituting Indebtedness, all obligations in connection with each Permitted Acquisition, including, without limitation, Earn Out Obligationsordinary course of business and approved by the Bankruptcy Court;
(in) Indebtedness representing deferred compensation owed to officers(including obligations in respect of letters of credit for the benefit of) any Person providing worker's compensation, directorshealth, employees of the Borrower disability or other employee benefits or property, casualty or liability insurance to Company and its Subsidiaries;
(j) unsecured Indebtedness of the Credit Parties in an aggregate amount not , pursuant to exceed at any time $15,000,000reimbursement or indemnification obligations to such Person; and
(ko) Indebtedness prepaid or deferred revenue, deferred tax liabilities, liabilities associated with customer prepayments and deposits and other similar accrued obligations (including accruals for payroll and other operating expenses accrued in the ordinary course of a Person existing at business) and customary obligations under employment agreements and deferred compensation, in each case, incurred in the time such Person becomes a Subsidiary ordinary course of a Credit Party in a transaction permitted hereunder; provided that any such Indebtedness was not created in anticipation of or in connection with the transaction or series of transactions pursuant to which such Person became a Subsidiary of a Credit Party; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (k) plus Indebtedness under clause (e) above shall not exceed at any time $15,000,000business.
Appears in 1 contract
1Indebtedness. No Credit Loan Party shall, nor shall it any Loan Party permit any of its Subsidiaries to, directly or indirectly, at any time create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness, other than: except:
(a) Indebtedness under this Agreement and the Obligationsother Loan Documents;
(b) Indebtedness of the Borrower (i) a Loan Party or a Subsidiary of a Loan Party to any other Credit Partyanother Loan Party and (ii) a non-Loan Party Subsidiary to another non-Loan Party Subsidiary;
(c) Guarantees with respect to Indebtedness permitted (contingent or otherwise) of any Loan Party or a Subsidiary of a Loan Party arising under this Section 8.1any Interest Rate Hedge; provided, that (i) no Loan Party or a Subsidiary of a Loan Party shall enter into or incur a Swap Obligation if at the time it enters into or incurs such Swap Obligation it does not constitute an “eligible contract participant” as defined in the Commodity Exchange Act, and (ii) the Loan Parties and their Subsidiaries shall enter into Interest Rate Xxxxxx primarily for hedging (rather than speculative) purposes;
(d) Guaranties by the Loan Parties and their Subsidiaries of Indebtedness existing on the Closing Date and described in Schedule 8.1, together with any Permitted Refinancing thereofpermitted hereunder (other than Excluded Swap Obligations);
(e) Indebtedness Obligations (contingent or otherwise) of any Loan Party arising under any Hedge Agreements with respect to (x) Capital Leases and (y) purchase money Indebtedness; providedinterest rates, in the case of clause (x)commodities, that any such Indebtedness shall foreign exchange, foreign shipping, freight or other transportation, or other transactions expected to be secured only by the asset subject made pursuant to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (e) plus assumed Indebtedness under clause (k) below shall not exceed at any time $15,000,000;
(f) Indebtedness in respect of any Swap Agreement that is a contract entered into in the ordinary course of business to hedge or mitigate risks to which business; provided, that the Loan Parties and their Subsidiaries shall enter into such permitted Hedge Agreements primarily for hedging (rather than speculative) purposes;
(f) Indebtedness secured by any Credit Party or any of its Subsidiaries is exposed in the conduct of its business or the management of its liabilities (it being acknowledged by the Borrower that a Swap Agreement entered into for speculative purposes or of a speculative nature is not a Swap Agreement entered into in the ordinary course of business to hedge or mitigate risks)Xxxxxxxxx Xxxx;
(g) Indebtedness arising of a Loan Party to a non-Loan Party Subsidiary in connection with the financing of insurance premiums in the ordinary course of businessan aggregate principal amount not to exceed $200,000,000;
(h) Indebtedness (including Indebtedness incurred with respect to Purchase Money Security Interests, Synthetic Lease Obligations and Capital Leases for fixed or capital assets) not otherwise permitted under this Section 7.1, provided, however, that (i) at no time shall the aggregate amount of all Indebtedness outstanding under this subsection (h) exceed the lesser of (A) 55% of Consolidated Tangible Net Worth (as reported to the extent constituting IndebtednessAdministrative Agent in the Compliance Certificate most recently required to be delivered pursuant to Section 6.1(c)) and (B) $2,500,000,000, and (ii) at no time shall the aggregate amount of all obligations secured Indebtedness outstanding under this subsection (h) exceed 15% of Consolidated Tangible Net Worth (as reported to the Administrative Agent in connection with each Permitted Acquisition, including, without limitation, Earn Out Obligationsthe Compliance Certificate most recently required to be delivered pursuant to Section 6.1(c));
(i) Indebtedness representing deferred compensation in an aggregate principal amount of up to officers$250,000,000 at any one time outstanding arising under (i) Recourse Factoring Arrangements and (ii) to the extent the purchase of Securitization Receivables thereunder is judicially recharacterized as the financing of such Securitization Receivables secured by a Lien thereon, directors, employees of the Borrower and its Subsidiaries;Non-Recourse Factoring Arrangements; and
(j) unsecured Indebtedness of the Credit Parties in an aggregate amount not to exceed at any time $15,000,000; and
(k) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of a Credit Party in a transaction permitted hereunder; provided that any such Indebtedness was not created in anticipation of or in connection with the transaction or series of transactions pursuant to which such Person became a Subsidiary of a Credit Party; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (k) plus Indebtedness under clause (e) above shall not exceed up to $450,000,000 at any time $15,000,000outstanding under the Revolving Credit Facility (including refinancings thereof) on terms and conditions acceptable to the Administrative Agent in its sole discretion.
Appears in 1 contract
1Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, other thanexcept:
(a) the Obligations;
(b) Indebtedness of the Borrower any Guarantor Subsidiary to Company or to any other Credit Party;Guarantor Subsidiary, or of Company to any Guarantor Subsidiary; provided, (i) all such Indebtedness shall be evidenced by the Intercompany Note and Subordination, and shall be subject to a First Priority Lien pursuant to the Pledge and Security Agreement, (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to the Payment in Full of all Obligations pursuant to the terms of the Intercompany Note and Subordination, and (iii) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Guarantor Subsidiary to Company or to any of its Subsidiaries for whose benefit such payment is made;
(c) Guarantees with respect to Indebtedness permitted under this Section 8.1;[Reserved]
(d) Indebtedness existing on incurred by Holdings or any of its Subsidiaries arising from agreements providing for customary indemnification or from customary guaranties or letters of credit, surety bonds or performance bonds securing the Closing Date performance of Company or any such Subsidiary pursuant to such agreements in connection with permitted dispositions of any business, assets or Subsidiary of Holdings or any of its Subsidiaries and described in Schedule 8.1customary and reasonable indemnity obligations entered into the ordinary course of business of a Credit Party pursuant to the terms of such Credit Party’s bylaws, together with any Permitted Refinancing thereofoperating agreement or other similar constituent documents;
(e) Indebtedness that may be deemed to exist pursuant to any performance, surety, appeal or similar bonds or statutory obligations incurred in the ordinary course of business, and guarantee obligations in respect of any such Indebtedness;
(f) Indebtedness in respect of (i) netting services, overdraft protections and other services provided in connection with deposit accounts and (ii) unsecured Indebtedness in respect of corporate credit cards, p-cards and similar cards in an aggregate outstanding amount not to exceed $500,0001,000,000 at any time, in each case, incurred in the ordinary course of business;
(g) guaranties by Company of Indebtedness of a Guarantor Subsidiary or guaranties by a Subsidiary of Company of Indebtedness of Company or a Guarantor Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness that is being guaranteed is unsecured and/or subordinate to the Obligations (in payment or Lien priority), then such guaranties shall also be unsecured and/or subordinated to the Obligations to the same extent as such guaranteed Indebtedness;
(h) Indebtedness existing on the date hereof and described in Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement, and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(i) Indebtedness in an aggregate amount not to exceed at any time $1,000,0002,000,000 consisting of (x) Capital Leases Lease Obligations and (y) other purchase money Indebtedness; provided, in the case of clause (x), that any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall (i) be secured only by the asset acquired in connection with the incurrence of such Indebtedness; provided further that the sum Indebtedness and (ii) constitute not less than 100% of the aggregate principal amount of any Indebtedness consideration paid with respect to such asset;
(j) obligations under this clause (e) plus assumed Indebtedness under clause Hedge Agreements permitted pursuant to Section 6.7;
(k) below shall Indebtedness owed to insurance carriers consisting of unpaid premiums (not exceed at any time $15,000,000;
(fin excess of one year’s premium) Indebtedness in respect of any Swap Agreement that is entered into and incurred in the ordinary course of business to hedge or mitigate risks to which any of the Credit Party or any of its Subsidiaries is exposed in the conduct of its business or the management of its liabilities (it being acknowledged by the Borrower that a Swap Agreement entered into for speculative purposes or of a speculative nature is not a Swap Agreement entered into in the ordinary course of business to hedge or mitigate risks);Parties;
(gl) unsecured Subordinated Indebtedness arising issued by HoldignsHoldings to former officers, managers, and employees thereof, or to their respective estates, spouses or former spouses, in connection with each case issued to such Persons upon the financing death or separation from employment of insurance premiums in such person to finance the ordinary course purchase or redemption of business;
(h) to the extent constituting Indebtedness, all obligations in connection with each Permitted Acquisition, including, without limitation, Earn Out Obligations;
Capital Stock of Holdings so long as (i) no Default or Event of Default has occurred and is continuing at the time of such issuance or would result from the incurrence of such Indebtedness representing deferred compensation and (ii) the aggregate amount of such Indebtedness does not to officers, directors, employees of the Borrower and its Subsidiaries;exceed $500,0001,000,000;
(jm) unsecured Subordinated Indebtedness of the Credit Parties subject to a Subordination Agreement in an aggregate amount not to exceed at any time $15,000,00010,000,000; provided, that the Lenders were offered the right of first offer to provide the Subordinated Indebtedness, provided, further, that if the Lenders have indicated their intent to provide the Subordinated Indebtedness within five Business Days of request by the Loan Parties (and provided a commitment letter or similar agreement to provide such Subordinated Indebtedness within 15 Business Days), then such Subordinated Indebtedness may be provided by a party or parties selected by the Loan Parties in their sole discretion on terms no more favorable (as to term and pricing) to the Credit Parties than those of Subordinated Indebtedness offered by one or more Lenders during such five or fifteen Business Day period, as applicable; and
(kn) (m) other unsecured Indebtedness of a Person existing at Holdings and its Subsidiaries (other than Indebtedness of the time such Person becomes a Subsidiary of a Credit Party types listed in Section 6.1(a) – (lm)) that is unsecured and subordinated to the Obligations in a transaction permitted hereunder; provided that any such Indebtedness was manner satisfactory to Administrative Agent in its sole discretion and does not created in anticipation of or in connection with the transaction or series of transactions pursuant to which such Person became a Subsidiary of a Credit Party; provided further that the sum of the exceed an aggregate principal amount equal to $500,0001,500,000. Notwithstanding anything to the contrary herein, any Subsidiary of the BorrowerCompany that is not a Guarantor shall not, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness under this clause for borrowed money, notes or bonds other than the Obligations (k) plus Indebtedness under clause (e) above and with respect to any Subsidiaries organized in Italy, such Subsidiaries shall not exceed at not, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any time $15,000,000.Indebtedness).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (ONE Group Hospitality, Inc.)
1Indebtedness. No Credit Loan Party shall, nor shall it any Loan Party permit any of its Subsidiaries to, directly or indirectly, at any time create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness, other than: except:
(a) Indebtedness under this Agreement and the Obligationsother Loan Documents;
(b) Indebtedness of the Borrower (i) a Loan Party or a Subsidiary of a Loan Party to any other Credit Partyanother Loan Party and (ii) a non-Loan Party Subsidiary to another non-Loan Party Subsidiary;
(c) Guarantees with respect to Indebtedness permitted (contingent or otherwise) of any Loan Party or a Subsidiary of a Loan Party arising under this Section 8.1any Interest Rate Hedge; provided, that (i) no Loan Party or a Subsidiary of a Loan Party shall enter into or incur a Swap Obligation if at the time it enters into or incurs such Swap Obligation it does not constitute an “eligible contract participant” as defined in the Commodity Exchange Act, and (ii) the Loan Parties and their Subsidiaries shall enter into Interest Rate Xxxxxx primarily for hedging (rather than speculative) purposes;
(d) Guaranties by the Loan Parties and their Subsidiaries of Indebtedness existing on the Closing Date and described in Schedule 8.1, together with any Permitted Refinancing thereofpermitted hereunder (other than Excluded Swap Obligations);
(e) Indebtedness Obligations (contingent or otherwise) of any Loan Party arising under any Hedge Agreements with respect to (x) Capital Leases and (y) purchase money Indebtedness; providedinterest rates, in the case of clause (x)commodities, that any such Indebtedness shall foreign exchange, foreign shipping, freight or other transportation, or other transactions expected to be secured only by the asset subject made pursuant to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (e) plus assumed Indebtedness under clause (k) below shall not exceed at any time $15,000,000;
(f) Indebtedness in respect of any Swap Agreement that is a contract entered into in the ordinary course of business to hedge or mitigate risks to which any Credit Party or any of its business; provided, that the Loan Parties and their Subsidiaries is exposed in the conduct of its business or the management of its liabilities shall enter into such permitted Hedge Agreements primarily for hedging (it being acknowledged by the Borrower that a Swap Agreement entered into for speculative purposes or of a speculative nature is not a Swap Agreement entered into in the ordinary course of business to hedge or mitigate risks)rather than speculative) purposes;
(gf) Indebtedness arising in connection with the financing of insurance premiums in the ordinary course of businesssecured by any Xxxxxxxxx Xxxx;
(h) to the extent constituting Indebtedness, all obligations in connection with each Permitted Acquisition, including, without limitation, Earn Out Obligations;
(i) Indebtedness representing deferred compensation to officers, directors, employees of the Borrower and its Subsidiaries;
(j) unsecured Indebtedness of the Credit Parties in an aggregate amount not to exceed at any time $15,000,000; and
(k) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of a Credit Party in a transaction permitted hereunder; provided that any such Indebtedness was not created in anticipation of or in connection with the transaction or series of transactions pursuant to which such Person became a Subsidiary of a Credit Party; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (k) plus Indebtedness under clause (e) above shall not exceed at any time $15,000,000.
Appears in 1 contract
1Indebtedness. No Credit Party shallEach of the Loan Parties shall not, nor and shall it not permit any of its non-domestic Subsidiaries to, directly or indirectly, at any time create, incur, assume or guarantysuffer to exist any Indebtedness, except:
(i) Obligations under this Agreement and the other Loan Documents;
(ii) Indebtedness secured by Liens permitted by Section 8.2.2(iv), and extensions, renewals and refinancings thereof; provided that the aggregate amount of all such Indebtedness at any time outstanding shall not exceed an amount equal to five percent (5%) of the Consolidated Net Tangible Assets;
(iii) Indebtedness of any non-domestic Subsidiary of the Company to any other non-domestic Subsidiary of the Company; and, Indebtedness of any Loan Party to any other Loan Party, provided that the obligations of the Borrowers to each of the other Loan Parties under such Indebtedness shall be subordinated to the Obligations of the Borrowers hereunder in a manner reasonably satisfactory to the Administrative Agent;
(iv) Indebtedness arising under the 2013 Note Indenture and any New Note Indenture that is or pursuant to its terms may become secured (other than to the extent of customary rights of set off) by any Lien on any property or assets of any Loan Party in an aggregate outstanding amount not at any time exceeding $500,000,000;
(v) Any (i) Lender Provided Interest Rate Hedge, (ii) Lender Provided Foreign Currency Hedge, (iii) Lender Provided Commodity Hedge, (iv) other Commodity Hedge, Interest Rate Hedge or Foreign Currency Hedge approved by the Administrative Agent or (v) Indebtedness under any Other Lender Provided Financial Services Product; provided however, the Loan Parties shall enter into a Commodity Hedge, Interest Rate Hedge or Foreign Currency Hedge only for hedging (rather than speculative) purposes;
(vi) Indebtedness described on Schedule 8.2.1 and, subject to Section 8.2.15 [Limitations on Indentures], any extension, renewal or refinancing thereof to the extent the principal amount thereof is not increased or made senior in right of payment to the Loans, and so long as the terms thereof are not materially more burdensome than those of the Indebtedness being extended, renewed, or otherwise become refinanced;
(vii) Contingent Liabilities of the Loan Parties or remain directly or indirectly liable any non-domestic Subsidiary of a Loan Party arising with respect to (i) any IndebtednessIndebtedness permitted hereby, and (ii) notwithstanding any other than:
provision hereof (abut subject to the proviso below), guaranties of performance, completion, quality, and the like provided by the Company or any Subsidiary of the Company with respect to performance or similar obligations owing to a Person by the Company or any of its Subsidiaries provided, however, that the sum of all amounts paid plus all costs incurred, as the case may be, by the Loan Parties with respect to guaranties of the performance, completion, quality, or similar obligations of all non-domestic Subsidiaries of the Company, to the extent such amounts paid or costs incurred by Loan Parties are not repaid or reimbursed by the non-domestic Subsidiaries of the Company, shall be deemed to be Indebtedness of non-domestic Subsidiaries of the Company owing to Loan Parties for the purposes, and subject to the limitations of clause (ix) of this Section 8.2.1 (for the Obligationsavoidance of doubt, none of such obligations incurred or amounts paid or costs incurred by the Company or any of its Subsidiaries with respect to guaranties of the performance, completion, quality, or similar obligations of the Company or any of its Subsidiaries shall be deemed to be Indebtedness of, or a loan to, the Company or any of its Subsidiaries for the purposes of the calculation of any of the financial covenants of Section 8.2.13 [Financial Covenants]);
(bviii) Indebtedness of the Borrower to Loan Parties and any other Credit Party;
(c) Guarantees with respect to Indebtedness permitted under this Section 8.1;
(d) Indebtedness existing on the Closing Date and described in Schedule 8.1, together with any Permitted Refinancing thereof;
(e) Indebtedness with respect to (x) Capital Leases and (y) purchase money Indebtedness; provided, in the case non-domestic Subsidiary of clause (x), that any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (e) plus assumed Indebtedness under clause (k) below shall not exceed at any time $15,000,000;
(f) Indebtedness a Loan Party in respect of any Swap Agreement that is entered into surety bonds, performance bonds, bid bonds, or similar obligations arising in the ordinary course of business up to hedge or mitigate risks an amount reasonably determined to which any Credit Party or any of its Subsidiaries is exposed in the conduct of its business or the management of its liabilities (it being acknowledged by the Borrower that a Swap Agreement entered into for speculative purposes or of a speculative nature is not a Swap Agreement entered into in the ordinary course of business to hedge or mitigate risks);
(g) Indebtedness arising in connection with the financing of insurance premiums in the ordinary course of business;
(h) to the extent constituting Indebtedness, be payable under all obligations in connection with each Permitted Acquisition, including, without limitation, Earn Out Obligations;
(i) Indebtedness representing deferred compensation to officers, directors, employees of the Borrower and its Subsidiaries;
(j) unsecured Indebtedness of the Credit Parties in an aggregate amount surety bonds then outstanding not to exceed at any time $15,000,000750,000,000 in the aggregate;
(ix) Indebtedness of any non-domestic Subsidiary of the Company to any Loan Party or to any other Person, provided that the aggregate of all such Indebtedness in existence at any time of calculation shall not exceed the equivalent amount of $100,000,000; and
(kx) other unsecured Indebtedness of any Loan Party, including Indebtedness arising under a Person existing at New Note Indenture that is not and pursuant to its terms will not become secured (other than to the time extent of customary rights of set off) by any Lien on any property or assets of any Loan Party, so long as (A) no Potential Default or Event of Default shall exist immediately prior to, or after giving effect to, the incurrence of such Person becomes a Subsidiary of a Credit Party Indebtedness, and (B) the Loan Parties are in a transaction permitted hereunder; provided that any such Indebtedness was not created in anticipation of or in connection compliance with the transaction or series financial ratios and restrictions set forth in Section 8.2.13 [Financial Covenants] immediately after giving effect to the incurrence of transactions pursuant to which such Person became a Subsidiary of a Credit Party; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (k) plus Indebtedness under clause (e) above shall not exceed at any time $15,000,000Indebtedness.
Appears in 1 contract
Samples: Revolving Credit Facility (Westinghouse Air Brake Technologies Corp)
1Indebtedness. No Credit Note Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, other than: except:
(a) the Obligations;
(b) Indebtedness of the Borrower any Guarantor Subsidiary to Company or to any other Credit PartyGuarantor Subsidiary, or of Company to any Guarantor Subsidiary; provided, (i) all such Indebtedness shall be evidenced by the Intercompany Note, and shall be subject to a First Priority Lien pursuant to the Pledge and Security Agreement, (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to the Payment in Full of all Obligations pursuant to the terms of the Intercompany Note, and (iii) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Guarantor Subsidiary to Company or to any of its Subsidiaries for whose benefit such payment is made;
(c) Guarantees with respect to Indebtedness permitted under this Section 8.1[Reserved];
(d) Indebtedness existing on incurred by Company or any of its Subsidiaries arising from agreements providing for customary indemnification or from customary guaranties or letters of credit, surety bonds or performance bonds securing the Closing Date and described performance of Company or any such Subsidiary pursuant to such agreements in Schedule 8.1connection with Permitted Acquisitions or permitted dispositions of any business, together with assets or Subsidiary of Company or any Permitted Refinancing thereofof its Subsidiaries;
(e) Indebtedness with respect that may be deemed to (x) Capital Leases and (y) purchase money Indebtedness; providedexist pursuant to any performance, surety, appeal or similar bonds or statutory obligations incurred in the case ordinary course of clause (x)business, that and guarantee obligations in respect of any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (e) plus assumed Indebtedness under clause (k) below shall not exceed at any time $15,000,000;
(f) Indebtedness in respect of any Swap Agreement that is entered into treasury, depositary, cash management and netting services, automatic clearinghouse arrangements, overdraft protections, employee credit card programs and similar arrangements or otherwise arising in connection with securities accounts and deposit accounts, in each case, in the ordinary course of business;
(g) guaranties in the ordinary course of business to hedge or mitigate risks to which any Credit Party or any of the obligations of suppliers, customers, franchisees and licensees of Company and its Subsidiaries is exposed in the conduct of its business or the management of its liabilities (it being acknowledged by the Borrower that a Swap Agreement entered into for speculative purposes or of a speculative nature is not a Swap Agreement entered into in the ordinary course of business to hedge or mitigate risks)Subsidiaries;
(gh) guaranties by Company of Indebtedness of a Guarantor Subsidiary or guaranties by a Subsidiary of Company of Indebtedness of Company or a Guarantor Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness that is being guaranteed is unsecured and/or subordinate to the Obligations (in payment or Lien priority), then such guaranties shall also be unsecured and/or subordinated to the Obligations to the same extent as such guaranteed Indebtedness;
(i) Indebtedness arising described in connection Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement, and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Purchasers than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(j) Indebtedness in an aggregate amount (taken together with the amount of any other Indebtedness secured by Liens pursuant to Section 6.2(o)) not to exceed at any time outstanding an aggregate principal amount equal to (A) $500,000 minus (B) the aggregate outstanding principal amount of all CARES Act Indebtedness (but in no event less than zero).
(k) obligations under Hedge Agreements which are not for speculative purposes;
(l) Indebtedness consisting of the financing of insurance premiums in the ordinary course of business;
(hm) to bankers' acceptances, bank guarantees, letters of credit, warehouse receipt or similar facilities, in each case incurred or issued, as applicable, in the extent constituting Indebtedness, all obligations in connection with each Permitted Acquisition, including, without limitation, Earn Out Obligationsordinary course of business;
(in) Indebtedness representing deferred compensation owed to officers(including obligations in respect of letters of credit for the benefit of) any Person providing worker's compensation, directorshealth, employees of the Borrower disability or other employee benefits or property, casualty or liability insurance to Company and its Subsidiaries, pursuant to reimbursement or indemnification obligations to such Person;
(jo) prepaid or deferred revenue, deferred tax liabilities, liabilities associated with customer prepayments and deposits and other similar accrued obligations (including accruals for payroll and other operating expenses accrued in the ordinary course of business) and customary obligations under employment agreements and deferred compensation, in each case, incurred in the ordinary course of business; and
(p) unsecured Indebtedness incurred by Company or any of its Subsidiaries incurred pursuant to paragraph 36 of Section 7(a) of the Credit Parties in SBA and Section 1102 of the CARES Act (the “CARES Act Indebtedness”), when taken together with the amount of Indebtedness outstanding under Section 6.1(j),in an aggregate outstanding amount not to exceed at any time $15,000,000; and
10,000,000 (kor such greater amount as the Requisite Purchasers agree in writing in their sole discretion), so long as (x) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of a Credit Party proceeds thereof are applied in a transaction permitted hereunder; provided that any such Indebtedness was not created in anticipation of or in connection accordance with the transaction or series CARES Act Permitted Purposes and (y) CARES Act Indebtedness is not incurred under any other clause of transactions pursuant to which such Person became a Subsidiary of a Credit Party; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (k) plus Indebtedness under clause (e) above shall not exceed at any time $15,000,000Section 6.1.
Appears in 1 contract
1Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, createCreate, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness, other thanexcept:
(a) the Obligations;
, (b) Indebtedness existing as of the Borrower to any other Credit Party;
Closing Date set forth in Disclosure Schedule (3.18), (c) Guarantees with respect by endorsement of instruments or items of payment for deposit to Indebtedness permitted under this Section 8.1;
the general account of such Credit Party, (d) for Guaranteed Indebtedness existing on incurred for the Closing Date and described in Schedule 8.1benefit of any Credit Party if the primary obligation is permitted by this Agreement, together with any Permitted Refinancing thereof;
(e) reserved, (f) Indebtedness outstanding under the Revolving Loan Agreement in an aggregate amount not exceeding the Maximum Priority Revolving Loan Debt, (g) the Permitted Xxxxxx-Xxxxxx Pension Plan Obligations, (h) Indebtedness with respect to (xi) Capital Leases Lease Obligations existing as the Closing Date set forth in Disclosure Schedule (3.18) and (yii) purchase money Indebtednessadditional Capital Lease Obligations and Purchase Money Obligations in an aggregate amount outstanding at any time not to exceed $250,000; provided, in the case of clause (x), that any such Indebtedness Capital Lease Obligations and Purchase Money Obligations under this clause (h) shall be secured only by the asset subject to such additional Capital Lease, and, in Lease Obligation or the case of clause (y), that any such Indebtedness shall be secured only by the acquired asset acquired in connection with the incurrence of such Indebtedness; provided further that Capital Lease Obligation or Purchase Money Obligation, as the sum of the aggregate principal amount of case may be, any Indebtedness under this clause insurance thereon and proceeds thereof, (e) plus assumed Indebtedness under clause (k) below shall not exceed at any time $15,000,000;
(fi) Indebtedness in respect of any Swap Agreement that is Hedging Obligations, provided, that, such Hedging Obligations are (or were) entered into by a Credit Party in the ordinary course of business to hedge for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or mitigate risks to which any property held or reasonably anticipated by such Credit Party Party, or changes in the value of securities issued by such Credit Party, and not for purposes of speculation or taking a “market view”, (j) Indebtedness in respect of letters of credit, bank guarantees and banker’s acceptances in each case incurred in the ordinary course of business, and reimbursement of obligations in respect of any of its Subsidiaries is exposed the foregoing, in all cases to the conduct of its business or extent permitted under the management of its liabilities Revolving Loan Documents, (it being acknowledged by the Borrower that a Swap Agreement entered into for speculative purposes or of a speculative nature is not a Swap Agreement entered into k) Indebtedness incurred in the ordinary course of business to hedge or mitigate risks);
under surety bonds, performance bonds, completion guarantees, appeal bonds, bid bonds and similar obligations and reimbursement and indemnification obligations in respect of any of the foregoing, (gl) Indebtedness arising in connection respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with the financing of insurance premiums respect to reimbursement-type obligations regarding workers compensation claims, (m) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business;
, (hn) Indebtedness of any Credit Party (other than Inactive Subsidiaries) owing to the extent constituting Indebtednessany other Credit Party (other than Inactive Subsidiaries); provided that in each case, all obligations in connection with each Permitted Acquisition, including, without limitation, Earn Out Obligations;
such Indebtedness shall be (i) Indebtedness representing deferred compensation evidenced by promissory notes and all such notes shall be subject to officers, directors, employees a first priority Lien pursuant to this Agreement and (ii) unsecured and subordinated in right of payment in full of the Borrower Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement with terms reasonably satisfactory to the Agent, (o) the Existing Letters of Credit, and its Subsidiaries;
(jp) any other unsecured Indebtedness of incurred after the Credit Parties Closing Date in an aggregate outstanding amount for all such Credit Parties combined not to exceed at any time exceeding $15,000,000; and
(k) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of a Credit Party in a transaction permitted hereunder; provided that any such Indebtedness was not created in anticipation of or in connection with the transaction or series of transactions pursuant to which such Person became a Subsidiary of a Credit Party; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (k) plus Indebtedness under clause (e) above shall not exceed at any time $15,000,000500,000.
Appears in 1 contract
Samples: Term Loan, Guarantee and Security Agreement (Williams Industrial Services Group Inc.)
1Indebtedness. No Credit Note Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, other than: except:
(a) the Obligations;
(b) Indebtedness of the Borrower any Guarantor Subsidiary to Company or to any other Credit PartyGuarantor Subsidiary, or of Company to any Guarantor Subsidiary; provided, (i) all such Indebtedness shall be evidenced by the Intercompany Note, and shall be subject to a First Priority Lien pursuant to the Pledge and Security Agreement, (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to the Payment in Full of all Obligations pursuant to the terms of the Intercompany Note, and (iii) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Guarantor Subsidiary to Company or to any of its Subsidiaries for whose benefit such payment is made;
(c) Guarantees with respect to Indebtedness permitted under this Section 8.1[Reserved];
(d) Indebtedness existing on incurred by Company or any of its Subsidiaries arising from agreements providing for customary indemnification or from customary guaranties or letters of credit, surety bonds or performance bonds securing the Closing Date and described performance of Company or any such Subsidiary pursuant to such agreements in Schedule 8.1connection with Permitted Acquisitions or permitted dispositions of any business, together with assets or Subsidiary of Company or any Permitted Refinancing thereofof its Subsidiaries;
(e) Indebtedness with respect that may be deemed to (x) Capital Leases and (y) purchase money Indebtedness; providedexist pursuant to any performance, surety, appeal or similar bonds or statutory obligations incurred in the case ordinary course of clause (x)business, that and guarantee obligations in respect of any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (e) plus assumed Indebtedness under clause (k) below shall not exceed at any time $15,000,000;
(f) Indebtedness in respect of any Swap Agreement that is entered into treasury, depositary, cash management and netting services, automatic clearinghouse arrangements, overdraft protections, employee credit card programs and similar arrangements or otherwise arising in connection with securities accounts and deposit accounts, in each case, in the ordinary course of business;
(g) guaranties in the ordinary course of business to hedge or mitigate risks to which any Credit Party or any of the obligations of suppliers, customers, franchisees and licensees of Company and its Subsidiaries is exposed in the conduct of its business or the management of its liabilities (it being acknowledged by the Borrower that a Swap Agreement entered into for speculative purposes or of a speculative nature is not a Swap Agreement entered into in the ordinary course of business to hedge or mitigate risks)Subsidiaries;
(gh) guaranties by Company of Indebtedness of a Guarantor Subsidiary or guaranties by a Subsidiary of Company of Indebtedness of Company or a Guarantor Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness that is being guaranteed is unsecured and/or subordinate to the Obligations (in payment or Lien priority), then such guaranties shall also be unsecured and/or subordinated to the Obligations to the same extent as such guaranteed Indebtedness;
(i) Indebtedness arising described in connection Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement, and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Purchasers than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(j) Indebtedness in an aggregate amount (taken together with the amount of any other Indebtedness secured by Liens pursuant to Section 6.2(o)) not to exceed at any time outstanding an aggregate principal amount equal to (A) $500,000 minus (B) the aggregate outstanding principal amount of all CARES Act Indebtedness (but in no event less than zero).
(k) obligations under Hedge Agreements which are not for speculative purposes;
(l) Indebtedness consisting of the financing of insurance premiums in the ordinary course of business;
(hm) to bankers' acceptances, bank guarantees, letters of credit, warehouse receipt or similar facilities, in each case incurred or issued, as applicable, in the extent constituting Indebtedness, all obligations in connection with each Permitted Acquisition, including, without limitation, Earn Out Obligationsordinary course of business;
(in) Indebtedness representing deferred compensation owed to officers(including obligations in respect of letters of credit for the benefit of) any Person providing worker's compensation, directorshealth, employees of the Borrower disability or other employee benefits or property, casualty or liability insurance to Company and its Subsidiaries, pursuant to reimbursement or indemnification obligations to such Person;
(jo) prepaid or deferred revenue, deferred tax liabilities, liabilities associated with customer prepayments and deposits and other similar accrued obligations (including accruals for payroll and other operating expenses accrued in the ordinary course of business) and customary obligations under employment agreements and deferred compensation, in each case, incurred in the ordinary course of business; and
(p) unsecured Indebtedness incurred by Company or any of its Subsidiaries incurred pursuant to paragraph 36 of Section 7(a) of the Credit Parties in SBA and Section 1102 of the CARES Act (the “CARES Act Indebtedness”), when taken together with the amount of Indebtedness outstanding under Section 6.1(j),in an aggregate outstanding amount not to exceed at any time $15,000,000; and
10,000,000 (kor such greater amount as the Requisite Purchasers agree in writing in their sole discretion), so long as (x) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of a Credit Party proceeds thereof are applied in a transaction permitted hereunder; provided that any such Indebtedness was not created in anticipation of or in connection accordance with the transaction or series CARES Act Permitted Purposes and (y) CARES Act Indebtedness is not incurred under any other clause of transactions pursuant to which such Person became a Subsidiary of a Credit Party; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (k) plus Indebtedness under clause (e) above shall not exceed at any time $15,000,000Section 6.1.
Appears in 1 contract
Samples: Note Purchase Agreement (Capstone Green Energy Corp)
1Indebtedness. No Credit Loan Party shall, nor shall it any Loan Party permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, at any time create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness, other thanexcept:
(a) Indebtedness under this Agreement and the Obligationsother Loan Documents;
(b) Indebtedness in respect of returned items, netting services, employee credit cards (and related credit card processing services), debit cards, stored value cards, purchase cards (including so- called “procurement cards” or “P-cards”), overdraft protections and automatic clearinghouse arrangements and other cash management and similar arrangements incurred in the Borrower to any other Credit Partyordinary course of business;
(c) Guarantees with respect to Indebtedness permitted under this Section 8.1Unsecured Indebtedness, in each case, arising from agreements of Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price, deferred purchase price, earn-out payments or similar obligations;
(d) Indebtedness existing on the Closing Date consisting of unpaid insurance premiums owing to insurance companies and described in Schedule 8.1, together with any Permitted Refinancing thereof;
(e) Indebtedness with respect to (x) Capital Leases and (y) purchase money Indebtedness; provided, in the case of clause (x), that any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (e) plus assumed Indebtedness under clause (k) below shall not exceed at any time $15,000,000;
(f) Indebtedness in respect of any Swap Agreement that is entered into in the ordinary course of business to hedge or mitigate risks to which any Credit Party or any of its Subsidiaries is exposed in the conduct of its business or the management of its liabilities (it being acknowledged by the Borrower that a Swap Agreement entered into for speculative purposes or of a speculative nature is not a Swap Agreement entered into in the ordinary course of business to hedge or mitigate risks);
(g) Indebtedness arising insurance brokers incurred in connection with the financing of insurance premiums in the ordinary course of business;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(f) Indebtedness arising under guaranties made in the ordinary course of business of obligations of any Loan Party, which obligations are otherwise permitted hereunder; provided that if such obligation is subordinated to the Obligations, such guaranty shall be subordinated to the same extent;
(g) [Reserved];
(h) existing Indebtedness as set forth on Schedule 7.1(h) (including any extensions or renewals thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to the extent constituting Indebtednessa reasonable premium or other reasonable amount paid, all obligations and fees and expenses reasonably incurred, in connection with each Permitted Acquisitionsuch refinancing and (ii) the terms relating to principal amount, includingamortization, without limitationmaturity, Earn Out Obligationscollateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(i) Indebtedness incurred (A) with respect to Purchase Money Security Interests, Synthetic Lease Obligations and Capital Leases for fixed or capital assets set forth on Schedule 7.1(i), and (B) Indebtedness incurred with respect to Purchase Money Security Interests, Synthetic Lease Obligations and Capital Leases for fixed or capital assets not to exceed in the aggregate amount at any time the greater of (i) $10,000,000 and (ii) 15% of EBITDA of the Borrower and the Restricted Subsidiaries for the Test Period;
(j) Unsecured Indebtedness solely among Loan Parties;
(k) Indebtedness (contingent or otherwise) of any Loan Party arising under (i) any Secured Hedge or (ii) Indebtedness under any Secured Bank Product entered into in the ordinary course of business; provided, however, that (i) no Loan Party shall enter into or incur any Secured Hedge that constitutes a Swap Obligation if at the time it enters into or incurs such Swap Obligation it does not constitute an “eligible contract participant” as defined in the Commodity Exchange Act, and (ii) the Loan Parties and their Subsidiaries shall enter into a Secured Hedge only for hedging (rather than speculative) purposes;
(l) Guarantees and other Contingent Obligations permitted by Section 7.4;
(m) Indebtedness of any Person (other than revolving credit facilities or commitments therefor) that becomes a Restricted Subsidiary that is assumed in connection with any Permitted Acquisition, in an aggregate amount at any time not to exceed 100% of EBITDA of the Borrower and the Restricted Subsidiaries for the Test Period; provided that (i) such Indebtedness was existing at the time of closing such Permitted Acquisition and not incurred in contemplation of such Permitted Acquisition, (ii) no portion of such Indebtedness matures prior to the latest maturity date of any of the Loans, (iii) immediately before and immediately after giving effect to the incurrence or assumption thereof and any related transactions, no Default or Event of Default has occurred and is continuing and (iv) immediately after giving effect to the incurrence or assumption thereof and any related transactions, the Borrower shall be in compliance on a pro forma basis with the financial covenant set forth in Article VIII for the Test Period;
(n) Indebtedness with respect to cash management and similar arrangements in the ordinary course of business;
(o) Indebtedness representing deferred compensation to officers, directors, officers or employees of the Borrower and its SubsidiariesRestricted Subsidiaries incurred in the ordinary course of business;
(jp) unsecured Indebtedness in respect of Permitted Stimulus Indebtedness;
(q) [Reserved];
(r) other Indebtedness of the Credit Parties Borrower in an aggregate amount at any time not to exceed the greater of (i) $50,000,000 and (ii) 50% of EBITDA of the Borrower and the Restricted Subsidiaries for the Test Period; provided that no more than $10,000,000 of Indebtedness incurred pursuant to this clause (r) may be secured Indebtedness (and any such secured Indebtedness shall be subordinated in right of payment and remedies to the Obligations on terms reasonably acceptable to the Administrative Agent);
(s) Indebtedness incurred by Foreign Restricted Subsidiaries (other than GTT and its Subsidiaries, One Communications and its Subsidiaries, and CAH Holdco and its Subsidiaries) in an aggregate amount at any time not to exceed the greater of (i) $15,000,00010,000,000 and (ii) 10% of EBITDA of the Borrower and the Restricted Subsidiaries for the Test Period;
(t) the RTFC Indebtedness and any refinancing Indebtedness therefor refinanced not to exceed an aggregate principal amount of $60,000,000 at any time; and
(ku) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of a Credit Party in a transaction permitted hereunder; provided that any such Indebtedness was not created in anticipation of or in connection with the transaction or series of transactions pursuant to which such Person became a Subsidiary of a Credit Party; provided further that the sum of (i) incurred by GTT and its Subsidiaries, the aggregate principal amount of any Indebtedness under this clause (k) plus Indebtedness under clause (e) above which shall not exceed at any time $15,000,000.an amount equal to (w) EBITDA of GTT and its Subsidiaries on a consolidated basis for the then most recently completed four (4) fiscal quarters multiplied by (x) 1.5; and (ii) incurred by One Communications and its Subsidiaries, the aggregate amount of which shall not exceed at any time an amount equal to (y) EBITDA of One Communications and its Subsidiaries on a consolidated basis for the then most recently completed four (4) fiscal quarters multiplied by (z) (i) 1.5 or, (ii) to the extent One Communications or its Affiliates use all or any portion of such Indebtedness to redeem or repurchase, through a tender offer or otherwise, all or any portion of the outstanding shares of capital stock of One Communications not indirectly owned by Borrower, 2.0.
Appears in 1 contract
Samples: Joinder, Consent, First Amendment and Reaffirmation Agreement (ATN International, Inc.)
1Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, createCreate, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness, other thanexcept:
(a) the Obligations;
, (b) Indebtedness existing as of the Borrower to any other Credit Party;
Closing Date set forth in Disclosure Schedule (3.18), (c) Guarantees with respect by endorsement of instruments or items of payment for deposit to Indebtedness permitted under this Section 8.1;
the general account of such Credit Party, (d) for Guaranteed Indebtedness existing on incurred for the Closing Date and described in Schedule 8.1benefit of any Credit Party if the primary obligation is permitted by this Agreement, together with any Permitted Refinancing thereof;
(e) reserved, (f) Indebtedness outstanding under the Revolving Loan Agreement in an aggregate amount not exceeding the Maximum Priority Revolving Loan Debt, (g) the Permitted Xxxxxx-Xxxxxx Pension Plan Obligations, (h) Indebtedness with respect to (xi) Capital Leases Lease Obligations existing as the Closing Date set forth in Disclosure Schedule (3.18) and (yii) purchase money Indebtednessadditional Capital Lease Obligations and Purchase Money Obligations in an aggregate amount outstanding at any time not to exceed $250,000; provided, in the case of clause (x), that any such Indebtedness Capital Lease Obligations and Purchase Money Obligations under this clause (h) shall be secured only by the asset subject to such additional Capital Lease, and, in Lease Obligation or the case of clause (y), that any such Indebtedness shall be secured only by the acquired asset acquired in connection with the incurrence of such Indebtedness; provided further that Capital Lease Obligation or Purchase Money Obligation, as the sum of the aggregate principal amount of case may be, any Indebtedness under this clause insurance thereon and proceeds thereof, (e) plus assumed Indebtedness under clause (k) below shall not exceed at any time $15,000,000;
(fi) Indebtedness in respect of any Swap Agreement that is Hedging Obligations, provided, that, such Hedging Obligations are (or were) entered into by a Credit Party in the ordinary course of business to hedge for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or mitigate risks to which any property held or reasonably anticipated by such Credit Party Party, or changes in the value of securities issued by such Credit Party, and not for purposes of speculation or taking a “market view”, (j) Indebtedness in respect of letters of credit, bank guarantees and banker’s acceptances in each case incurred in the ordinary course of business, and reimbursement of obligations in respect of any of its Subsidiaries is exposed the foregoing, in all cases to the conduct of its business or extent permitted under the management of its liabilities Revolving Loan Documents, (it being acknowledged by the Borrower that a Swap Agreement entered into for speculative purposes or of a speculative nature is not a Swap Agreement entered into k) Indebtedness incurred in the ordinary course of business to hedge or mitigate risks);
under surety bonds, performance bonds, completion guarantees, appeal bonds, bid bonds and similar obligations and reimbursement and indemnification obligations in respect of any of the foregoing, (gl) Indebtedness arising in connection respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with the financing of insurance premiums respect to reimbursement-type obligations regarding workers compensation claims, (m) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business;
, (hn) Indebtedness of any Credit Party (other than Inactive Subsidiaries) owing to the extent constituting Indebtednessany other Credit Party (other than Inactive Subsidiaries); provided that in each case, all obligations in connection with each Permitted Acquisition, including, without limitation, Earn Out Obligations;
such Indebtedness shall be (i) Indebtedness representing deferred compensation evidenced by promissory notes and all such notes shall be subject to officers, directors, employees a first priority Lien pursuant to this Agreement and (ii) unsecured and subordinated in right of payment in full of the Borrower and its Subsidiaries;
(j) unsecured Indebtedness Obligations pursuant to the terms of the Credit Parties applicable promissory notes or an intercompany subordination agreement with terms reasonably satisfactory to the Agent, (o) the Existing Letters of Credit, (p) Subordinated Debt under the Subordinated Loan Documents in an original aggregate principal amount not to exceed at $1,250,000, plus any time $15,000,000; and
fees, costs or expenses incurred or payable in connection therewith, plus any interest accrued thereon in accordance with the terms of the Subordinated Loan Documents, so long as (ki) such Indebtedness of is subject to a Person existing at the time such Person becomes a Subsidiary of a Subordination Agreement which remains in full force and effect and (ii) no Credit Party makes any payment to the Subordinated Creditors or otherwise in a transaction permitted hereunder; provided that any respect of such Indebtedness was not created Indebtedness, except for payments made in anticipation of or in connection full compliance with the transaction or series of transactions pursuant Subordination Agreement applicable to which such Person became a Subsidiary of a Subordinated Debt, and (q) any other unsecured Indebtedness incurred after the Closing Date in an aggregate outstanding amount for all such Credit Party; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (k) plus Indebtedness under clause (e) above shall Parties combined not exceed at any time exceeding $15,000,000.500,000.
Appears in 1 contract
Samples: Term Loan, Guarantee and Security Agreement (Williams Industrial Services Group Inc.)
