Borrowing. Borrower will not: (a) create, incur, assume or suffer to exist any liability for accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants; (b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except (i) liabilities created by or pursuant to this Agreement; (ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness); (iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements; (iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50). (c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 3 contracts
Samples: Loan and Security Agreement (Phymatrix Corp), Loan and Security Agreement (Phymatrix Corp), Loan and Security Agreement (Phymatrix Corp)
Borrowing. Borrower will not:
No Company shall create, incur or have outstanding any Indebtedness of any kind; provided, that this Section shall not apply to (a) createthe Loans, incurthe Letters of Credit or any other Indebtedness under the Loan Documents; (b) any Indebtedness incurred by Borrowers or any Credit Party in respect of Capital Leases and any Indebtedness incurred to finance the acquisition, assume construction or suffer improvement of any fixed or capital assets after the Closing Date that is secured by purchase money mortgage or purchase money security interests, so long as the combined aggregate principal amount of all such Indebtedness does not exceed $500,000 at any time outstanding; (c) the Indebtedness existing on the Closing Date as set forth in Schedule 5.8 hereto and any refinancings, refundings, renewals or extensions thereof, which do not increase the principal amount or shorten the maturity thereof; (d) loans to exist any liability a Company from a Company so long as (I) each such Company borrowing such money is a Borrower or a Credit Party, (II) each such loan is evidenced by the Master Promissory Note, which such promissory note has been pledged to Agent, for accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from benefit of the due dateLenders, in each case a manner reasonably satisfactory to Agent, and (III) the Master Promissory Note is Subordinated; (e) Indebtedness under any Hedge Agreement entered into by Borrowers in connection with the Debt and not for speculative purposes, (f) guarantee obligations incurred in the ordinary course of business by a Company of Indebtedness of a Credit Party, (g) Indebtedness in respect of netting services, overdraft protections and paid within such time periodotherwise in connection with deposit accounts, unless the same are being contested in good faith and by appropriate and lawful proceedings(h) Indebtedness constituting Investments permitted pursuant to Section 5.11 hereof or Restricted Payments permitted pursuant to Section 5.20 hereof, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created Indebtedness evidenced by or pursuant to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (Seller Subordinated Debt Documents; provided that there is no increase in the amount of such Indebtedness or other significant change in remains at all times subject to the terms of the Seller Subordination Agreement; (j) Indebtedness evidenced by the Senior Subordinated Debt Documents; provided that such Indebtedness);
Indebtedness remains at all times subject to the terms of the Senior Subordination Agreement; (iiik) Indebtedness of any Credit Party arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn by such Credit Party in the ordinary course of business against insufficient funds, so long as such Indebtedness is repaid within five (A5) any direct Business Days; (l) endorsements of items for deposit or indirect subsidiary collection of PMC to another subsidiary commercial paper received in the ordinary course of PMC, business; (m) Indebtedness in respect of deposits or advances received in the ordinary course of business; and (Bn) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) other unsecured Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisitionaggregate amount not to exceed $50,000, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)outstanding.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 3 contracts
Samples: Credit and Security Agreement, Credit and Security Agreement (Regional Brands Inc.), Credit and Security Agreement (Regional Brands Inc.)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans or other credit granted to, assume or suffer to exist Capitalized Lease Obligations entered into by, any liability Company for accounts payable to trade creditors the purchase or lease of fixed assets (and current operating expenses refinancings of such loans, credit or Capitalized Lease Obligations), which loans, credit and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Twenty Million Dollars (other than for borrowed money$20,000,000) which are aged more than one hundred eighty at any time outstanding;
(180c) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateFirst Amendment Effective Date, in addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not increase after the Closing Date);
(d) loans to, and guaranties of Indebtedness of, a Company from a Company so long as each case incurred such Company is a Credit Party;
(e) loans to, and guaranties of Indebtedness of, a Foreign Subsidiary by a Credit Party in an aggregate amount not to exceed Fifteen Million Dollars ($15,000,000) at any time outstanding;
(f) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bg) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except[Intentionally Omitted]; and
(ih) liabilities created by or pursuant other unsecured Indebtedness, in addition to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiarylisted above, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
an aggregate principal amount for all Companies not to exceed Twenty Million Dollars (iv$20,000,000) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)outstanding.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 3 contracts
Samples: Credit and Security Agreement (Sleep Number Corp), Credit and Security Agreement (Sleep Number Corp), Credit and Security Agreement (Sleep Number Corp)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.08 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), assume which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or suffer to exist leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Fifty Million Dollars ($50,000,000) at any liability for accounts payable to trade creditors time outstanding;
(c) the Indebtedness existing on the Effective Date as set forth on Schedule 5.08 hereto (and current operating expenses any extension, renewal, replacement or refinancing thereof so long as the principal amount thereof shall not be increased (other than for borrowed moneyan increase in the principal amount of such Indebtedness due to the payment of premiums, fees and costs associated with such extension, renewal, replacement or refinancing) which are aged more than one hundred eighty after the Effective Date);
(180d) days from the billing date or more than sixty Indebtedness of a Domestic Credit Party to any other Domestic Credit Party;
(60e) days from the due dateIndebtedness under any Hedge Agreement, in each case incurred so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bf) createPermitted Foreign Subsidiary Loans and Investments;
(g) secured Indebtedness of a Foreign Subsidiary (other than pursuant to this Agreement) in an aggregate principal amount for all Foreign Subsidiaries not to exceed Ten Million Dollars ($10,000,000) at any time outstanding;
(h) Permitted Unsecured Notes, incur, assume or suffer to exist any liability so long as the net cash proceeds received by the Parent from the issuance of such Indebtedness is used for Borrowed Money ("Indebtedness") exceptthe substantially concurrent prepayment of Revolving Loans;
(i) liabilities created by or pursuant Permitted Convertible Notes, in an aggregate principal amount for all Companies not to this Agreement;exceed Three Hundred Million Dollars ($300,000,000) at any time outstanding; and
(iij) existing other unsecured Indebtedness on the date (including, without limitation, unsecured Subordinated Indebtedness) of this Agreementa Company, as set forth on SCHEDULE 7.1, including any extensions or renewals of in addition to the Indebtedness (provided that there is no increase in listed above, so long as the aggregate principal amount of such Indebtedness or other significant change for all Companies incurred during such time as the Parent is not in compliance with the terms of such Indebtedness);
Adjusted Covenant Requirement does not exceed Twenty Five Million Dollars (iii$25,000,000) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)outstanding.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 2 contracts
Samples: Credit Agreement (PTC Inc.), Credit Agreement (PTC Inc.)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit, assume the IDRB Letter of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to or suffer to exist Capitalized Lease Obligations entered into by any liability Company for accounts payable to trade creditors the purchase or lease of fixed assets (and current operating expenses refinancings of such loans or Capitalized Lease Obligations), which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Five Hundred Thousand Dollars (other than for borrowed money$500,000) which are aged more than one hundred eighty at any time outstanding;
(180c) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not increase after the Closing Date);
(d) loans to, and guaranties of Indebtedness of, a Company from a Company so long as each case incurred such Company is Core Molding or a Domestic Guarantor of Payment;
(e) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bf) createPermitted Foreign Subsidiary Loans and Investments, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Default or Event of Default has occurred and is continuing under this Agreement shall then exist or would result therefrom; and
(g) other unsecured Indebtedness, in addition to the Indebtedness listed above, in an aggregate principal amount for all Companies not to exceed Five Hundred Thousand Dollars ($500,000) at the any time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Defaultoutstanding.
Appears in 2 contracts
Samples: Credit Agreement (Core Molding Technologies Inc), Credit Agreement (Core Molding Technologies Inc)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.08 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), assume which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or suffer to exist leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Forty Million Dollars ($40,000,000) at any liability for accounts payable to trade creditors time outstanding;
(c) the Indebtedness existing on the Effective Date as set forth on Schedule 5.08 hereto (and current operating expenses any extension, renewal, replacement or refinancing thereof so long as the principal amount thereof shall not be increased (other than for borrowed moneyan increase in the principal amount of such Indebtedness due to the payment of premiums, fees and costs associated with such extension, renewal, replacement or refinancing) which are aged more than one hundred eighty after the Effective Date);
(180d) days from the billing date or more than sixty Indebtedness of a Credit Party to any other Credit Party;
(60e) days from the due dateIndebtedness under any Hedge Agreement, in each case incurred so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bf) createPermitted Foreign Subsidiary Loans and Investments;
(g) secured Indebtedness of a Foreign Subsidiary in an aggregate principal amount for all Foreign Subsidiaries not to exceed Ten Million Dollars ($10,000,000) at any time outstanding;
(h) unsecured Subordinated Indebtedness, incurwith terms reasonably acceptable to the Administrative Agent and the Required Lenders, assume or suffer in an aggregate principal amount for all Companies not to exist exceed Two Hundred Fifty Million Dollars ($250,000,000) at any liability for Borrowed Money ("Indebtedness") excepttime outstanding; and
(i) liabilities created by or pursuant other unsecured Indebtedness of a Company, in addition to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in listed above, so long as the aggregate principal amount of such Indebtedness or other significant change for all Companies incurred during such time as the Borrower is not in compliance with the terms of such Indebtedness);
Adjusted Covenant Requirement does not exceed Fifty Million Dollars (iii$50,000,000) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)outstanding.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 2 contracts
Samples: Exhibit Agreement (PTC Inc.), Credit Agreement (Parametric Technology Corp)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that, this Section 5.8 shall not apply to the following, to the extent the following are not otherwise prohibited by the Senior Notes Documents:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), assume which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or suffer leased, so long as (i) the Borrower is in pro forma compliance with Section 5.7 hereof, both before and after giving effect to such loans and Capitalized Lease Obligations, (ii) no Default or Event of Default shall exist at the time any liability such loan or Capitalized Lease Obligation is incurred, or immediately thereafter shall begin to exist, (iii) the aggregate principal amount of all such loans and Capitalized Lease Obligations for accounts payable all Companies shall not exceed Twenty Million Dollars ($20,000,000) at any time outstanding;
(c) the Indebtedness existing on the Closing Date, in addition to trade creditors the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and current operating expenses any extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not increase (other than for borrowed moneyby the addition of any capitalized interest and refinancing expenses) which after the Closing Date and such terms and conditions thereof are aged more not less favorable to the obligor thereon or to the Lenders than one hundred eighty the Indebtedness being refinanced), and any extension, renewal or refinancing of any other Indebtedness permitted under this Section 5.8, but only to the extent that the principal amount thereof does not increase (180other than by the addition of any capitalized interest and refinancing expenses), such Indebtedness has a maturity date later than or equal to the final maturity and a longer or equal weighted average life than the Indebtedness being renewed or refinanced, and such terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced;
(d) days from loans to, and guaranties of Indebtedness of, a Credit Party to a Credit Party; provided that (i) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien in favor of Agent and (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to the billing date payment in full of the Obligations pursuant to the terms of the applicable promissory notes or more than sixty an intercompany subordination agreement that is in any case, satisfactory to Agent;
(60e) days from the due dateIndebtedness under any Hedge Agreement, in each case incurred so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bf) createIndebtedness arising in the ordinary course of business of the Companies in connection with Bank Products, incurprovided that as to corporate credit card programs of the Companies, assume or suffer such Indebtedness shall not exceed an aggregate amount of Seven Million, Five Hundred Thousand Dollars ($7,500,000);
(g) Permitted Foreign Subsidiary Loans, Guaranties and Investments;
(h) Indebtedness incurred in connection with the Senior Notes, in an aggregate amount not to exist any liability for Borrowed Money exceed Three Hundred Million Dollars ("Indebtedness") except$300,000,000);
(i) liabilities created by Indebtedness with respect to surety, appeal, indemnity, performance or pursuant other similar bonds arising in the ordinary course of business and upon terms typical to the industry; provided that this Agreementsubpart (i) shall not include guaranties for borrowed money;
(j) Indebtedness incurred in connection with a financing arrangement of accounts receivable of a Foreign Subsidiary, secured solely by the applicable specific accounts receivable of such Foreign Subsidiary, in an aggregate amount not to exceed, for all Companies, Thirty Million Dollars ($30,000,000), subject to such terms, conditions and documentation acceptable to the Agent in its reasonable credit judgment;
(k) Indebtedness of Gichner to Raytheon consisting of the aggregate amount of Raytheon Progress Payments actually received by Gichner from Raytheon that have not been liquidated pursuant to the applicable Raytheon Purchase Order; and
(l) other Indebtedness, in addition to the Indebtedness listed above, in an aggregate principal amount for all Companies not to exceed Twenty-Five Million Dollars ($25,000,000), with respect to (i) Indebtedness incurred in connection with the issuance of Additional Notes under the Indenture Documents, (ii) existing unsecured Subordinated Indebtedness created pursuant to documentation in form and substance reasonably satisfactory to the Agent, and on terms reasonably satisfactory to the Agent, and (iii) other unsecured Indebtedness created pursuant to documentation in form and substance reasonably satisfactory to the Agent, and on terms reasonably satisfactory to the Agent; so long as, in each case, as of the date of this Agreementsuch additional Indebtedness is incurred, as set forth on SCHEDULE 7.1(A) the Borrower is in pro forma compliance with Section 5.7 hereof, including any extensions or renewals of both before and after giving effect to the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms incurrence of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement no Default or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred shall then exist or immediately thereafter shall begin to exist. Notwithstanding anything in this Section 5.8 to the contrary, the Borrower shall not, without the prior written consent of the Agent and is continuing under this Agreement at the time Required Lenders, (a) incur Indebtedness in reliance upon or pursuant to Section 4.08(c)(15) of such creation and shall the Senior Notes Indenture or (b) classify or reclassify any item of Indebtedness to be prohibited after Indebtedness permitted or otherwise covered by Section 4.08(c)(15) of the occurrence and during the continuance of any Event of DefaultSenior Notes Indenture.
Appears in 2 contracts
Samples: Credit and Security Agreement, Credit and Security Agreement (Kratos Defense & Security Solutions, Inc.)
Borrowing. Borrower will not:
(a) create, incur, assume or suffer to exist any liability for accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created Each Borrowing of a Loan (each, a “Borrowing”) shall be made upon the Borrowers’ irrevocable written notice delivered to Agent substantially in the form of a Notice of Borrowing or in a writing in any other form acceptable to Agent, which notice must be received by Agent prior to 12:00 p.m. (New York time) on the date that is at least seven (7) Business Day prior to the requested Borrowing date (or pursuant to this Agreement;such shorter time period as agreed by the Required Lenders).
(ii) existing Indebtedness on the date Such Notice of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness Borrowing shall specify:
(provided that there is no increase in A) the amount of such Indebtedness or other significant change the Borrowing, which shall be:
(1) the initial 2nd Tranche DDTL, in the terms aggregate amount of up to $61,000,000 (the “Initial 2nd Tranche Draw”); provided that, up to $6,000,000 of such IndebtednessInitial 2nd Tranche Draw may be, with the consent of Blockchain, drawn separately in a Borrowing in advance of the remainder of such $61,000,000 maximum amount (such $6,000,000 amount the “Discretionary 2nd Tranche Draw”);
(2) with respect to the subsequent 2nd Tranche DDTL, in the aggregate amount of up to $28,000,000 (or such lesser remaining amount of the 2nd Tranche DDTL Commitments as shall remain after giving effect to any DDTL Reduction) (the “Subsequent 2nd Tranche Draw”); provided that, such amount shall include any Net Funded Amount required to pay the Origination Fee to the extent not otherwise paid in advance of or concurrently with such Borrowing; and
(3) with respect to any 3rd Tranche DDTL or 4th Tranche DDTL, in an aggregate amount that is an integral multiple of $5,000,000 but in an event not less than $5,000,000 (or if less, the remaining 3rd Tranche DDTL Commitment) and not greater than $50,000,000;
(B) the requested Borrowing date, which shall be a Business Day; and
(C) the wire instructions for the account or accounts of Borrowers to which funds should be sent.
(iii) Indebtedness Notwithstanding anything herein, (i) no more than an aggregate amount of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC$200,000,000 3rd Tranche DDTLs and 4th Tranche DDTLs may be drawn in the fiscal quarter in which the SPAC Transaction occurs, and (Bii) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser no more than an aggregate amount of $3,000,000.00 or two percent (2%) 100,000,000 3rd Tranche DDTLs and 4th Tranche DDTLs may be drawn in any subsequent fiscal quarter; provided that, for the avoidance of PMC's tangible assets on a consolidated basisdoubt, (B) that is incurred drawing 2nd Tranche DDTLs in connection with interest rate protection agreements, (C) that is incurred as a result of any fiscal quarter shall not impair the assumption of liabilities in an acquisition, and (D) that is expressly subordinated ability to thereafter borrow up to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate amount of all 3rd Tranche DDTLs and 4th Tranche DDTLs specified herein during such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)same quarter.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 2 contracts
Samples: Credit Agreement (Adit EdTech Acquisition Corp.), Credit Agreement (Adit EdTech Acquisition Corp.)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to, assume or suffer to exist Capitalized Lease Obligations entered into by, any liability Company for accounts payable to trade creditors the purchase or lease of fixed assets (and current operating expenses refinancings of such loans or Capitalized Lease Obligations), which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Five Million Dollars (other than for borrowed money$5,000,000) which are aged more than one hundred eighty at any time outstanding;
(180c) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not increase after the Closing Date);
(d) loans to, and guaranties of Indebtedness of, a Company from a Company so long as each case incurred such Company is a Credit Party;
(e) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(f) loans to a Company pursuant to state or other Governmental Authority industrial revenue bond financing, so long as the aggregate principal amount of all such financing for all Companies, when combined with Indebtedness permitted under subsection (b) createhereof, incur, assume or suffer to exist shall not exceed Twenty Million Dollars ($20,000,000) at any liability for Borrowed Money time outstanding;
("Indebtedness"g) exceptPermitted Mexican Subsidiary Loans and Investments;
(h) Indebtedness resulting from the financing of insurance premiums (with an insurance premium financing company) in the ordinary course of business;
(i) liabilities created Indebtedness of a Company that was initially indebtedness of a target entity that was acquired by one or more Credit Parties pursuant to this Agreement;
an Acquisition permitted pursuant to Section 5.13 hereof, so long as (i) such Indebtedness was not incurred in anticipation of such Acquisition, and (ii) existing such Indebtedness on the date of this Agreementis unsecured except as expressly permitted pursuant to Section 5.9(viii) hereof; and
(j) other unsecured Indebtedness, as set forth on SCHEDULE 7.1, including any extensions or renewals of in addition to the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiarylisted above, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
an aggregate principal amount for all Companies not to exceed Two Hundred Fifty Thousand Dollars (iv$250,000) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)outstanding.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 2 contracts
Samples: Credit and Security Agreement (Shiloh Industries Inc), Credit and Security Agreement (Shiloh Industries Inc)
Borrowing. Borrower will not:
(a) createCreate, incur, assume or suffer to exist any liability for accounts payable Indebtedness, or permit any Restricted Subsidiary so to trade creditors do, except (i) Indebtedness under the Notes and current operating expenses the other Loan Documents, and Indebtedness under the Notes and the other Loan Documents (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due date, in each case incurred as defined in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this Other Credit Agreement;
); (ii) Indebtedness (including Contingent Obligations) of the Borrower and the Restricted Subsidiaries existing Indebtedness on the date of this Agreement, hereof as set forth on SCHEDULE 7.1, including any extensions or renewals in Part A of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
Schedule 8.1; (iii) Indebtedness (including Contingent Obligations) of EZ and its subsidiaries which, upon the consummation of the EZ Acquisition, shall have been assumed by the Borrower and/or the Restricted Subsidiaries as set forth in Part B of Schedule 8.1, (iv) unsecured Indebtedness in an aggregate outstanding principal amount not in excess of $1,500,000 in connection with the acquisition of Property by the Borrower, provided that immediately before and after giving effect thereto all representations and warranties contained in the Loan Documents shall be true and correct and no Default or Event of Default shall exist; (v) unsecured Indebtedness of the Borrower in an aggregate amount not in excess of $7,500,000 in connection with the issuance of standby letters of credit for the account of the Borrower; (vi) Indebtedness of the Borrower evidenced by (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basisARS Subordinated Indenture Notes, (B) that is incurred the 1996 Exchange Subordinated Indenture Notes and the 1997 Exchange Subordinated Indenture Notes, provided that, in connection with interest rate protection agreementsthe case of this clause (B), immediately before and after giving effect to the incurrence thereof, no Default or Event of Default shall exist, and (C) that is incurred as a result after the consummation of the assumption EZ Acquisition, the EZ Indenture Notes; (vii) Indebtedness of liabilities in an acquisitionthe Restricted Subsidiaries evidenced by the ARS Subordinated Indenture Subsidiary Guaranty and, after the consummation of the EZ Acquisition, the EZ Indenture Subsidiary Guaranty; (viii) Permitted Subordinated Debt; (ix) refinancings of any Indebtedness permitted under clause (ii), (iii), (iv) or (v) above with Indebtedness permitted under clause (i) or (viii) above; and (Dx) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance refinancings of any Event of DefaultIndebtedness permitted under clause (vi), (vii) or (viii) above with other Indebtedness permitted under clause (viii) above.
Appears in 2 contracts
Samples: Credit Agreement (American Radio Systems Corp /Ma/), Credit Agreement (American Radio Systems Corp /Ma/)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to, assume or suffer to exist Capitalized Lease Obligations or Synthetic Leases entered into by, any liability Company for accounts payable to trade creditors the purchase or lease of fixed or capital assets (and current operating expenses refinancings of such Synthetic Leases, loans or Capitalized Lease Obligations), which loans, Capitalized Lease Obligations and Synthetic Leases shall only be secured by the fixed or capital assets being purchased or leased, so long as (other than i) the aggregate principal amount of all such loans, Capitalized Lease Obligations and Synthetic Leases for borrowed moneyall Companies shall not exceed Thirty-Five Million Dollars ($35,000,000) which are aged more than one hundred eighty at any time outstanding (180) days from the billing date or more than sixty (60) days from the due dateas calculated using Capitalized Lease Obligations in lieu of principal amount, in the case of any Capital Leases, and using the present value, based on the implicit interest rate, in lieu of principal amount, in the case of any Synthetic Lease), and (ii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets;
(c) the Indebtedness existing on the Closing Date, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not increase after the Closing Date); provided that, if the similar schedule delivered on the Interim Closing Date reflected an aggregate amount of Indebtedness in excess of the Indebtedness reflected on Schedule 5.8 hereto as of the Closing Date, then any such excess shall reduce the amount of Indebtedness permitted to be incurred by the Companies pursuant to subsection (h) hereof;
(d) loans to, and guaranties of Indebtedness of, a Company from a Company so long as each case incurred such Company is a Credit Party;
(e) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bf) createPermitted Foreign Subsidiary Loans and Investments;
(g) unsecured Indebtedness of Gibraltar in connection with the notes (including any replacement or exchange notes) issued pursuant to the Subordinated Indenture, incurso long as (i) all of such Indebtedness shall be Subordinated at all times, assume and (ii) the aggregate principal amount of such Indebtedness shall not exceed Three Hundred Fifty-Four Million Dollars ($354,000,000) at any time outstanding;
(h) other unsecured Indebtedness, in addition to the Indebtedness listed above (but subject to the proviso in subsection (c) above), in an aggregate principal amount for all Companies not to exceed Seventy-Five Million Dollars ($75,000,000) at any time outstanding, so long as, at the time of any incurrence thereof, and after giving effect thereto, (i) Borrowers shall be in compliance with the financial covenants set forth in Section 5.7 hereof both immediately before and after giving pro forma effect to the incurrence of such Indebtedness, (ii) such Indebtedness shall not constitute “Designated Senior Indebtedness” or suffer to exist any liability for Borrowed Money “Guarantor Designated Senior Indebtedness” under the Subordinated Indenture, and ("Indebtedness"iii) exceptno Default or Event of Default shall have occurred and be continuing or would result therefrom; or
(i) liabilities created by other unsecured Subordinated Indebtedness, in addition to the Indebtedness listed above, so long as (i) no Default or pursuant to this Agreement;
Event of Default shall then exist or immediately after incurring any of such Indebtedness will exist, (ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount all of such Indebtedness or other significant change shall be Subordinated at all times, (iii) Borrowers shall be in compliance with the terms financial covenants set forth in Section 5.7 hereof both immediately before and after giving pro forma effect to the incurrence of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described are acceptable to Agent and the Required Lenders in this subparagraph shall not at any time exceed $25,000,000.00their discretion; PROVIDEDprovided that, HOWEVERif such Subordinated Indebtedness is incurred, that so long as PMC's cash balance is and continues owed to be a seller, in excess of the Overall Maximum Loan Amountconnection with an Acquisition made pursuant to Section 5.13 hereof, the $25,000,000.00 limit may be increased as follows: for each one dollar only subpart ($1.00ii) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted apply with respect to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of DefaultSubordinated Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Gibraltar Industries, Inc.), Credit Agreement (Gibraltar Industries, Inc.)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided, that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), assume which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or suffer to exist any liability for accounts payable to trade creditors and current operating expenses leased ;
(other than for borrowed moneyc) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in each case addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not increase after the Closing Date);
(d) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(be) createIndebtedness incurred by Foreign Subsidiaries in an aggregate amount not to exceed, incurfor all such Indebtedness of all Foreign Subsidiaries, assume the greater of (i) seven and one-half percent (7.5%) of Consolidated total assets of Borrower, or suffer (ii) Twenty-Five Million Dollars ($25,000,000) at any time outstanding;
(f) any loans from a Company to exist a Company permitted under Section 5.11 hereof;
(g) Indebtedness of a Foreign Subsidiary under an accounts receivable facility whereby no portion of the Indebtedness or any liability for Borrowed Money other obligation ("Indebtedness"contingent or otherwise) exceptunder such facility is guaranteed by any other Company (subject to the proviso in subsection (e) hereof) and no Company (other than such Foreign Subsidiary) provides, either directly or indirectly, any credit support of any kind (other than a guaranty permitted under subsection (e) hereof) in connection with such facility;
(h) Subordinated Indebtedness with terms and documentation in form and substance acceptable to Agent;
(i) liabilities created by or pursuant loans to this AgreementPercepta and its Subsidiaries in an aggregate amount at any time outstanding of up to ten percent (10%) of revenues of Percepta and its Subsidiaries for the most recently completed four fiscal quarters;
(iij) existing Indebtedness on the date loans to a joint venture (in which a Company holds an equity interest) in an aggregate amount at any time outstanding of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals up to ten percent (10%) of the Indebtedness (provided that there is no increase in the amount revenues of such Indebtedness or other significant change in joint venture for the terms of such Indebtedness)most recently completed four fiscal quarters;
(iiik) Indebtedness of a Company that has been acquired by the Companies pursuant to Section 5.13 hereof, which Indebtedness (Ai) any direct or indirect subsidiary of PMC to another subsidiary of PMCis not secured, except by a security interest permitted under Section 5.9(h) hereof, and (Bii) was not incurred in anticipation of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan AgreementsAcquisition;
(ivl) Indebtedness of a Company incurred pursuant to synthetic leases;
(Am) Indebtedness of a Company that is owing to any governmental entity, including, without limitation, industrial revenue bonds and grants issued by any governmental entity to such Company which may constitute Indebtedness until the completion of the tasks related to such grants; provided, however, that all such Indebtedness must be either (i) unsecured, (ii) only secured by the fixed assets purchased with proceeds from such Indebtedness, or (iii) secured with assets (other than fixed assets) that are specifically related to the “project” that is secured by purchase money security interests the subject of the grant or financing, securing no more than the aggregate amount, for all such Indebtedness of all Companies, of Five Million Dollars ($5,000,000) at any time outstanding;
(n) Indebtedness not exceeding otherwise described in or subject to subparts (a) through (k) hereof in an aggregate principal amount not to exceed the lesser greater of $3,000,000.00 or (i) two percent (2%) of PMC's tangible Consolidated total assets on a consolidated basisof Borrower, or (Bii) that Five Million Dollars ($5,000,000) at any time outstanding; and
(o) other unsecured Indebtedness, in addition to the Indebtedness listed above, so long as (i) the maturity date (and earliest possible put date) of such Indebtedness is incurred in connection with interest rate protection agreements, at least thirty (C30) that is incurred as a result days after the last day of the assumption of liabilities in an acquisitionCommitment Period, and (Dii) that is expressly subordinated the Companies are in compliance (and in pro forma compliance after giving effect to such Indebtedness) with the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate provisions of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)Section 5.7 hereof.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 2 contracts
Samples: Credit Agreement (Teletech Holdings Inc), Credit Agreement (Teletech Holdings Inc)
Borrowing. Borrower will not:
(a) create, incur, assume or suffer to exist any liability for accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) Borrowers will not create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except:
(i) liabilities created by or pursuant Indebtedness to this AgreementLenders;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase not exceeding $500,000.00 in the amount of such Indebtedness or other significant change in the terms of such Indebtedness)aggregate outstanding at any one time;
(iii) Indebtedness as described on Schedule 7.1, including the refinancing of any ------------ such Indebtedness on economic terms and conditions (Aincluding all fees, charges and other up-front payments) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiarythat, in each case where such subsidiary is a Borrower under this Agreement or under one the good faith judgment of the Affiliated Loan AgreementsCompany, is no less favorable to the Company and its Subsidiaries or to the Lenders, in an aggregate principal amount not to exceed the then principal balance of the debt being refinanced and without any increase in the interest rate (including all fees, charges and other up-front payments), the monthly debt service, or the amortization of principal;
(iv) Indebtedness owed to another Borrower (except a Specified Borrower), which shall be subordinated in all respects to Indebtedness to Lenders;
(v) Indebtedness in connection with surety bonds, letters of credit (if required in connection with the insurance program authorized under Section 6.7 or otherwise expressly permitted in this Agreement) and performance bonds obtained in connection with (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 workers' compensation obligations or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result general liability exposure of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00Borrowers; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).and
(cvi) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, guaranties and contingent liabilities to the extent permitted by this Agreement Section 7.8; provided, however, Borrowers (other than Mortgage Borrowers) may create, incur, assume or suffer to exist -------- ------- liability for Borrowed Money that is (w) (I) Approved Indebtedness expressly permitted in Exhibit X, including --------- the refinancing of any subsequent agreement between Borrower such Indebtedness on economic terms and Lenderconditions (including all fees, charges and other up-front payments) that, in the good faith judgment of the Company, is no less favorable to the Company and its Subsidiaries or to the Lenders, in an aggregate principal amount not to exceed the then principal balance of the debt being refinanced and without any increase in the interest rate (including all fees, charges and other up-front payments). Any , the monthly debt service, or the amortization of principal or (II) Approved Capital Lease Indebtedness expressly permitted Indebtednessin Exhibit X, prepayment or other exception set forth above shall be permitted to be created only so long as no Event as, in the case of Default has occurred I and is continuing under this Agreement at II above, the time of such creation and shall same could not --------- reasonably be prohibited after the occurrence and during the continuance of any Event of Default.expected to have a Material Adverse Effect;
Appears in 1 contract
Samples: Loan and Security Agreement (Harborside Healthcare Corp)
Borrowing. Borrower will not:No Company shall create, incur or have outstanding any obligation for borrowed money or any Indebtedness of any kind; provided, that this Section shall not apply to any of the following (without duplication):
(a) createthe Loans and all other Indebtedness now owing by Borrower to Agent and the Banks under this Agreement;
(b) unsecured current Indebtedness (including the funded and/or unfunded reserves for self insurance liabilities, incurbut excluding Indebtedness incurred to a bank or other financial institution customarily engaged in the business of lending money, assume or suffer except as permitted pursuant to exist any liability for accounts payable to trade creditors and current operating expenses subpart (other than for borrowed moneyd) which are aged more than one hundred eighty (180below) days from incurred by the billing date or more than sixty (60) days from the due date, in each case incurred Companies in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsbusiness;
(bc) createIndebtedness for taxes, incurassessments and governmental charges to the extent that payment thereof shall not be required to be made by Section 5.2(a) hereof;
(d) unsecured Indebtedness incurred under lines of credit established by Agent or other financial institutions customarily engaged in the business of lending money; provided, assume however, that the maximum amount of Indebtedness permitted by this subpart (d) shall at no time exceed Fifteen Million Dollars ($15,000,000);
(e) unsecured Subordinated Indebtedness evidenced by promissory notes issued by Borrower to employees or suffer former employees in partial payment for common shares redeemed by Borrower so long as the aggregate principal amount of such Indebtedness does not exceed Five Million Dollars ($5,000,000) at any time;
(f) loans to exist a Company from a Company so long as each such Company is Borrower or a Guarantor of Payment;
(g) Indebtedness to insurance companies secured by a pledge of the cash surrender value of life insurance policies owned by Borrower or any liability for Borrowed Money of its Subsidiaries; provided, however, that the maximum amount of Indebtedness permitted by this subpart ("Indebtedness"h) exceptshall at no time exceed the cash surrender value of the life insurance policies pledged with respect thereto;
(h) unsecured Indebtedness arising pursuant to the deferment of payment of any insurance premiums by Borrower;
(i) liabilities created by any (i) loans granted to a Company for the purchase of fixed assets, or pursuant to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is incurred by a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred Company in connection with interest rate protection agreementsany capital lease, so long as the aggregate amount of all such loans and capital leases for all Companies does not exceed Seven Million Five Hundred Thousand Dollars (C$7,500,000) that is at any time; and
(j) unsecured Subordinated Indebtedness of Borrower incurred as to a result seller to finance all or part of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations Acquisition permitted pursuant to written terms reasonably acceptable to Lendersection 5.13 hereof, but so long as the aggregate outstanding amount of all such Indebtedness described in this subparagraph shall for all such Acquisitions does not exceed Ten Million Dollars ($10,000,000) at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)time.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. (a) The Loans shall, at the option of the applicable Borrower will notand subject to the terms and conditions of this Agreement, be either Base Rate Loans or SOFR Loans, provided that (i) the Swingline Loans shall be made and maintained as Base Rate Loans and (ii) all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. In order to make a Borrowing (other than (x) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(c), (y) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(d), or (z) continuations or conversions of outstanding Loans made pursuant to Section 2.12), the applicable Borrower shall deliver to the Administrative Agent a fully executed, irrevocable notice of borrowing in the form of Exhibit B-1 (the “Notice of Borrowing”) no later than 11:00 a.m. three (3) U.S. Government Securities Business Days prior to each Borrowing of SOFR Loans and not later than 10:00 a.m. on the same Business Day as, but prior to, each Borrowing of Base Rate Loans. Upon its receipt of the Notice of Borrowing, the Administrative Agent shall promptly notify each Lender of the proposed borrowing. Notwithstanding anything to the contrary contained herein:
(ai) createeach Borrowing of Base Rate Loans shall be in a principal amount not less than $3,000,000 or, incurif greater, assume or suffer to exist any liability for accounts payable to trade creditors an integral multiple of $1,000,000 in excess thereof, and current operating expenses each Borrowing of SOFR Loans shall be in a principal amount not less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due dateor, in each case incurred if less than the minimum amount, in the ordinary course amount of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this Agreementaggregate Unutilized Commitments);
(ii) existing Indebtedness on if the date applicable Borrower shall have failed to designate the Type of this AgreementLoans in a Notice of Borrowing, then the Loans shall be made as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);Base Rate Loans; and
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC if the applicable Borrower shall have failed to another subsidiary of PMC, and (B) of PMC specify an Interest Period to be applicable to any such subsidiaryBorrowing of SOFR Loans, then the applicable Borrower shall be deemed to have selected an Interest Period of one month.
(b) Not later than 1:00 p.m. on the requested Borrowing Date, each Lender will make available to the Administrative Agent at the Payment Office an amount, in each case where Dollars and in immediately available funds, equal to its Ratable Share of such subsidiary is a Borrower under this Agreement requested Borrowing as its Loan or under one Loans. Upon satisfaction or waiver of the Affiliated Loan Agreements;
applicable conditions set forth in Section 3.2 (iv) Indebtedness (A) that and, if such Borrowing is secured by purchase money security interests not exceeding to occur on the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basisClosing Date, (B) that is incurred in connection with interest rate protection agreementsSection 3.1), (C) that is incurred as a result the Administrative Agent will make the proceeds of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated Loans available to the Obligations pursuant applicable Borrower in accordance with Section 2.3(a) by causing an amount of like funds equal to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues amount received from the Lenders to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) credited to an account of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)Borrower.
(c) except In order to make a Borrowing of a Swingline Loan, the applicable Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 3:00 p.m. on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 5:00 p.m. on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, upon satisfaction or waiver of the applicable conditions set forth in Section 3.2 (and, if such Borrowing is to occur on SCHEDULE 7.1the Closing Date, Section 3.1), the Administrative Agent will make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money such amount available to the applicable Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent.
(d) With respect to any Person outstanding Swingline Loans, the Swingline Lender may at any time (other than Lender, to the extent permitted by this Agreement whether or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no not an Event of Default has occurred and is continuing under continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the applicable Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the applicable Borrower), not later than 11:00 a.m. one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the applicable Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m. on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its Ratable Share of the Refunded Swingline Loans. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s Ratable Share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the applicable Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.16(b).
(e) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the applicable Borrower, Revolving Loans are not made pursuant to Section 2.2(d) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of such Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its Ratable Share of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the time Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such creation amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(e), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Overnight Rate for the first three Business Days and thereafter at the Adjusted Base Rate plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. Promptly following its receipt of any payment by or on behalf of the applicable Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s Ratable Share of such payment.
(f) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Swingline Loans pursuant to Section 2.2(d) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(e) shall be absolute and unconditional and shall not be prohibited after affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrowers or any other Person for any reason whatsoever, (ii) the occurrence and during the or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in Section 2.2(a), or (iv) the failure of any conditions set forth in Section 3.2 or elsewhere herein to be satisfied.
Appears in 1 contract
Samples: Credit Agreement (Unum Group)
Borrowing. Borrower will not:
(a) not create, incur, assume or suffer to exist any liability for Borrowed Money except: (a) indebtedness to Lender; (b) indebtedness of Borrower secured by mortgages, encumbrances or liens expressly permitted by Section 7.3 hereof; (c) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than one hundred eighty ninety (18090) days from the billing date or more than sixty (60) days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
; (bd) create, incur, assume or suffer to exist borrowings incurred in the ordinary course of its business and not exceeding $125,000.00 in the aggregate outstanding at any liability for Borrowed Money one time; ("Indebtedness") except
(i) liabilities created by or pursuant to this Agreement;
(iie) existing Indebtedness indebtedness listed on Schedule 7.1 hereto, and any extension, modification, refunding or replacement thereof; (f) purchase money indebtedness and leases required to be capitalized in accordance with GAAP; (g) indebtedness representing the date deferred purchase price of this Agreement, as set forth on SCHEDULE 7.1, including any extensions clinics or renewals related operations or facilities representing not more than 50% of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, purchase price therefor; and (Bh) of PMC indebtedness relating to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement clinics or under one related operations or facilities existing at the time of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred acquisition thereof. Accounts to which Borrower acquires rights as a result of the assumption purchase of liabilities in an acquisitionclinics, related operations or facilities shall not be considered "Qualified Accounts" for purposes of this Agreement, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.08 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), assume which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or suffer to exist leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Forty Million Dollars ($40,000,000) at any liability for accounts payable to trade creditors time outstanding;
(c) the Indebtedness existing on the Effective Date as set forth on Schedule 5.08 hereto (and current operating expenses any extension, renewal, replacement or refinancing thereof so long as the principal amount thereof shall not be increased (other than for borrowed moneyan increase in the principal amount of such Indebtedness due to the payment of premiums, fees and costs associated with such extension, renewal, replacement or refinancing) which are aged more than one hundred eighty after the Effective Date);
(180d) days from the billing date or more than sixty Indebtedness of a Credit Party to any other Credit Party;
(60e) days from the due dateIndebtedness under any Hedge Agreement, in each case incurred so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bf) createPermitted Foreign Subsidiary Loans and Investments;
(g) secured Indebtedness of a Foreign Subsidiary in an aggregate principal amount for all Foreign Subsidiaries not to exceed Ten Million Dollars ($10,000,000) at any time outstanding;
(h) unsecured Subordinated Indebtedness, incurwith terms reasonably acceptable to the Administrative Agent and the Required Lenders, assume or suffer in an aggregate principal amount for all Companies not to exist exceed Two Hundred Fifty Million Dollars ($250,000,000) at any liability for Borrowed Money ("Indebtedness") excepttime outstanding; and
(i) liabilities created by or pursuant other unsecured Indebtedness, in addition to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiarylisted above, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
an aggregate principal amount for all Companies not to exceed Twenty-Five Million Dollars (iv$25,000,000) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)outstanding.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. (a) The Loans shall, at the option of the Borrower will notand subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans, provided that (i) the Swingline Loans shall be made and maintained at the LIBOR Market Index Rate plus the Interest Margin as in effect at such time and (ii) all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(c), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(d), (y) conversions of Revolving Loans upon exercise of the Term-Out Option, which shall be made pursuant to Section 2.1(b) or (z) continuations or conversions of outstanding Loans made pursuant to Section 2.12), the Borrower shall deliver to the Administrative Agent a fully executed, irrevocable notice of borrowing in the form of Exhibit B-1 (the “Notice of Borrowing”) no later than 11:00 a.m., Charlotte time three Business Days prior to each Borrowing of LIBOR Loans and not later than 10:00 a.m., Charlotte time, on the same Business Day prior to each Borrowing of Base Rate Loans. Upon its receipt of the Notice of Borrowing, the Administrative Agent shall promptly notify each Lender of the proposed borrowing. Notwithstanding anything to the contrary contained herein:
(ai) createeach Borrowing of Base Rate Loans shall be in a principal amount not less than $3,000,000 or, incurif greater, assume or suffer to exist any liability for accounts payable to trade creditors an integral multiple of $1,000,000 in excess thereof, and current operating expenses each Borrowing of LIBOR Loans shall be in a principal amount not less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due dateor, in each case incurred if less than the minimum amount, in the ordinary course amount of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this Agreementaggregate Unutilized Commitments);
(ii) existing Indebtedness on if the date Borrower shall have failed to designate the Type of this AgreementLoans in a Notice of Borrowing, then the Loans shall be made as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);Base Rate Loans; and
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC if the Borrower shall have failed to another subsidiary of PMC, and (B) of PMC specify an Interest Period to be applicable to any such subsidiaryBorrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period of one month.
(b) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender will make available to the Administrative Agent at the Payment Office an amount, in each case where Dollars and in immediately available funds, equal to its Ratable Share of such subsidiary is a Borrower under this Agreement requested Borrowing as its Loan or under one Loans. Upon satisfaction or waiver of the Affiliated Loan Agreements;
applicable conditions set forth in Section 3.2 (iv) Indebtedness (A) that and, if such Borrowing is secured by purchase money security interests not exceeding to occur on the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basisClosing Date, (B) that is incurred in connection with interest rate protection agreementsSection 3.1), (C) that is incurred as a result the Administrative Agent will make the proceeds of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated Loans available to the Obligations pursuant Borrower in accordance with Section 2.3(a) by causing an amount of like funds equal to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues amount received from the Lenders to be in excess credited to an account of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)Borrower.
(c) except In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $100,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as set forth on SCHEDULE 7.1provided hereinabove, the Administrative Agent will make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent.
(d) With respect to any Person outstanding Swingline Loans, the Swingline Lender may at any time (other than Lender, to the extent permitted by this Agreement whether or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no not an Event of Default has occurred and is continuing under this Agreement at continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the time Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such creation Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and shall be prohibited after each other Lender (on behalf of, and with a copy to, the occurrence and during the continuance of any Event of Default.Borrower), not later than
Appears in 1 contract
Samples: Credit Agreement (Unum Group)
Borrowing. (a) The Loans shall, at the option of the Borrower will notand subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans, provided that (i) the Swingline Loans shall be made and maintained as Base Rate Loans and (ii)all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. In order to make a Borrowing (other than (x) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(c), (y) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(d), or (z) continuations or conversions of outstanding Loans made pursuant to Section 2.12), the Borrower shall deliver to the Administrative Agent a fully executed, irrevocable notice of borrowing in the form of Exhibit B-1 (the “Notice of Borrowing”) no later than 11:00 a.m. three Business Days prior to each Borrowing of LIBOR Loans and not later than 10:00 a.m. on the same Business Day prior to each Borrowing of Base Rate Loans. Upon its receipt of the Notice of Borrowing, the Administrative Agent shall promptly notify each Lender of the proposed borrowing. Notwithstanding anything to the contrary contained herein:
(ai) createeach Borrowing of Base Rate Loans shall be in a principal amount not less than $3,000,000 or, incurif greater, assume or suffer to exist any liability for accounts payable to trade creditors an integral multiple of $1,000,000 in excess thereof, and current operating expenses each Borrowing of LIBOR Loans shall be in a principal amount not less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due dateor, in each case incurred if less than the minimum amount, in the ordinary course amount of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this Agreementaggregate Unutilized Commitments);
(ii) existing Indebtedness on if the date Borrower shall have failed to designate the Type of this AgreementLoans in a Notice of Borrowing, then the Loans shall be made as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);Base Rate Loans; and
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC if the Borrower shall have failed to another subsidiary of PMC, and (B) of PMC specify an Interest Period to be applicable to any such subsidiaryBorrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period of one month.
(b) Not later than 1:00 p.m. on the requested Borrowing Date, each Lender will make available to the Administrative Agent at the Payment Office an amount, in each case where Dollars and in immediately available funds, equal to its Ratable Share of such subsidiary is a Borrower under this Agreement requested Borrowing as its Loan or under one Loans. Upon satisfaction or waiver of the Affiliated Loan Agreements;
applicable conditions set forth in Section 3.2 (iv) Indebtedness (A) that and, if such Borrowing is secured by purchase money security interests not exceeding to occur on the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basisClosing Date, (B) that is incurred in connection with interest rate protection agreementsSection 3.1), (C) that is incurred as a result the Administrative Agent will make the proceeds of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated Loans available to the Obligations pursuant Borrower in accordance with Section 2.3(a) by causing an amount of like funds equal to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues amount received from the Lenders to be in excess credited to an account of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)Borrower.
(c) except In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 3:00 p.m. on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m. on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, upon satisfaction or waiver of the applicable conditions set forth in Section 3.2 (and, if such Borrowing is to occur on SCHEDULE 7.1the Closing Date, Section 3.1), the Administrative Agent will make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent.
(d) With respect to any Person outstanding Swingline Loans, the Swingline Lender may at any time (other than Lender, to the extent permitted by this Agreement whether or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no not an Event of Default has occurred and is continuing under continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m. one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m. on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its Ratable Share of the Refunded Swingline Loans. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s Ratable Share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.16(b).
(e) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(d) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its Ratable Share of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the time Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such creation amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(e), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s Ratable Share of such payment.
(f) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Swingline Loans pursuant to Section 2.2(d) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(e) shall be absolute and unconditional and shall not be prohibited after affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence and during the or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in Section 2.2(a), or (iv) the failure of any conditions set forth in Section 3.2 or elsewhere herein to be satisfied.
Appears in 1 contract
Samples: Credit Agreement (Unum Group)
Borrowing. Borrower will not:No Company shall create, incur or have outstanding any obligation for borrowed money or any Indebtedness of any kind; provided, that this Section shall not apply to any of the following (without duplication):
(a) createthe Loans and all other Indebtedness now owing by Borrower to Agent and the Banks under this Agreement;
(b) unsecured current Indebtedness (including the funded and/or unfunded reserves for self insurance liabilities, incurbut excluding Indebtedness incurred to a bank or other financial institution customarily engaged in the business of lending money, assume or suffer except as permitted pursuant to exist any liability for accounts payable to trade creditors and current operating expenses subpart (other than for borrowed moneyd) which are aged more than one hundred eighty (180below) days from incurred by the billing date or more than sixty (60) days from the due date, in each case incurred Companies in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsbusiness;
(bc) createIndebtedness for taxes, incurassessments and governmental charges to the extent that payment thereof shall not be required to be made by Section 5.2(a) hereof;
(d) unsecured Indebtedness incurred under lines of credit established by Agent or other financial institutions customarily engaged in the business of lending money; provided, assume however, that the maximum amount of Indebtedness permitted by this subpart (d) shall at no time exceed Twenty Million Dollars ($20,000,000);
(e) unsecured Subordinated Indebtedness evidenced by promissory notes issued by Borrower to employees or suffer former employees in partial payment for common shares redeemed by Borrower so long as the aggregate principal amount of such Indebtedness does not exceed Ten Million Dollars ($10,000,000) at any time;
(f) loans to exist a Company from a Company so long as each such Company is Borrower or a Guarantor of Payment;
(g) Indebtedness to insurance companies secured by a pledge of the cash surrender value of life insurance policies owned by Borrower or any liability for Borrowed Money of its Subsidiaries; provided, however, that the maximum amount of Indebtedness permitted by this subpart ("Indebtedness"g) exceptshall at no time exceed the cash surrender value of the life insurance policies pledged with respect thereto;
(h) unsecured Indebtedness arising pursuant to the deferment of payment of any insurance premiums by Borrower;
(i) liabilities created by any (i) loans granted to a Company for the purchase of fixed assets, or pursuant to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is incurred by a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred Company in connection with interest rate protection agreementsany capital lease, so long as the aggregate amount of all such loans and capital leases for all Companies does not exceed Twelve Million Dollars (C$12,000,000) that is at any time; and
(j) unsecured Subordinated Indebtedness of Borrower incurred as to a result seller to finance all or part of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations Acquisition permitted pursuant to written terms reasonably acceptable to LenderSection 5.13 hereof, but so long as the aggregate outstanding amount of all such Indebtedness described in this subparagraph shall for all such Acquisitions does not exceed Ten Million Dollars ($10,000,000) at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)time.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any obligation for borrowed money or any Indebtedness of any kind; provided, that this Section shall not apply to:
(a) createthe Loans, incurLetters of Credit or any other Indebtedness under this Agreement;
(b) in addition to the other Indebtedness permitted to be incurred pursuant to this Section, assume Indebtedness as set forth on Schedule 5.8 hereto up to the maximum principal amount of such Indebtedness as set forth on Schedule 5.8 hereto (and any extension, renewal or suffer refinancing thereof so long as the maximum principal amount thereof shall not be increased after the Closing Date);
(c) the unsecured Indebtedness and the guaranties thereof of the Companies under the Note Agreements existing as of the Closing Date, together with any renewal or refinancing of any such Indebtedness and any additional Indebtedness incurred under the Note Agreements so long as (i) the Companies shall be in compliance with the financial covenants set forth in Section 5.7 hereof both immediately before and after giving pro forma effect to the renewal, refinancing or incurrence of such Indebtedness, and (ii) no Default or Event of Default shall then exist or immediately after the renewal, refinancing or incurrence of such Indebtedness will exist;
(d) loans or capital leases to any liability Company for accounts payable the purchase or lease of fixed assets, which loans or leases are secured by the fixed assets being purchased or leased, so long as the aggregate principal amount of all such loans and leases for all Companies shall not exceed at any time an amount equal to trade creditors and current operating expenses twenty percent (other than 20%) of Consolidated Net Worth, based upon the financial statements of the Companies for borrowed moneythe most recently completed fiscal quarter;
(e) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due dateIndebtedness of a Company under any Hedge Agreement, so long as such Hedge Agreement shall have been entered in each case incurred to in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bf) createloans to a Company from a Company so long as each such Company is a Borrower or Guarantor of Payment; and
(g) additional unsecured Indebtedness of the Companies to the extent not otherwise permitted pursuant to any of the foregoing subparts, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
so long as (i) liabilities created by or pursuant the Companies shall be in compliance with the financial covenants set forth in Section 5.7 hereof both immediately before and after giving pro forma effect to this Agreement;
the incurrence of such Indebtedness, (ii) existing Indebtedness on no Default or Event of Default shall then exist or immediately after the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount incurrence of such Indebtedness or other significant change in the terms of such Indebtedness);
will exist, and (iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to if any such subsidiaryIndebtedness constitutes Material Indebtedness, in each case where the final maturity date of such subsidiary Indebtedness shall be no earlier than the date that is a Borrower under this Agreement or under one ninety (90) days after the last day of the Affiliated Loan Agreements;
(iv) Commitment Period unless such Indebtedness (A) that is secured being provided by purchase money security interests not exceeding the lesser of $3,000,000.00 Agent or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result any of the assumption of liabilities in an acquisition, Banks and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)their Affiliates.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Cedar Fair L P)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.08 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), assume which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or suffer to exist leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Fifty Million Dollars ($50,000,000) at any liability for accounts payable to trade creditors time outstanding;
(c) the Indebtedness existing on the Effective Date as set forth on Schedule 5.08 hereto (and current operating expenses any extension, renewal, replacement or refinancing thereof so long as the principal amount thereof shall not be increased (other than for borrowed moneyan increase in the principal amount of such Indebtedness due to the payment of premiums, fees and costs associated with such extension, renewal, replacement or refinancing) which are aged more than one hundred eighty after the Effective Date);
(180d) days from the billing date or more than sixty Indebtedness of a Credit Party to any other Credit Party;
(60e) days from the due dateIndebtedness under any Hedge Agreement, in each case incurred so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bf) createPermitted Foreign Subsidiary Loans and Investments;
(g) secured Indebtedness of a Foreign Subsidiary in an aggregate principal amount for all Foreign Subsidiaries not to exceed Ten Million Dollars ($10,000,000) at any time outstanding;
(h) unsecured Subordinated Indebtedness, incurwith terms reasonably acceptable to the Administrative Agent and the Required Lenders, assume or suffer in an aggregate principal amount for all Companies not to exist exceed Two Hundred Fifty Million Dollars ($250,000,000) at any liability for Borrowed Money ("Indebtedness") excepttime outstanding; and
(i) liabilities created by or pursuant other unsecured Indebtedness of a Company, in addition to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in listed above, so long as the aggregate principal amount of such Indebtedness or other significant change for all Companies incurred during such time as the Borrower is not in compliance with the terms of such Indebtedness);
Adjusted Covenant Requirement does not exceed Fifty Million Dollars (iii$50,000,000) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)outstanding.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Samples: Credit Agreement (PTC Inc.)
Borrowing. Borrower will not:
(a) not create, incur, assume or suffer to exist any liability for Borrowed Money without Lender's prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Borrower shall be permitted to incur the following: (a) indebtedness to Lender; (b) indebtedness of Borrower secured by mortgages, encumbrances or liens expressly permitted or not prohibited by Section 7.3 hereof; (c) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than one hundred eighty twenty (180120) days from the billing date or more than sixty (60) days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
; (bd) createborrowing incurred in the ordinary course of its business and not exceeding $100,000.00 in the aggregate outstanding at any one time; (e) borrowed money not to exceed $250,000.00 in the aggregate outstanding at any one time incurred by the Borrower or any subsidiary after the Closing Date; provided, incur, assume or suffer to exist any liability that (i) such Indebtedness for Borrowed Money ("Indebtedness") except
(i) liabilities created is incurred on account of purchase money or finance lease arrangements of assets acquired by the Borrower or pursuant to this Agreement;
a Subsidiary after the Closing Date, (ii) existing Indebtedness on each such purchase money or finance lease arrangement does not exceed the date cost of this Agreement, the assets acquired or leased; (iii) any Lien securing such purchase money or finance lease arrangement does not extend to the Collateral or any assets or property other than that purchased or leased; (f) capital leases of equipment not to exceed $100,000.00 of aggregate lease obligations in any calendar year; (g) indebtedness for Borrowed Money as set forth on SCHEDULE 7.1Schedule 7.1 of this Agreement. If an Event of Default shall have occurred, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests will not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make voluntary prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Samples: Loan and Security Agreement (BMJ Medical Management Inc)
Borrowing. Borrower will not:
No Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following: (a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement; (b) any loans granted to, assume or suffer Capitalized Lease Obligations entered into by, any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Ten Million Dollars ($10,000,000) at any time outstanding; (c) the Indebtedness existing on the Closing Date, in addition to exist the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any liability for accounts payable extension, renewal or refinancing thereof but only to trade creditors the extent that the principal amount thereof does not increase after the Closing Date); (d) Indebtedness of any Person in existence on the date on which such Person becomes a Company, so long as (i) such Indebtedness is not incurred or created in connection with such Person becoming a Company, (ii) no other Company has any obligation with respect to such Indebtedness, (iii) none of the properties of the Companies thereof is bound with respect to 87 such Indebtedness and current operating expenses (iv) the aggregate principal amount of all such Indebtedness permitted by this subpart (d) shall not exceed Ten Million Dollars ($10,000,000) at any time outstanding; (e) loans to, and guaranties of Indebtedness of, a Credit Party from any other Credit Party; (f) Indebtedness owed by any Subsidiary of any Credit Party to any Credit Party and guarantees by any Credit Party of the Indebtedness of any such Subsidiary, so long as the principal amount of such Indebtedness and guarantees, when combined with the principal amount of Indebtedness owed to any Credit Party pursuant to Section 5.8(h) hereof, does not exceed an aggregate amount of Ten Million Dollars ($10,000,000) at any time outstanding; provided that no additional such Indebtedness shall be incurred and no additional such guarantees shall be made during the continuance of an Event of Default; (g) Indebtedness owed by any Company that is not a Credit Party to any other Company that is not a Credit Party and guarantees by any such Company of the Indebtedness of any other Company that is not a Credit Party; (h) Indebtedness of any Subsidiary of any Credit Party to the holders (or their respective Affiliates) of the equity interests in such Subsidiary on a basis that is substantially proportionate to their equity interests (with any disproportionately large interest received by any Credit Party or any of its respective Subsidiaries or any disproportionately small interest received by any Person other than such Credit Party or any such Subsidiary, being ignored for borrowed moneythis purpose), so long as the principal amount of such Indebtedness owed to any Credit Party, when combined with the principal amount of Indebtedness owed to any Credit Party pursuant to Section 5.8(f) which are aged more than one hundred eighty hereof, does not exceed an aggregate amount of Ten Million Dollars (180$10,000,000) days from at any time outstanding; provided that no additional such Indebtedness shall be incurred during the billing date continuance of an Event of Default; (i) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and not for speculative purposes; (j) Indebtedness in respect of (i) deposits made by customers and held under forward purchasing arrangements entered into with customers in the ordinary course of business, (ii) performance, bid, surety, appeal or more than sixty similar bonds or completion or performance guarantees provided in the ordinary course of business, (60iii) days from the due dateworkers’ compensation claims or self-insurance obligations otherwise permitted hereunder, in each case incurred in the ordinary course of business (including, indebtedness relating to any part-time worker arrangements in accordance with the German Act on Part-Time Retirement (Altersteilzeitgesetz) or pursuant to section 7e of part IV of the German Social Security Code (Sozialgesetzbuch IV)) and paid within such time period, unless the same are (iv) past due accounts payable being contested in good faith accordance with Section 5.2 hereof; (k) customary indemnification, reimbursement or similar obligations and by appropriate warranties under leases and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase other contracts in the amount ordinary course of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00business; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.88
Appears in 1 contract
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to, assume or suffer to exist Capitalized Lease Obligations entered into by, any liability Company for accounts payable to trade creditors the purchase or lease of fixed assets (and current operating expenses refinancings of such loans or Capitalized Lease Obligations), which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Fifteen Million Dollars (other than for borrowed money$15,000,000) which are aged more than one hundred eighty at any time outstanding;
(180c) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not increase after the Closing Date);
(d) loans to, and guaranties of Indebtedness of, a Company from a Company so long as each case incurred such Company is a Credit Party;
(e) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bf) createPermitted Foreign Subsidiary Loans, incurGuaranties and Investments;
(g) unsecured Subordinated Indebtedness with subordination terms reasonably satisfactory to Agent, assume or suffer so long as the aggregate principal amount of all Subordinated Indebtedness for all Companies (including the Subordinated Indebtedness existing as of the Closing Date and referenced on Schedule 5.8 hereto), shall not exceed One Hundred Million Dollars ($100,000,000) at any time outstanding;
(h) other Indebtedness (that does not constitute Non-Credit Party Exposure) of Foreign Subsidiaries, in addition to exist the Indebtedness listed above, in an aggregate amount for all Foreign Subsidiaries not to exceed Three Million Dollars ($3,000,000) at any liability for Borrowed Money ("Indebtedness") excepttime outstanding,; and
(i) liabilities created by or pursuant other Indebtedness, in addition to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiarylisted above, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
an aggregate principal amount for all Companies not to exceed Two Million Dollars (iv$2,000,000) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)outstanding.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower will not:
(aSubject to the terms and conditions set forth herein and in the(d) createFourth Amendment, incur, assume or suffer to exist any liability for accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant the Additional Term B-1 Lender agrees to this Agreement;
make a Term B-1 Loan to the Company on the Fourth Amendment Effective Date in Dollars in a principal amount not to exceed its Additional Term B-1 Commitment, (ii) existing Indebtedness on each Converting Consenting Term B Lender agrees to have all of its outstanding Term B Loans (or such lesser amount as notified and allocated to such Converting Consenting Term B Lender by the date of this AgreementFourth Amendment Joint Lead Arrangers, as set forth on SCHEDULE 7.1, including any extensions or renewals determined by the Company and the Fourth Amendment Joint Lead Arrangers in their sole discretion) converted to an equivalent principal amount of Term B-1 Loans effective as of the Indebtedness Fourth Amendment Effective Date and (provided that there is no increase iii) each Non-Converting Consenting Term B Lender agrees to have all of its outstanding Term B Loans prepaid and will purchase by assignment from the Additional Term B-1 Lender Term B-1 Loans in a principal amount equal to the principal amount of such Indebtedness Term B Loans (or other significant change such lesser amount as notified and allocated to such Non-Converting Consenting Term B Lender by the Fourth Amendment Joint Lead Arrangers, as determined by the Fourth Amendment Joint Lead Arrangers and the Administrative Agent in the terms of such Indebtednesstheir sole discretion);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower . Amounts borrowed under this Agreement Section 2.01(d) and repaid or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests prepaid may not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit reborrowed. Term B-1 Loans may be increased Base Rate Loans or Term SOFR Loans, as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender)further provided herein. Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.The Term A-1
Appears in 1 contract
Samples: Sixth Amendment to Amended and Restated Credit Agreement (WEX Inc.)
Borrowing. Borrower will not:No Company shall create, incur or have outstanding any obligation for borrowed money or any Indebtedness of any kind; provided, that this Section 5.8 shall not apply to any of the following (without duplication):
(a) createthe Loans and all other Indebtedness now owing by Borrower to Agent and the Banks under this Agreement;
(b) unsecured current Indebtedness (including the funded and/or unfunded reserves for self insurance liabilities, incurbut excluding Indebtedness incurred to a bank or other financial institution customarily engaged in the business of lending money, assume or suffer except as permitted pursuant to exist any liability for accounts payable to trade creditors and current operating expenses subpart (other than for borrowed moneyd) which are aged more than one hundred eighty (180below) days from incurred by the billing date or more than sixty (60) days from the due date, in each case incurred Companies in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsbusiness;
(bc) createIndebtedness for Taxes, incurassessments and governmental charges to the extent that payment thereof shall not be required to be made by Section 5.2(a) hereof; NAI-1519170929v11
(d) unsecured Indebtedness incurred under lines of credit established by Agent or other financial institutions customarily engaged in the business of lending money; provided, assume however, that the maximum principal amount of Indebtedness permitted by this subpart (d) shall, when aggregated with the principal amount of any Indebtedness outstanding under Sections 5.8(e) and 5.8(j) hereof, not exceed One Hundred Fifty Million Dollars ($150,000,000) at any time;
(e) unsecured Subordinated Indebtedness evidenced by promissory notes issued by Borrower to employees or suffer former employees in partial payment for common shares redeemed by Borrower so long as the aggregate principal amount of such Indebtedness, when aggregated with any Indebtedness outstanding under Sections 5.8(d) and 5.8(j) hereof, does not exceed One Hundred Fifty Million Dollars ($150,000,000) at any time;
(f) loans to exist a Company from a Company so long as each such Company is Borrower or a Guarantor of Payment;
(g) Indebtedness to insurance companies secured by a pledge of the cash surrender value of life insurance policies owned by Borrower or any liability for Borrowed Money of its Subsidiaries; provided, however, that the maximum amount of Indebtedness permitted by this subpart ("Indebtedness"g) exceptshall at no time exceed the cash surrender value of the life insurance policies pledged with respect thereto;
(h) unsecured Indebtedness arising pursuant to the deferment of payment of any insurance premiums by Borrower;
(i) liabilities created any (i) loans granted to a Company for the purchase of fixed assets, or (ii) Indebtedness incurred by a Company in connection with any Capital Leases, so long as the aggregate amount of all such loans and Capital Leases for all Companies (excluding Capital Leases between Borrower or pursuant to this Agreementa Subsidiary Guarantor and a Subsidiary Guarantor) does not exceed Fifty Million Dollars ($50,000,000) at any time;
(iij) existing any (x) unsecured Indebtedness on of Borrower in an aggregate principal amount outstanding not to exceed Twenty Five Million Dollars ($25,000,000) and (y) unsecured Subordinated Indebtedness of Borrower, in each case, incurred to a seller to finance all or part of an Acquisition permitted pursuant to Section 5.13 hereof, so long as the date aggregate outstanding amount of this Agreementall such Indebtedness for all such Acquisitions does not, when aggregated with the principal amount of any Indebtedness outstanding under Sections 5.8(d) and 5.8(e) hereof, exceed One Hundred Fifty Million Dollars ($150,000,000) at any time;
(k) unsecured Indebtedness issued pursuant to the Senior Note Purchase Agreements, in, and all guaranties by any Company of such Indebtedness, so long as set forth on SCHEDULE 7.1the aggregate outstanding principal amount of all such Indebtedness, including without duplication, does not exceed One Hundred Fifty Million Dollars ($150,000,000) at any extensions or renewals time;
(l) Indebtedness incurred under a Permitted Receivables Facility for the issuance of letters of credit, so long as the Indebtedness (provided that there is no increase in the aggregate outstanding amount of such Indebtedness or other significant change in the terms of such Indebtedness);
does not exceed One Hundred Fifty Million Dollars (iii$150,000,000) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender)time. Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.NAI-1519170929v11
Appears in 1 contract
Borrowing. Borrower will not:
No Company shall create, incur or have outstanding any Indebtedness of any kind; provided, that this Section shall not apply to (a) createthe Loans, incurthe Letters of Credit, assume the Banking Services Obligations or suffer any other Indebtedness under the Loan Documents; (b) any Indebtedness incurred by Borrowers or any Credit Party in respect of Capital Leases and any Indebtedness incurred to exist finance the acquisition, construction or improvement of any liability fixed or capital assets after the Closing Date that is secured by purchase money mortgage or purchase money security interests, so long as the combined aggregate principal amount of all such Indebtedness does not exceed $5,000,000 at any time outstanding; (c) the Indebtedness existing on the Closing Date as set forth in Schedule 5.8 hereto or as otherwise disclosed to Agent and any refinancings, refundings, renewals or extensions thereof, which do not increase the principal amount or shorten the maturity thereof; (d) loans to a Company from a Company so long as (I) each such Company borrowing such money is a Borrower or a Credit Party, (II) each such loan is evidenced by the Master Promissory Note, which such promissory note has been pledged to Agent, for accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from benefit of the due dateLenders, in each case a manner reasonably satisfactory to Agent, and (III) the Master Promissory Note is Subordinated; (e) Indebtedness under any Hedge Agreement entered into by Borrowers in connection with the Debt and not for speculative purposes, (f) guarantee obligations incurred in the ordinary course of business by a Company of Indebtedness of a Credit Party, (g) Indebtedness in respect of netting services, overdraft protections and paid within such time periodotherwise in connection with deposit accounts, unless the same are being contested in good faith and by appropriate and lawful proceedings(h) Indebtedness constituting Investments permitted pursuant to Section 5.11 hereof, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by Indebtedness incurred in connection with Permitted Acquisitions to the extent it is subordinated to the Secured Debt on terms and conditions satisfactory to Agent in its Permitted Discretion, (j) obligations in respect of performance bonds or pursuant to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase sureties incurred in the amount ordinary course of such Indebtedness or other significant change in the terms of such Indebtedness);
business, (iiik) Indebtedness of any Credit Party arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn by such Credit Party in the ordinary course of business against insufficient funds, so long as such Indebtedness is repaid within five (A5) Business Days; (l) endorsements of items for deposit or collection of commercial paper received in the ordinary course of business; (m) Indebtedness in respect of deposits or advances received in the ordinary course of business; (n) Indebtedness incurred by Subsidiaries of Borrowers that are Foreign Persons in the aggregate amount at any direct time outstanding not to exceed $3,500,000, (o) Indebtedness of a Person or indirect subsidiary Indebtedness attaching to assets of PMC a Person that, in either case, becomes a Subsidiary pursuant to another subsidiary a Permitted Acquisition, or Indebtedness attaching to assets that are acquired by a Borrower or any of PMC, and (B) of PMC to any such subsidiaryits Subsidiaries in a Permitted Acquisition, in each case where after the Closing Date in an aggregate amount not to exceed $500,000 at any time outstanding; provided that such subsidiary is Indebtedness existed at the time such Person became a Borrower Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation or contemplation thereof, (p) to the extent constituting Indebtedness, Investments permitted under this Agreement Section 5.11, (q) to the extent constituting Indebtedness, deferred compensation to employees of Borrowers or under one any of their Subsidiaries incurred in the Affiliated Loan Agreements;
ordinary course of business, (ivr) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreementsthe repurchase of Capital Stock otherwise permitted hereunder issued to officers, executives, directors and employees to purchase Capital Stock (Cor options or warrants or similar instruments) that is incurred as a result of the assumption Credit Parties or any of liabilities in an acquisitiontheir Affiliates, and (Ds) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph any other unsecured debt which shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be 1,000,000 in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)aggregate.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to, assume or suffer to exist Capitalized Lease Obligations entered into by, any liability Company for accounts payable to trade creditors the purchase or lease of fixed assets (and current operating expenses refinancings of such loans or Capitalized Lease Obligations), which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Fifteen Million Dollars (other than for borrowed money$15,000,000) which are aged more than one hundred eighty at any time outstanding;
(180c) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not increase after the Closing Date);
(d) loans to, and guaranties of Indebtedness of, a Company from a Company so long as each case incurred such Company is a Credit Party;
(e) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bf) createPermitted Foreign Subsidiary Loans, incurGuaranties and Investments;
(g) unsecured Subordinated Indebtedness with subordination terms reasonably satisfactory to Agent, assume or suffer so long as (i) the aggregate principal amount of all Subordinated Indebtedness for all Companies (including the Subordinated Indebtedness existing as of the Closing Date and referenced on Schedule 5.8 hereto), shall not exceed One Hundred Million Dollars ($100,000,000) at any time outstanding, and (ii) such Subordinated Indebtedness is permitted under the Convertible Subordinated Note Agreement and the Convertible Subordinated Notes;
(h) other Indebtedness (that does not constitute Non-Credit Party Exposure) of Foreign Subsidiaries, in addition to exist the Indebtedness listed above, in an aggregate amount for all Foreign Subsidiaries not to exceed Three Million Dollars ($3,000,000) at any liability for Borrowed Money ("Indebtedness") excepttime outstanding, so long as such Indebtedness is permitted under the Convertible Subordinated Note Agreement and the Convertible Subordinated Notes; and
(i) liabilities created by or pursuant other Indebtedness, in addition to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiarylisted above, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
an aggregate principal amount for all Companies not to exceed Two Million Dollars (iv$2,000,000) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDEDoutstanding, HOWEVER, that so long as PMC's cash balance such Indebtedness is permitted under the Convertible Subordinated Note Agreement and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)Convertible Subordinated Notes.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any obligation for borrowed money or any Indebtedness of any kind; provided, that this Section shall not apply to:
(a) create, incur, assume the Loans or suffer to exist any liability for accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsIndebtedness under this Agreement;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this Agreement;
(ii) the Indebtedness existing Indebtedness on as of the date of this Agreement, Closing Date as set forth on SCHEDULE 7.1in Schedule 5.8 hereto (and any extension, including any extensions renewal or renewals refinancing thereof so long as the principal amount thereof does not increase after the Closing Date or a reduction of the Indebtedness (provided that there is no increase more than 10% in the amount of such Indebtedness or other significant change remaining weighted average life to maturity thereof (computed in the terms of such Indebtednessaccordance with standard financial practice));
(iiic) Indebtedness (i) capital leases of (A) any direct or indirect subsidiary Company for the lease of PMC to another subsidiary of PMCfixed assets, and (Bii) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one additional Indebtedness of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money Subsidiaries to any Person (other than Lenderanother Company) so long as the aggregate principal amount of all such Indebtedness, for all Companies, outstanding at any time pursuant to this subpart (c) does not exceed an amount equal to twenty percent (20%) of Consolidated Net Worth, based upon the financial statements of Borrower for the most recently completed fiscal quarter;
(d) loans by a Company (other than the Receivables Subsidiary) to another Company (other than the Receivables Subsidiary);
(e) Indebtedness under any Hedge Agreement;
(i) Indebtedness of the Receivables Subsidiary in connection with the Permitted Receivables Facility so long as the funded amount, together with any other Indebtedness thereunder, does not exceed One Hundred Million Dollars ($100,000,000) at any time, and (ii) Indebtedness in the form of unpaid purchase price for Receivables Related Assets owing from the Receivables Subsidiary to Borrower;
(g) additional unsecured Indebtedness of Borrower, to the extent not otherwise permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtednesspursuant to subparts (a) through (f) hereof, prepayment or other exception set forth above shall be permitted to be created only so long as (i) both prior to the incurrence of any such Indebtedness and after giving effect thereto, Borrower shall be in compliance with Section 5.7(a) hereof, and (ii) no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Defaultexist or immediately thereafter shall begin to exist.
Appears in 1 contract
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans or other credit granted to, assume or suffer to exist Capitalized Lease Obligations entered into by, any liability Company for accounts payable to trade creditors the purchase or lease of fixed assets (and current operating expenses refinancings of such loans, credit or Capitalized Lease Obligations), which loans, credit and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Twenty Million Dollars (other than for borrowed money$20,000,000) which are aged more than one hundred eighty at any time outstanding;
(180c) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not increase after the Closing Date);
(d) loans to, and guaranties of Indebtedness of, a Company from a Company so long as each case incurred such Company is a Credit Party;
(e) loans to, and guaranties of Indebtedness of, a Foreign Subsidiary by a Credit Party in an aggregate amount not to exceed Fifteen Million Dollars ($15,000,000) at any time outstanding;
(f) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bg) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except[Intentionally Omitted]; and
(ih) liabilities created by or pursuant other unsecured Indebtedness, in addition to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiarylisted above, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
an aggregate principal amount for all Companies not to exceed Twenty Million Dollars (iv$20,000,000) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)outstanding.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower The Company will not:
(a) , and will not permit any of its Subsidiaries to create, incur, assume or suffer to exist any liability for Borrowed Money except: (i) indebtedness to the Company and any of its Subsidiaries, (ii) indebtedness of the Company and any of its Subsidiaries secured by mortgages, encumbrances or liens expressly permitted by Section 9.3; (iii) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than one hundred eighty twenty (180120) days from the billing date or more than sixty thirty (6030) days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower the Company and any of its Subsidiaries shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower the Company and any of its Subsidiaries and its independent accountants;
; (biv) createborrowings incurred in the ordinary course of its business and not exceeding $10,000.00 in the aggregate outstanding at any one time, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness"v) except
(i) liabilities created by or pursuant to this Agreement;
(ii) capital leases existing Indebtedness on as of the date of this Agreement, as set forth and (vi) capital equipment leases and/or purchase money conditional sale contracts entered into following the date of this Agreement provided that the aggregate amount obligated on SCHEDULE 7.1, including any extensions or renewals all such capital equipment leases and/or purchase money conditional sale contracts does not exceed $300,000 per Company facility without the prior written consent of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMCPurchaser. The Company will not, and (B) will not permit any of PMC its Subsidiaries to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lenderthe Company, to the extent permitted by this Agreement or any subsequent agreement between Borrower the Company and Lenderthe Purchaser). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Samples: Note Purchase Agreement (Sunlink Health Systems Inc)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), assume or suffer to exist which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies, when combined with Indebtedness permitted under subsection (f) hereof, shall not exceed Twenty Million Dollars ($20,000,000) at any liability for accounts payable to trade creditors and current operating expenses time outstanding;
(other than for borrowed moneyc) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof so long as the principal amount thereof shall not be increased after the Closing Date);
(d) loans to a Company (including Foreign Subsidiaries) from a Company so long as each case incurred such Company is a Credit Party;
(e) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(f) loans to a Company pursuant to state or other Governmental Authority industrial revenue bond financing, so long as the aggregate principal amount of all such financing for all Companies, when combined with Indebtedness permitted under subsection (b) createhereof, incurshall not exceed Twenty Million Dollars ($20,000,000) at any time outstanding;
(g) Indebtedness of a Mexican Subsidiary (whether or not secured by assets of such Foreign Subsidiary) up to the aggregate principal amount, assume or suffer for all Mexican Subsidiaries of Twenty Million Dollars ($20,000,000), provided that neither Borrower nor any Domestic Subsidiary shall be a Guarantor of such obligations;
(h) unsecured Subordinated Indebtedness created pursuant to exist any liability for Borrowed Money documentation in form and substance reasonably satisfactory to Agent, not to exceed Twenty-Five Million Dollars ("$25,000,000), so long as the proceeds are applied in accordance with Section 2.12(c)(ii) hereof and Agent approves the form and substance of the documentation prior to the incurrence of the Indebtedness") except;
(i) liabilities created by or pursuant to this Agreement;Permitted Mexican Subsidiary Loans and Investments; and
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iiij) Indebtedness of (A) VCS Properties, LLC solely secured by any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities Valley City Steel Assets in an acquisition, and amount not to exceed Five Million Dollars (D$5,000,000) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)outstanding.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Samples: Credit and Security Agreement (Shiloh Industries Inc)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided, that this Section 5.8 shall not apply to the following:
(a) create, incur, assume the Loans or suffer to exist any liability for accounts payable to trade creditors and current operating expenses other Indebtedness under this Agreement;
(other than for borrowed moneyb) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in each case addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof so long as the principal amount thereof shall not be increased after the Closing Date);
(c) loans to a Company from a Company;
(d) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within not for speculative purposes; and
(e) additional Indebtedness pursuant to the following subsections (i), (ii) and (iii) so long as (A) no Default or Event of Default shall then exist or immediately after incurring such time periodIndebtedness will exist, unless (B) the same are being contested Companies shall be in good faith compliance with the financial covenants set forth in Section 5.7 hereof both immediately before and by appropriate and lawful proceedingsafter giving pro forma effect to the incurrence of such Indebtedness, and Borrower shall have set aside (C) such reservesIndebtedness does not exceed the aggregate, if anyfor all such Indebtedness under all three such subsections, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
of Seventy-Five Million Dollars (b$75,000,000) create, incur, assume or suffer to exist at any liability for Borrowed Money ("Indebtedness") excepttime outstanding:
(i) liabilities created any loans granted to or Capitalized Lease Obligations entered into by any Company for the purchase or pursuant to this Agreementlease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or leased;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in Receivables Subsidiary under the amount Permitted Receivables Facility, so long as Borrower provides a copy of the documents evidencing such Indebtedness or other significant change in the terms of such Indebtedness);transaction to Agent; and
(iii) additional unsecured Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)Companies.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Bea Systems Inc)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), assume which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or suffer to exist leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Twenty-Five Million Dollars ($25,000,000) at any liability for accounts payable to trade creditors time outstanding;
(c) the Indebtedness existing on the Closing Date as set forth on Schedule 5.8 hereto (and current operating expenses any extension, renewal, replacement or refinancing thereof so long as the principal amount thereof shall not be increased (other than for borrowed moneyan increase in the principal amount of such Indebtedness due to the payment of premiums, fees and costs associated with such extension, renewal, replacement or refinancing) which are aged more than one hundred eighty after the Closing Date);
(180d) days from the billing date or more than sixty Indebtedness of a Credit Party to any other Credit Party;
(60e) days from the due dateIndebtedness under any Hedge Agreement, in each case incurred so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bf) createPermitted Foreign Subsidiary Loans and Investments;
(g) secured Indebtedness of a Foreign Subsidiary in an aggregate principal amount for all Foreign Subsidiaries not to exceed Five Million Dollars ($5,000,000) at any time outstanding;
(h) unsecured Subordinated Indebtedness, incurwith terms reasonably acceptable to Agent and the Required Lenders, assume or suffer in an aggregate principal amount for all Companies not to exist exceed Two Hundred Fifty Million Dollars ($250,000,000) at any liability for Borrowed Money ("Indebtedness") excepttime outstanding; and
(i) liabilities created by or pursuant other unsecured Indebtedness, in addition to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiarylisted above, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
an aggregate principal amount for all Companies not to exceed Ten Million Dollars (iv$10,000,000) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)outstanding.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any obligation for borrowed money or any Indebtedness of any kind; provided, that this Section shall not apply to:
(a) create, incur, assume the Loans or suffer to exist any liability for accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsIndebtedness under this Agreement;
(b) createthe Indebtedness (whether outstanding or committed) that exists as of the Closing Date as set forth in Schedule 5.8 hereto (and any extension, incurrenewal or refinancing thereof so long as the principal amount thereof does not increase after the Closing Date);
(c) the unsecured Indebtedness of Borrower under the Note Purchase Agreement in an original principal amount not to exceed Fifty Million Dollars ($50,000,000);
(d) unsecured Indebtedness of Borrower under the Credit Agreement between Borrower and National City Bank, assume dated October 11, 2000, in an aggregate outstanding principal amount not in excess of Sixteen Million Dollars ($16,000,000);
(e) the unsecured Indebtedness of Borrower under the 2001 Note Purchase Agreement in an aggregate principal amount not to exceed One Hundred Million Dollars ($100,000,000);
(f) the unsecured Indebtedness of Borrower owing to Bank of Tokyo-Mitsubishi Trust Company up to the Dollar Equivalent of Three Billion Japanese Yen (¥3,000,000,000);
(g) loans or suffer capital leases to exist any liability Company for Borrowed Money the purchase or lease of fixed assets, which loans or leases are secured by the assets being purchased or leased, so long as the aggregate principal amount of all such loans and leases for all Companies does not exceed the greater of ("Indebtedness"i) exceptThirty-Five Million Dollars ($35,000,000) and (ii) an amount equal to four percent (4%) of Consolidated Total Assets at any time;
(h) loans by a Domestic Company (other than the Receivables Subsidiary) to another Domestic Company (other than the Receivables Subsidiary);
(i) liabilities created unsecured loans by or pursuant a Foreign Subsidiary to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person Domestic Company (other than Lender, to the extent permitted by this Agreement Receivables Subsidiary) or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.another Foreign Subsidiary;
Appears in 1 contract
Samples: Credit Agreement (Nordson Corp)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided, that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit or any other Indebtedness under this Agreement;
(b) any loans granted to or capital leases entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or capital leases), assume which loans and capital leases shall only be secured by the fixed assets being purchased or suffer to exist leased, so long as the aggregate principal amount of all such loans and leases for all Companies shall not exceed Thirty Million Dollars ($30,000,000) at any liability for accounts payable to trade creditors and current operating expenses time outstanding;
(other than for borrowed moneyc) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due dateIndebtedness under any Hedge Agreement, in each case incurred so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bd) createthe Indebtedness existing on the Closing Date, incurin addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, assume as set forth in Schedule 5.8 hereto (and any extension, renewal or suffer to exist any liability for Borrowed Money ("Indebtedness") exceptrefinancing thereof so long as the principal amount thereof shall not be increased after the Closing Date);
(ie) liabilities created by or pursuant loans to a Company from a Company;
(f) guaranties of Indebtedness permitted under this Agreement;
(g) additional unsecured Indebtedness of the Companies, to the extent not otherwise permitted pursuant to subsections (a) through (f) above, so long as (i) no Default or Event of Default shall then exist or immediately after incurring such Indebtedness will exist, (ii) existing Indebtedness on the date of this Agreement, as Companies shall be in compliance with the financial covenants set forth on SCHEDULE 7.1, including any extensions or renewals of in Section 5.7 hereof both immediately before and after giving pro forma effect to the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms incurrence of such Indebtedness);
, and (iii) such Indebtedness is permitted to be incurred under the Note Agreement; or
(h) additional unsecured Indebtedness of the Companies for up to Two Hundred Twenty-Six Million Euros ((euro)226,000,000) incurred (i) in connection with Borrower's corporate organizational purposes, (ii) no more frequently than three times during the Commitment Period and once in any twelve month period, and (iii) in a single transaction or related series of transactions, to the extent not otherwise permitted pursuant to subsections (a) through (f) above, and so long as (A) any direct no Default or indirect subsidiary Event of PMC to another subsidiary of PMC, and (B) of PMC to any Default shall then exist or immediately after incurring such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basiswill exist, (B) that is incurred the Companies shall be in connection compliance with interest rate protection agreementsthe financial covenants set forth in Section 5.7 hereof both immediately before and after giving pro forma effect to the incurrence of such Indebtedness, (C) that such Indebtedness is permitted to be incurred as a result of under the assumption of liabilities in an acquisition, Note Agreement and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph principal shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues be or be provided to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: outstanding for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)longer than three Business Days.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Schulman a Inc)
Borrowing. Borrower will not:
(a) not create, incur, assume or suffer to exist any liability for Borrowed Money except: (i) indebtedness to Lender; (ii) indebtedness of Borrower not to exceed $250,000.00 of new debt in any calendar year secured by mortgages, encumbrances or liens expressly permitted by Section 7.3 or by the definition of Permitted Liens; (iii) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than one hundred eighty twenty (180120) days from the billing date or more than sixty thirty (6030) days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
; (iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, borrowings incurred in the ordinary course of its business and not exceeding $50,000.00 in the aggregate outstanding at any one time; (v) the indebtedness disclosed on SCHEDULE 7.1, and any renewals, extensions or refinancings of such indebtedness; (vi) indebtedness approved by Lender in its reasonable discretion that is expressly subordinated to the Obligations and is incurred in connection with a transaction permitted pursuant to Section 7.4; and (vii) indebtedness owed by one entity comprising Borrower to another entity comprising Borrower.. Borrower will not make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Samples: Loan and Security Agreement (Allion Healthcare Inc)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided, that this Section shall not apply to:
(a) create, incur, assume the Loans or suffer any other Indebtedness incurred to exist any liability for accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are aged more than one hundred eighty (180) days from Agent or the billing date or more than sixty (60) days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or Banks pursuant to this Agreement;
(iib) Indebtedness under any Hedge Agreement;
(c) the Indebtedness existing Indebtedness on as of the date of this Agreement, Closing Date as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness)Schedule 5.8 hereto;
(iiid) Indebtedness loans to a Company from a Company so long as each such Company is Borrower or a Guarantor of (A) any direct Payment, or indirect subsidiary of PMC loans to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Canadian Borrower under this Agreement or under one of the Affiliated Loan Agreementsfrom a Canadian Borrower;
(ive) secured Indebtedness (Aincluding any capital lease obligation) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred so long as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate amount of all such Indebtedness described in this subparagraph shall not outstanding at any time for all Companies does not exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues an amount equal to be in excess twenty percent (20%) of the Overall Maximum Loan AmountConsolidated Net Worth of the Companies, based upon the $25,000,000.00 limit may be increased as follows: financial statements of the Companies for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).most recently completed fiscal quarter; or
(cf) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lenderadditional unsecured Indebtedness of a Company, to the extent not otherwise permitted by this Agreement or pursuant to subparts (a) through (e) hereof; provided, however, that (i) if the Companies incur any subsequent agreement between Borrower Indebtedness to any creditor in an aggregate principal amount in excess of an amount equal to ten percent (10%) of the Consolidated Net Worth of the Companies (based upon the financial statements of the Companies for the most recently completed fiscal quarter), and Lender). Any permitted (ii) any Company (other than Borrower) is liable for such Indebtedness, prepayment then, upon request of Agent, Borrower shall cause each Person that is a party to any document, instrument or other exception set forth above agreement evidencing such Indebtedness to enter into an intercreditor agreement, in form and substance satisfactory to Agent and the Majority Banks, which intercreditor agreement shall be permitted contain terms and conditions substantially similar to be created only so long as no Event of Default has occurred the terms and is continuing under this Agreement at conditions contained in the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of DefaultIntercreditor Agreement.
Appears in 1 contract
Samples: Credit Agreement (Applied Industrial Technologies Inc)
Borrowing. Borrower will not:
(a) not create, incur, assume or suffer to exist any liability for Borrowed Money except: (i) indebtedness to Lender; (ii) indebtedness of Borrower secured by mortgages, encumbrances or liens expressly permitted by Section 7.3; (iii) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than one hundred eighty twenty (180120) days from the billing date or more than sixty (60) days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
; (iv) Indebtedness (A) that is secured by equipment lease and purchase money security interests interest transactions up to $3,000,000 for the first calendar quarter of 2001; (v) after the first calendar quarter of 2001 and through the first calendar quarter of 2002, equipment lease and purchase money transactions up to $4,000,000 per calendar quarter provided that Borrower achieves positive Net Income (in accordance with GAAP, but prior to any allocation for shared corporate overhead expenses with Guarantor) for the preceding calendar quarter; (v) after the first calendar quarter of 2002 equipment lease and purchase money transactions up to $4,000,000 per calendar quarter provided that Borrower achieves positive Net Income (in accordance with GAAP) for the preceding calendar quarter; and (vii) borrowings incurred in the ordinary course of its business and not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred 75,000.00 in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall outstanding at anyone time. Borrower will not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower will notshall not (nor shall it permit any of its Subsidiaries to) create, incur, or assume, directly or indirectly, any Debt, except for:
(a) create, incur, assume or suffer indebtedness of Borrower arising under this Credit Agreement and the other Loan Documents;
(b) trade payables arising in the ordinary course of business;
(c) Capital Leases in existence from time to exist any liability for accounts payable to trade creditors and time;
(d) current operating expenses liabilities (other than trade payables or for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due date, in each case incurred in the ordinary course of business business;
(e) the Pari Passu Loans;
(f) secured Debt (other than Bank Debt and paid within such time periodthe Pari Passu Loans, unless but including amounts owing under the same are being contested in good faith and by appropriate and lawful proceedingsXxxxxx Loan, under the Xxxxxxx Loan, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by under the Comerica Loan) in an aggregate amount at any time outstanding of up to the sum of (i) eighty-five percent (85%) of the book value of the outstanding accounts receivable of Borrower and its independent accountantsSubsidiaries (as such account receivable would be shown on a consolidated balance sheet of Borrower and its Subsidiaries prepared in accordance with GAAP), less allowance for doubtful accounts, plus (ii) seventy-five percent (75%) of the higher of book value or fair market value, determined in accordance with GAAP, of the assets of Borrower and its Subsidiaries, but excluding from such calculation under this clause (ii), the assets covered by clause (i), the Collateral, and good will;
(bg) createunsecured Debt in any amount provided that no more than $50,000,000.00 of unsecured indebtedness outstanding at any time (but excluding from such restriction, incurthe Senior Unsecured Notes, assume or suffer the Senior Subordinated Notes, the Grower Settlement Agreements, and the Foreign Subsidiary Debt) may provide for scheduled principal payments prior to exist the Maturity Date, and provided that with respect to any liability for Borrowed Money ("Indebtedness") exceptindividual unsecured indebtedness of greater than $10,000,000.00 incurred after the Closing Date, Borrower must demonstrate, to the satisfaction of the Administrative Agent, compliance with the covenants set forth at Section 9.12 hereof, on a pro forma basis taking into account such additional indebtedness, before such indebtedness is incurred; and
(ih) liabilities created by loans between Subsidiaries or pursuant to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, between Borrower and (B) of PMC to any such subsidiarySubsidiaries, in each case where either (i) in the ordinary course and pursuant to the reasonable requirements of Borrower’s business and consistent with demonstratable past practices; provided that any such subsidiary is a loans to Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is are expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate prior payment in full in cash of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDEDof Borrower’s indebtedness, HOWEVER, that so long as PMC's cash balance is obligations and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, liabilities to the extent permitted by this Agreement or any subsequent agreement between Borrower Administrative Agent and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing the Syndication Parties under this Credit Agreement at and the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Defaultother Loan Documents; or (ii) in connection with a Receivables Securitization Program.
Appears in 1 contract
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided, that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit or any other Indebtedness under this Agreement;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or capital leases), assume or suffer to exist any liability for accounts payable to trade creditors which loans and current operating expenses capital leases shall only be secured by the fixed assets being purchased;
(other than for borrowed moneyc) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in each case addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof so long as the principal amount thereof shall not be increased after the Closing Date);
(d) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(be) createIndebtedness incurred by Foreign Subsidiaries in an aggregate amount not to exceed, incurfor all such Indebtedness of all Foreign Subsidiaries, assume Twenty-Five Million Dollars ($25,000,000) at any time outstanding, provided that such Indebtedness may only be guaranteed by the Credit Parties up to an aggregate amount of Twenty-Five Million Dollars ($25,000,000) when added to any guaranties by Credit Parties of the Indebtedness permitted under subsection (g) hereof;
(f) any loans from a Company to a Company permitted under Section 5.11 hereof;
(g) Indebtedness of a Foreign Subsidiary under an accounts receivable facility whereby no portion of the Indebtedness or suffer any other obligation (contingent or otherwise) under such facility is guaranteed by any other Company (subject to exist the proviso in subsection (e) hereof) and no Company (other than such Foreign Subsidiary) provides, either directly or indirectly, any liability for Borrowed Money credit support of any kind ("Indebtedness"other than a guaranty permitted under subsection (e) excepthereof) in connection with such facility;
(h) Subordinated Indebtedness with terms and documentation in form and substance acceptable to Agent;
(i) liabilities created by or pursuant loans to this AgreementPercepta and its Subsidiaries in an aggregate amount at any time outstanding of up to ten percent (10%) of revenues of Percepta and its Subsidiaries for the most recently completed four fiscal quarters;
(iij) existing Indebtedness on the date loans to a joint venture (in which a Company holds an equity interest) in an aggregate amount at any time outstanding of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals up to ten percent (10%) of the Indebtedness (provided that there is no increase in the amount revenues of such Indebtedness or other significant change in joint venture for the terms of such Indebtedness)most recently completed four fiscal quarters;
(iiik) Indebtedness of a Company that has been acquired by the Companies pursuant to Section 5.13 hereof, which Indebtedness (Ai) any direct or indirect subsidiary of PMC to another subsidiary of PMCis not secured, except by a security interest permitted under Section 5.9(h) hereof, and (Bii) was not incurred in anticipation of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan AgreementsAcquisition;
(ivl) Indebtedness of a Company incurred pursuant to synthetic leases;
(Am) Indebtedness of a Company that is secured owing to any governmental entity, including, without limitation, industrial revenue bonds and grants issued by purchase money security interests not exceeding any governmental entity to such Company which may constitute Indebtedness until the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result completion of the assumption of liabilities in an acquisitiontasks related to such grants; provided, and (D) however, that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not must be either (i) unsecured, (ii) only secured by the fixed assets purchased with proceeds from such Indebtedness, or (iii) secured with assets (other than fixed assets) that are specifically related to the “project” that is the subject of the grant or financing, securing no more than the aggregate amount, for all such Indebtedness of all Companies, of Five Million Dollars ($5,000,000) at any time outstanding; and
(n) Indebtedness not otherwise described in or subject to subparts (a) through (k) hereof in an aggregate principal amount not to exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar Five Million Dollars ($1.005,000,000) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)at any time outstanding.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided, that this Section shall not apply to:
(a) create, incur, assume the Loans or suffer any other Indebtedness incurred to exist any liability for accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are aged more than one hundred eighty (180) days from Agent or the billing date or more than sixty (60) days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or Banks pursuant to this Agreement;
(iib) existing Indebtedness on the date of this under any Hedge Agreement, so long as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness)Hedge Agreement has not been entered into for speculative purposes;
(iiic) Indebtedness (including any capital lease obligation) secured by the Liens described in Section 5.9(d) hereof, so long as the aggregate amount of all such Indebtedness outstanding at any time for all Companies does not exceed an amount equal to ten percent (10%) of the Consolidated Net Worth of Borrower, based upon the financial statements of Borrower for the most recently completed fiscal quarter;
(d) loans to a Company from a Company so long as each such Company is Borrower or a Guarantor of Payment;
(e) Indebtedness of Borrower or any Foreign Subsidiary (Aincluding any contingent reimbursement obligations of Borrower in connection with such Indebtedness) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreementsletters of credit (or demand guarantees), (C) that is incurred so long as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate principal amount of all such Indebtedness described in this subparagraph shall does not exceed Ten Million Dollars ($10,000,000) at any time exceed $25,000,000.00; PROVIDEDtime;
(f) loans from Borrower to a Subsidiary that is not a Guarantor of Payment, HOWEVER, that so long as PMC's cash balance (i) the aggregate amount of all such loans to such Subsidiary that is and continues to be not a Guarantor of Payment are not in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar Fifteen Million Dollars ($1.0015,000,000), and (ii) the aggregate amount of all such excessloans to all Subsidiaries, the maximum aggregate Indebtedness may increase by fifty cents that are not Guarantors of Payment, are not in excess of Fifty Million Dollars ($0.5050,000,000).; or
(cg) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing additional unsecured Indebtedness of Borrower or future indebtedness for Borrowed Money to any Person (other than Lendera Guarantor of Payment, to the extent not otherwise permitted by this Agreement or any subsequent agreement between pursuant to subparts (a) through (f) hereof, up to an aggregate amount, for all such Indebtedness of Borrower and Lender). Any permitted Indebtednessall Guarantors of Payment, prepayment or other exception set forth above shall be permitted not to be created only so long as no Event of Default has occurred and is continuing under this Agreement exceed Thirty Million Dollars ($30,000,000) at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Defaulttime.
Appears in 1 contract
Samples: Credit Agreement (Steris Corp)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), assume which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or suffer to exist leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Five Million Dollars ($5,000,000) at any liability for accounts payable to trade creditors and current operating expenses time outstanding;
(other than for borrowed moneyc) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof so long as the principal amount thereof shall not be increased after the Closing Date);
(d) loans to a Company from a Company so long as each case incurred such Company is a Credit Party;
(e) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bf) createPermitted Foreign Subsidiary Loans and Investments;
(g) unsecured Subordinated Indebtedness with subordination terms reasonably satisfactory to Agent, incurso long as (i) the aggregate principal amount of all Subordinated Indebtedness for all Companies (including the Subordinated Indebtedness existing as of the Closing Date and referenced on Schedule 5.8 hereto), assume or suffer shall not exceed One Hundred Million Dollars ($100,000,000) at any time outstanding, and (ii) such Subordinated Indebtedness is permitted under the Note Agreement and the Convertible Subordinated Notes;
(h) other Indebtedness (that does not constitute Non-Credit Party Exposure) of Foreign Subsidiaries, in addition to exist the Indebtedness listed above, in an aggregate amount for all Foreign Subsidiaries not to exceed Three Million Dollars ($3,000,000) at any liability for Borrowed Money ("Indebtedness") excepttime outstanding, so long as such Indebtedness is permitted under the Note Agreement and the Convertible Subordinated Notes; and
(i) liabilities created by or pursuant other Indebtedness, in addition to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiarylisted above, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
an aggregate principal amount for all Companies not to exceed Two Million Dollars (iv$2,000,000) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDEDoutstanding, HOWEVER, that so long as PMC's cash balance such Indebtedness is permitted under the Note Agreement and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)Convertible Subordinated Notes.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower The Company covenants that it will not:
(a) , and will not permit any Material Subsidiary to, create, incur, assume or suffer to exist any liability for accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due dateIndebtedness, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except:
(i) liabilities created by Indebtedness under this Agreement or pursuant to this Agreementany Note;
(ii) existing Existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1Schedule 6B, including any extensions extensions, renewals or renewals of the Indebtedness (Permitted Refinancing thereof; provided that there is no increase in the amount of such Indebtedness thereof or other significant change in the terms of such Indebtedness)thereof unless otherwise specified on Schedule 6B;
(iii) Indebtedness of the Company and its Domestic Subsidiaries with respect to Purchase Money Security Interests and capitalized leases as and to the extent permitted under clause (viii) or clause (xx) of the definition of Permitted Lien with respect to the aggregate amount of unpaid principal loans and deferred payments (including, without limitation, imputed principal under capitalized leases);
(a) The Required Interest Rate Hedge (as defined in paragraph 5M of this Agreement prior to Amendment No. 5 to this Agreement), (b) any other Interest Rate Hedge approved by the Required Holders; or (c) any other Indebtedness under any Other Lender Provided Financial Services Product or under any currency swap or hedging arrangement or commodity hedging arrangement approved in writing by the Required Holders; provided, however, the Intercreditor Agreement shall be in full force and effect with respect thereto;
(v) Indebtedness under the Credit Agreement and the Mexican Credit Agreement in an aggregate outstanding principal amount not to exceed $487,000,000;
(vi) Indebtedness of a Transaction Party to another Transaction Party which is subordinated pursuant to the Intercompany Subordination Agreement; and Indebtedness of a Transaction Party owing to a Subsidiary which is not a Transaction Party and which is subordinated on terms and conditions reasonably satisfactory to the Required Holders;
(vii) Indebtedness secured by a Lien on real property, improvements to real property and fixtures permitted under clause (xix) of the definition of Permitted Liens;
(viii) Indebtedness secured by a Lien permitted under clause (xx) of the definition of Permitted Liens with respect to Permitted Acquisitions;
(ix) Indebtedness that is subordinated in right of payment to the payment of the Notes on terms and conditions acceptable to Required Holders;
(x) Guaranties permitted under paragraph 6D;
(xi) Indebtedness for employer contributions to the ESOP not in excess of limitations set forth in Section 404 of the Code;
(xii) Indebtedness arising under the Company’s stock repurchase liability under the ESOP;
(xiii) unsecured Indebtedness that (A) matures after, and does not require any direct scheduled amortization or indirect subsidiary other scheduled amortizations or other scheduled payments of PMC principal prior to another subsidiary the latest maturity date of PMCany outstanding Notes (it being understood that such Indebtedness may have mandatory prepayment, repurchase or redemption provisions satisfying the requirement of clause (B) hereof), and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, has terms and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person conditions (other than Lenderinterest rate, redemption premiums and subordination terms), taken as a whole, that are not materially less favorable to the extent permitted by this Agreement Company than the terms and conditions customary at the time for high-yield debt securities issued in a public offering (or any subsequent agreement between Borrower if applicable, high-yield subordinated debt securities so issued); provided, however, that both immediately prior and Lender). Any permitted Indebtednessafter giving effect to the incurrence thereof, prepayment (x) no Default or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred shall exist or result therefrom and is continuing under this Agreement at (y) the time Company shall be in compliance with the covenants set forth in paragraph 6A(1) and paragraph 6A(2); and provided further that the Company shall make an offer to prepay the Notes from the proceeds of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Defaultunsecured Indebtedness in accordance with paragraph 4G above; and
(xiv) other unsecured Indebtedness in an aggregate amount not to exceed $50,000,000.
Appears in 1 contract
Samples: Private Shelf Agreement (Advanced Drainage Systems, Inc.)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement and the other Loan Documents;
(b) any loans granted to, assume or suffer Capitalized Lease Obligations entered into by, any Company after the date of this Agreement for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Twenty Million Dollars ($20,000,000) at any time outstanding, subject in each case to exist the provisions of Section 1.2(c);
(c) the Indebtedness existing on the Closing Date as set forth in Schedule 5.8 hereto (and any liability extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not increase after the Closing Date);
(d) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and not for accounts payable speculative purposes;
(e) Indebtedness incurred in the ordinary course of business in respect of credit cards, credit card processing services, debit cards, stored value cards, commercial cards (including so-called “purchase cards”, “procurement cards” or “p-cards”), or cash management services, in each case, in an amount not to trade creditors exceed Five Million Dollars ($5,000,000) outstanding at any one time;
(f) loans to, and current operating guaranties of Indebtedness of, a Company from a Company so long as each such Company is not a Credit Party;
(g) (i) loans to, and guaranties of Indebtedness of, a Company from a Company so long as each such Company is a Credit Party (including intercompany loans from Parent to Avid (utilizing past, current, or future equity proceeds raised by Parent) and intercompany loans from Avid to Parent to be used by Parent for its expenses (including legal, accounting and filing costs and other overhead expenses)), and (ii) loans to, and guaranties of Indebtedness of, a Company that is not a Credit Party from a Company that is a Credit Party so long as the aggregate outstanding principal amount thereof does not exceed One Million Dollars ($1,000,000) at any time;
(h) unsecured Indebtedness, (i) arising under Convertible Debt Securities issued on or after the Closing Date, so long as (A) the aggregate outstanding principal amount of such Indebtedness does not exceed Two Hundred Fifty Million Dollars ($250,000,000) at any time outstanding, (B) the stated maturity date for such Indebtedness shall be no earlier than ninety (90) days after the end of the Commitment Period, (C) the principal amount of such Indebtedness shall not be subject to any regularly scheduled amortization or sinking fund payments prior to the maturity date described in clause (B) above (provided, for the avoidance of doubt, interest-only payments are permitted if in accordance with Section 5.15(c) hereof), and (ii) and any extension, renewal or refinancing of such Convertible Debt Securities but only to the extent that the principal amount thereof, when combined with all other Convertible Debt Securities issued pursuant to this subpart (h), does not exceed Two Hundred Fifty Million Dollars ($250,000,000);
(i) Indebtedness incurred in connection with cash collateralized letters of credit (other than Letters of Credit issued under the Revolving Credit Commitment) in an aggregate amount not to exceed One Million Dollars ($1,000,000) at any time outstanding;
(j) Indebtedness incurred by a Company arising from (i) investments permitted pursuant to Sections 5.11(vi) and (viii) hereof, (ii) agreements providing for borrowed moneyindemnification, adjustment of purchase price or similar obligations, (iii) which are aged more than one hundred eighty guaranties or letters of credit, surety bonds or performance bonds incurred in the ordinary course of business in connection with bonding requirements of Financial Services Laws, and (180iv) days from agreements providing for indemnification or performance obligations, guaranties or letters of credit, surety bonds or performance bonds, or other related commitments incurred in the billing date ordinary course of business, and including in connection with the provision of money movement services provided by Avid or more than sixty (60) days from another Company or in connection with Invoice Accelerator Products and Spend Management, including third party services providers including financial institutions, commercial card issuers, and check printers, securing the due dateperformance of a Company pursuant to contractual obligations, in each case connection with transactions not prohibited hereunder;
(k) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business and paid within such time period, unless the same are being contested not in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, connection with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsan Acquisition permitted hereunder;
(bl) createIndebtedness in respect of netting services, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this Agreementoverdraft protections and otherwise in connection with deposit accounts;
(iim) existing Indebtedness on guaranties in the date ordinary course of this Agreementbusiness of the obligations of buyers, as set forth on SCHEDULE 7.1suppliers, franchisees and licensees of a Company, including any extensions those relating to the provision of money movement services provided by Avid or renewals another Company;
(n) Indebtedness consisting of the Indebtedness (provided that there is no increase financing of insurance premiums of a Company in the ordinary course of business so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the year in which such Indebtedness is incurred and such Indebtedness is outstanding only during such year;
(o) the Xxxxxxxx Properties Seller Debt in an aggregate principal amount not to exceed Seventeen Million Two Hundred Thousand Dollars ($17,200,000), together with any interest or other significant change amounts accruing thereon in accordance with the terms and conditions of the Xxxxxxxx Properties Seller Notes;
(p) Subordinated Indebtedness created pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent, and on terms reasonably satisfactory to the Administrative Agent, in an aggregate principal amount for all Companies not to exceed Twenty Million Dollars ($20,000,000) at any time outstanding (or such Indebtednessgreater amount agreed to in writing by the Required Lenders);
(iiii) Indebtedness of earn-outs (Aor other deferred payments) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreementsAcquisitions permitted hereunder in an amount not to exceed Seventy-Five Million Dollars ($75,000,000) during the Commitment Period in the aggregate for all Acquisitions permitted hereunder, and (Cii) that is Indebtedness assumed or refinanced in connection with an Acquisition permitted hereunder not to exceed an aggregate principal amount of Twenty Million Dollars ($20,000,000) at any time outstanding; provided that, in with respect to the foregoing clause (ii), such underlying Indebtedness was not incurred as a result of of, or in contemplation of, such Acquisition permitted hereunder;
(r) other unsecured Indebtedness, in addition to the assumption of liabilities Indebtedness listed above and below, in an acquisition, and aggregate principal amount for all Companies not to exceed Twenty-Five Million Dollars (D$25,000,000) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's outstanding;
(s) Indebtedness incurred in connection with cash balance is and continues to be in excess management services of the Overall Maximum Loan Amount, Companies to support ordinary course of business transaction processing of the $25,000,000.00 limit may be increased as follows: for each one dollar Companies in connection with the Companies’ Spend Management (or related successor) product in an aggregate amount not to exceed Fifty Million Dollars ($1.0050,000,000) outstanding at any one time (or such greater amount agreed to in writing by the Administrative Agent, in its sole discretion);
(t) in addition to the Indebtedness listed in subpart (s) above, Indebtedness incurred in connection with cash management services of such excess, the maximum Companies to support ordinary course of business transaction processing of the Companies in an aggregate Indebtedness may increase by fifty cents amount not to exceed Twenty-Five Million Dollars ($0.5025,000,000) outstanding at any one time (or such greater amount agreed to in writing by the Administrative Agent, in its sole discretion).; and
(cu) except Indebtedness incurred in connection with a Company’s buyout of the HQ Lease and/or purchase of the premises that are the subject of the HQ Lease as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.pursuant to
Appears in 1 contract
Samples: Credit and Security Agreement (AvidXchange Holdings, Inc.)
Borrowing. Borrower will not:No Company shall create, incur or have outstanding any obligation for borrowed money or any Indebtedness of any kind; provided, that this Section shall not apply to any of the following (without duplication):
(a) createthe Loans and all other Indebtedness now owing by Borrower to Agent and the Banks under this Agreement;
(b) unsecured current Indebtedness (including the funded and/or unfunded reserves for self insurance liabilities, incurbut excluding Indebtedness incurred to a bank or other financial institution customarily engaged in the business of lending money, assume or suffer except as permitted pursuant to exist any liability for accounts payable to trade creditors and current operating expenses subpart (other than for borrowed moneyd) which are aged more than one hundred eighty (180below) days from incurred by the billing date or more than sixty (60) days from the due date, in each case incurred Companies in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsbusiness;
(bc) createIndebtedness for taxes, incurassessments and governmental charges to the extent that payment thereof shall not be required to be made by Section 5.2(a) hereof;
(d) unsecured Indebtedness incurred under lines of credit established by Agent or other financial institutions customarily engaged in the business of lending money; provided, assume however, that the maximum amount of Indebtedness permitted by this subpart (d) shall at no time exceed Twenty Million Dollars ($20,000,000);
(e) unsecured Subordinated Indebtedness evidenced by promissory notes issued by Borrower to employees or suffer former employees in partial payment for common shares redeemed by Borrower so long as the aggregate principal amount of such Indebtedness does not exceed Ten Million Dollars ($10,000,000) at any time;
(f) loans to exist a Company from a Company so long as each such Company is Borrower or a Guarantor of Payment;
(g) Indebtedness to insurance companies secured by a pledge of the cash surrender value of life insurance policies owned by Borrower or any liability for Borrowed Money of its Subsidiaries; provided, however, that the maximum amount of Indebtedness permitted by this subpart ("Indebtedness"g) exceptshall at no time exceed the cash surrender value of the life insurance policies pledged with respect thereto;
(h) unsecured Indebtedness arising pursuant to the deferment of payment of any insurance premiums by Borrower;
(i) liabilities created by any (i) loans granted to a Company for the purchase of fixed assets, or pursuant to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is incurred by a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred Company in connection with interest rate protection agreementsany capital lease, so long as the aggregate amount of all such loans and capital leases for all Companies does not exceed Twelve Million Dollars (C$12,000,000) that is at any time; and
(j) unsecured Subordinated Indebtedness of Borrower incurred as to a result seller to finance all or part of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations Acquisition permitted pursuant to written terms reasonably acceptable to Lendersection 5.13 hereof, but so long as the aggregate outstanding amount of all such Indebtedness described in this subparagraph shall for all such Acquisitions does not exceed Ten Million Dollars ($10,000,000) at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)time.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), assume which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or suffer to exist leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Twenty-Five Million Dollars ($25,000,000) at any liability for accounts payable to trade creditors and current operating expenses time outstanding;
(other than for borrowed moneyc) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not be increase after the Closing Date);
(d) loans to a Company from a Company so long as each case incurred such Company is a Credit Party;
(e) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bf) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this AgreementPermitted Foreign Subsidiary Loans and Investments;
(iig) existing unsecured loans to Foreign Subsidiaries organized in Canada up to an aggregate amount of Fifty Million Dollars ($50,000,000), so long as such loans shall be subject to financial covenants and defaults that are no more restrictive than the Loan Documents; and
(h) other unsecured Indebtedness, in addition to the Indebtedness on listed above, in an aggregate principal amount for all Companies not to exceed Twenty-Five Million Dollars ($25,000,000) at any time outstanding, provided that the date financial covenants and defaults under the agreements relating to such Indebtedness (for an aggregate amount of Indebtedness over One Million Dollars ($1,000,000)) shall not be more restrictive than any such provisions of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Samples: Credit Agreement (IHS Inc.)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to, assume or suffer Capitalized Lease Obligations entered into by, any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Ten Million Dollars ($10,000,000) at any time outstanding;
(c) the Indebtedness existing on the Closing Date, in addition to exist the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any liability for accounts payable extension, renewal or refinancing thereof but only to trade creditors the extent that the principal amount thereof does not increase after the Closing Date);
(d) Indebtedness of any Person in existence on the date on which such Person becomes a Company, so long as (i) such Indebtedness is not incurred or created in connection with such Person becoming a Company, (ii) no other Company has any obligation with respect to such Indebtedness, (iii) none of the properties of the Companies thereof is bound with respect to such Indebtedness and current operating expenses (iv) the aggregate principal amount of all such Indebtedness permitted by this subpart (d) shall not exceed Ten Million Dollars ($10,000,000) at any time outstanding;
(e) loans to, and guaranties of Indebtedness of, a Credit Party from any other Credit Party;
(f) Indebtedness owed by any Subsidiary of any Credit Party to any Credit Party and guarantees by any Credit Party of the Indebtedness of any such Subsidiary, so long as the principal amount of such Indebtedness and guarantees, when combined with the principal amount of Indebtedness owed to any Credit Party pursuant to Section 5.8(h) hereof, does not exceed an aggregate amount of Ten Million Dollars ($10,000,000) at any time outstanding; provided that no additional such Indebtedness shall be incurred and no additional such guarantees shall be made during the continuance of an Event of Default;
(g) Indebtedness owed by any Company that is not a Credit Party to any other Company that is not a Credit Party and guarantees by any such Company of the Indebtedness of any other Company that is not a Credit Party;
(h) Indebtedness of any Subsidiary of any Credit Party to the holders (or their respective Affiliates) of the equity interests in such Subsidiary on a basis that is substantially proportionate to their equity interests (with any disproportionately large interest received by any Credit Party or any of its respective Subsidiaries or any disproportionately small interest received by any Person other than such Credit Party or any such Subsidiary, being ignored for borrowed moneythis purpose), so long as the principal amount of such Indebtedness owed to any Credit Party, when combined with the principal amount of Indebtedness owed to any Credit Party pursuant to Section 5.8(f) which are aged more than one hundred eighty hereof, does not exceed an aggregate amount of Ten Million Dollars (180$10,000,000) days from at any time outstanding; provided that no additional such Indebtedness shall be incurred during the billing date continuance of an Event of Default;
(i) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and not for speculative purposes;
(j) Indebtedness in respect of (i) deposits made by customers and held under forward purchasing arrangements entered into with customers in the ordinary course of business, (ii) performance, bid, surety, appeal or more than sixty similar bonds or completion or performance guarantees provided in the ordinary course of business, (60iii) days from the due dateworkers’ compensation claims or self-insurance obligations otherwise permitted hereunder, in each case incurred in the ordinary course of business (including, indebtedness relating to any part-time worker arrangements in accordance with the German Act on Part-Time Retirement (Altersteilzeitgesetz) or pursuant to section 7e of part IV of the German Social Security Code (Sozialgesetzbuch IV)) and paid within such time period, unless the same are (iv) past due accounts payable being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, accordance with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsSection 5.2 hereof;
(bk) createcustomary indemnification, incurreimbursement or similar obligations and warranties under leases and other contracts in the ordinary course of business;
(l) Indebtedness arising from the honoring by a bank or other financial institution of a check, assume draft or suffer similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within two Business Days after incurrence;
(m) Indebtedness constituting investments permitted by Section 5.11 hereof;
(n) Indebtedness owed by any Company to exist any liability for Borrowed Money ("Indebtedness") except
Person that is a Lender or an Affiliate of a Lender at the time such Indebtedness is incurred in respect of loans in currencies other than Dollars and guarantees of any such Indebtedness by any Foreign Guarantor of Payment, so long as (i) liabilities created the aggregate principal amount of Indebtedness permitted by this subpart (o) shall not exceed the equivalent amount of Ten Million Dollars ($10,000,000) calculated as of the date such Indebtedness is incurred and (ii) such Lender or pursuant such Affiliate and the Administrative Agent shall have entered into an intercreditor agreement in form and substance reasonably satisfactory to this Agreementthe Administrative Agent;
(o) Indebtedness of any Foreign Subsidiary owing to Commerzbank Aktiengesellschaft in an aggregate principal amount not to exceed Ten Million Euros (€10,000,000) at any time outstanding;
(p) guarantees by DMC Global of contractual obligations of its Subsidiaries entered into in the ordinary course of business not constituting borrowed money;
(q) Indebtedness incurred in connection with an Acquisition permitted hereunder, provided that (i) such Indebtedness is denominated in currencies other than Dollars, and (ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the aggregate principal amount of such Indebtedness or other significant change in the terms of such Indebtedness);
does not exceed Ten Million Dollars (iii$10,000,000) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time outstanding; and
(r) other unsecured Indebtedness, in addition to the Indebtedness listed above, in an aggregate principal amount for all Companies not to exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar Ten Million Dollars ($1.0010,000,000) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)at any time outstanding.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower will not:No Company shall create, incur or have outstanding any Indebtedness of any kind; provided, that this Section shall not apply to any of the following (without duplication):
(a) create, incur, assume the Loans or suffer any other Indebtedness incurred to exist any liability for accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are aged more than one hundred eighty (180) days from Agent or the billing date or more than sixty (60) days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or Lenders pursuant to this Agreement;
(iib) existing Indebtedness on in connection with any Approved Derivatives Contract;
(c) Indebtedness (including any capital lease obligation, but excluding Permitted Foreign Subsidiary Loans and Investments) secured by the date Liens described in and permitted pursuant to Sections 5.09(f) and (k) hereof;
(d) loans to a Domestic Company from a Domestic Company;
(e) Permitted Foreign Subsidiary Loans and Investments;
(f) Indebtedness constituting Permitted Third Party Investments;
(g) Permitted Insurance Subsidiary Loans and Investments;
(h) Indebtedness of the Companies evidenced by the Senior Notes and the Senior Note Guaranty executed and delivered to the Senior Note Holders pursuant to the Senior Note Purchase Agreement, provided that no Company (other than Borrower and the Guarantors of Payment) shall be liable, whether directly or indirectly, for any part of such Indebtedness;
(i) unsecured Indebtedness of any Domestic Company, provided that (i) in the case of any Material Indebtedness, the covenants and agreements relating to such Material Indebtedness are, in the reasonable opinion of Agent, not more restrictive than the covenants and agreements set forth in this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of (ii) Borrower shall be in pro forma compliance with Section 5.07 hereof after giving effect to the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms incurrence of such Indebtedness), and (iii) if any such Indebtedness is to be Subordinated Indebtedness, such Subordinated Indebtedness shall be subject to a subordination agreement or other subordination provisions satisfactory to Agent and the Required Lenders;
(iiij) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreementsthe issuance of (i) $3,000,000 Spartenburg County, South Carolina, Industrial Revenue Bonds, Series 1989 (CIsomedix Operations, Inc. Project), or (ii) that is incurred as a result $8,000,000 City of the assumption of liabilities in an acquisitionEl Paso Industrial Development Authority, and Incorporated, Variable Rate Demand Industrial Development Revenue Bonds, Series 1988 (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to LenderIsomedix Operations, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDEDInc. Project), HOWEVER, that so long as PMC's cash balance the aggregate principal amount of Indebtedness incurred pursuant to clause (i) or (ii) is and continues to be not increased in excess of the Overall Maximum Loan Amount, amount outstanding on the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).Closing Date; or
(ck) except as set forth on SCHEDULE 7.1Indebtedness of the Receivables Subsidiary (i) under the Permitted Receivables Facility, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred the funded amount, together with any other Indebtedness thereunder, does not exceed $100,000,000 at any time and is continuing under this Agreement at (ii) to any Domestic Subsidiary in connection with the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of DefaultPermitted Receivables Facility.
Appears in 1 contract
Samples: Credit Agreement (Steris Corp)
Borrowing. Borrower will not:
No Company shall create, incur or have outstanding any Indebtedness of any kind; provided, that this Section shall not apply to (a) createthe Loans, incurthe Letters of Credit, assume the Banking Services Obligations or suffer any other Indebtedness under the Loan Documents; (b) any Indebtedness incurred by Borrowers or any Credit Party in respect of Capital Leases and any Indebtedness incurred to exist finance the acquisition, construction or improvement of any liability fixed or capital assets after the Closing Date that is secured by purchase money mortgage or purchase money security interests, so long as the combined aggregate principal amount of all such Indebtedness does not exceed $1,000,000 at any time outstanding; (c) the Indebtedness existing on the Closing Date as set forth in Schedule 5.8 hereto or as otherwise disclosed to Agent and any refinancings, refundings, renewals or extensions thereof, which do not increase the principal amount or shorten the maturity thereof; (d) loans to a Company from a Company so long as (I) each such Company borrowing such money is a Borrower or a Credit Party, (II) each such loan is evidenced by the Master Promissory Note, which such promissory note has been pledged to Agent, for accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from benefit of the due dateLenders, in each case a manner reasonably satisfactory to Agent, and (III) the Master Promissory Note is Subordinated; (e) Indebtedness under any Hedge Agreement entered into by Borrowers in connection with the Debt and not for speculative purposes, (f) guarantee obligations incurred in the ordinary course of business by a Company of Indebtedness of a Credit Party, (g) Indebtedness in respect of netting services, overdraft protections and paid within such time periodotherwise in connection with deposit accounts, unless the same are being contested in good faith and by appropriate and lawful proceedings(h) Indebtedness constituting Investments permitted pursuant to Section 5.11 hereof, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by Indebtedness incurred in connection with Permitted Acquisitions to the extent it is subordinated to the Secured Debt on terms and conditions satisfactory to Agent in its Permitted Discretion, (j) obligations in respect of performance bonds or pursuant to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase sureties incurred in the amount ordinary course of such Indebtedness or other significant change in the terms of such Indebtedness);
business, (iiik) Indebtedness of any Credit Party arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn by such Credit Party in the ordinary course of business against insufficient funds, so long as such Indebtedness is repaid within five (A5) Business Days; (l) endorsements of items for deposit or collection of commercial paper received in the ordinary course of business; (m) Indebtedness in respect of deposits or advances received in the ordinary course of business; (n) Indebtedness incurred by Subsidiaries of Borrowers that are Foreign Persons in the aggregate amount at any direct time outstanding not to exceed $3,500,000, (o) Indebtedness of a Person or indirect subsidiary Indebtedness attaching to assets of PMC a Person that, in either case, becomes a Subsidiary pursuant to another subsidiary a Permitted Acquisition, or Indebtedness attaching to assets that are acquired by a Borrower or any of PMC, and (B) of PMC to any such subsidiaryits Subsidiaries in a Permitted Acquisition, in each case where after the Closing Date in an aggregate amount not to exceed $500,000 at any time outstanding; provided that such subsidiary is Indebtedness existed at the time such Person became a Borrower Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation or contemplation thereof, (p) to the extent constituting Indebtedness, Investments permitted under this Agreement Section 5.11, (q) to the extent constituting Indebtedness, deferred compensation to employees of Borrowers or under one any of their Subsidiaries incurred in the Affiliated Loan Agreements;
ordinary course of business, (ivr) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreementsthe repurchase of Capital Stock otherwise permitted hereunder issued to officers, executives, directors and employees to purchase Capital Stock (Cor options or warrants or similar instruments) that is incurred as a result of the assumption Credit Parties or any of liabilities in an acquisitiontheir Affiliates, and (Ds) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph any other unsecured debt which shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be 250,000 in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)aggregate.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to, assume or suffer to exist Capitalized Lease Obligations entered into by any liability Company for accounts payable to trade creditors the purchase or lease of fixed assets (and current operating expenses refinancings of such loans or Capitalized Lease Obligations), which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or leased;
(other than for borrowed moneyc) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in each case addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not increase after the Closing Date);
(d) Indebtedness incurred by Foreign Subsidiaries (in addition to the Indebtedness permitted pursuant to subparts (a) and (h) hereof) in an aggregate amount not to exceed, for all such Indebtedness of all Foreign Subsidiaries, the greater of (i) seven and one-half percent (7.5%) of Consolidated Total Assets, or (ii) Twenty-Five Million Dollars ($25,000,000) at any time outstanding;
(e) any loans from a Company to a Company permitted under Section 5.11 hereof;
(f) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bg) createIndebtedness of a Foreign Subsidiary under an accounts receivable facility, incurin an aggregate amount for all such facilities of all Foreign Subsidiaries not to exceed Twenty Million Dollars ($20,000,000), assume so long as no portion of the Indebtedness or suffer any other obligation (contingent or otherwise) under such facility is guaranteed by any Credit Party and no Credit Party provides, either directly or indirectly, any credit support of any kind in connection with such facility;
(h) Subordinated Indebtedness, so long as (i) the Companies are in compliance (and in pro forma compliance after giving effect to exist any liability such Subordinated Indebtedness) with the provisions of Article V hereof, (ii) the documentation with respect to such Subordinated Indebtedness is in form and substance reasonably acceptable to Agent (and, if the aggregate amount of such Subordinated Indebtedness is in excess of Ten Million Dollars ($10,000,000), the Required Lenders), as determined by Agent and, if applicable, the Required Lenders, prior to the incurrence of such Subordinated Indebtedness, (iii) the maturity date (and earliest possible put date) of such Subordinated Indebtedness is at least thirty (30) days after the last day of the Commitment Period, and (iv) prior to the incurrence of such Subordinated Indebtedness, if the aggregate amount of all Subordinated Indebtedness of the Foreign Subsidiaries exceeds (or will exceed, after the incurrence of such Subordinated Indebtedness) Ten Million Dollars ($10,000,000), each Foreign Subsidiary that is directly or indirectly liable for Borrowed Money ("Indebtedness") exceptsuch Subordinated Indebtedness shall either become a Foreign Borrower or Foreign Guarantor, as appropriate, in the discretion of Agent, in consultation with US Borrower;
(i) liabilities created by or pursuant loans to this AgreementPercepta and its Subsidiaries in an aggregate amount at any time outstanding not to exceed the greater of (i) twenty percent (20%) of the net revenues of Percepta and its Subsidiaries for the most recently completed four fiscal quarters, and (ii) Twenty Million Dollars ($20,000,000);
(j) loans to a joint venture (in which one or more Companies own an equity interest) in an aggregate amount at any time outstanding not to exceed the greater of (i) twenty percent (20%) of the net revenues of such joint venture for the most recently completed four fiscal quarters, and (ii) existing the total, for all such joint ventures, of Twenty Million Dollars ($20,000,000);
(k) Indebtedness on of a Company that was initially indebtedness of a target entity that has been acquired by the date Companies pursuant to Section 5.13 hereof and that becomes Indebtedness of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals a Company through a merger of the target into a Company, so long as (i) such Indebtedness was not incurred in anticipation of such Acquisition, or (provided ii) if any such Indebtedness was incurred by a target entity (or entities) in anticipation of an Acquisition, the aggregate amount of all such Indebtedness for all Companies (with respect to all such Acquisitions) outstanding at any time (that there in each case is no increase outstanding beyond thirty (30) days after the relevant Indebtedness was acquired by the Companies) shall not exceed Twenty Million Dollars;
(l) Indebtedness of a Company incurred pursuant to Synthetic Leases;
(m) Indebtedness of a Company that is owing to any governmental entity, including, without limitation, industrial revenue bonds and grants issued by any governmental entity to such Company;
(n) Indebtedness not otherwise described in or subject to subparts (a) through (m) hereof in an aggregate principal amount not to exceed the greater of (i) five percent (5%) of Consolidated total assets of US Borrower, or (ii) Five Million Dollars ($5,000,000) at any time outstanding; and
(o) other unsecured Indebtedness, in addition to the Indebtedness listed above, so long as (i) the maturity date (and earliest possible put date) of such Indebtedness is at least thirty (30) days after the last day of the Commitment Period, (ii) the Companies are in compliance (and in pro forma compliance after giving effect to such Indebtedness) with the provisions of Section 5.7 hereof, and (iii) if the amount of such Indebtedness is equal to or other significant change in the terms of greater than Ten Million Dollars ($10,000,000), such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations created pursuant to written terms documentation in form and substance reasonably acceptable satisfactory to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)Agent.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to or Capitalized Lease Obligations (not assumed in connection with an Acquisition) entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), assume which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or suffer leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Two Million Dollars ($2,000,000) at any time outstanding;
(c) any Capitalized Lease Obligation assumed in connection with an Acquisition, so long as (i) such Capitalized Lease Obligation was not incurred at the time of or in contemplation of such Acquisition, and (ii) the aggregate principal amount of all such Capitalized Lease Obligations for all Companies shall not exceed Two Million Dollars ($2,000,000) at any time outstanding;
(d) the Indebtedness existing on the Closing Date, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof but only to exist the extent that the principal amount thereof does not increase after the Closing Date);
(e) loans to a Company from a Company, and guaranties by a Company of Indebtedness of another Company, so long as each such Company is a Credit Party;
(f) Indebtedness under any liability for accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due dateHedge Agreement, in each case incurred so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bg) createPermitted Foreign Subsidiary Loans and Investments;
(h) Indebtedness incurred by a Company constituting reimbursement obligations with respect to letters of credit issued in respect of workers compensation claims, incurhealth, assume disability or suffer other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to exist any liability for Borrowed Money reimbursement-type obligations regarding workers compensation claims; provided, that ("i) upon the drawing of such letters of credit or the incurrence of such Indebtedness", such obligations are reimbursed within thirty (30) exceptdays following such drawing or incurrence, and (ii) such letters of credit are not provided to secure the repayment of other Indebtedness of the Companies;
(i) liabilities unsecured Subordinated Indebtedness created by or pursuant to this Agreement;
documentation in form and substance reasonably satisfactory to Agent, so long as (iii) existing there shall be no principal payments due on such Subordinated Indebtedness on any earlier than thirty (30) days after the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness later of (A) any direct the final maturity of the Term Loan B, or indirect subsidiary (B) the last day of PMC to another subsidiary of PMCthe Commitment Period, and (Bii) Agent approves the form and substance of PMC the documentation prior to any such subsidiarythe incurrence of the Subordinated Indebtedness; and
(j) other unsecured Indebtedness, in each case where such subsidiary is a Borrower under this Agreement or under one of addition to the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basislisted above, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and aggregate principal amount for all Companies not to exceed Two Million Dollars (D$2,000,000) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed outstanding (of which Five Hundred Thousand Dollars ($25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit 500,000) may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50secured).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower will not:
(a) create, incur, assume or suffer Subject to exist any liability for accounts payable to trade creditors the terms and current operating expenses (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due date, in each case incurred conditions set forth herein and in the ordinary course of business and paid within such time periodFourth Amendment, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant the Additional Term B-1 Lender agrees to this Agreement;
make a Term B-1 Loan to the Company on the Fourth Amendment Effective Date in Dollars in a principal amount not to exceed its Additional Term B-1 Commitment, (ii) existing Indebtedness on each Converting Consenting Term B Lender agrees to have all of its outstanding Term B Loans (or such lesser amount as notified and allocated to such Converting Consenting Term B Lender by the date of this AgreementFourth Amendment Joint Lead Arrangers, as set forth on SCHEDULE 7.1, including any extensions or renewals determined by the Company and the Fourth Amendment Joint Lead Arrangers in their sole discretion) converted to an equivalent principal amount of Term B-1 Loans effective as of the Indebtedness Fourth Amendment Effective Date and (provided that there is no increase iii) each Non-Converting Consenting Term B Lender agrees to have all of its outstanding Term B Loans prepaid and will purchase by assignment from the Additional Term B-1 Lender Term B-1 Loans in a principal amount equal to the principal amount of such Indebtedness Term B Loans (or other significant change such lesser amount as notified and allocated to such Non-Converting Consenting Term B Lender by the Fourth Amendment Joint Lead Arrangers, as determined by the Fourth Amendment Joint Lead Arrangers and the Administrative Agent in the terms of such Indebtednesstheir sole discretion);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower . Amounts borrowed under this Agreement Section 2.01(d) and repaid or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests prepaid may not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit reborrowed. Term B-1 Loans may be increased Base Rate Loans or Term SOFR Loans, as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)further provided herein.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Samples: Credit Agreement (WEX Inc.)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following, to the extent the following are not otherwise prohibited by the Senior Notes Documents:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), assume which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or suffer leased, so long as (i) Borrower is in pro forma compliance with Section 5.7 hereof, both before and after giving effect to such loans and Capitalized Lease Obligations, (ii) no Default or Event of Default shall exist at the time any liability such loan or Capitalized Lease Obligation is incurred, or immediately thereafter shall begin to exist, (iii) the aggregate principal amount of all such loans and Capitalized Lease Obligations for accounts payable to trade creditors and current operating expenses all Companies shall not exceed Ten Million Dollars (other than for borrowed money$10,000,000) which are aged more than one hundred eighty at any time outstanding;
(180c) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not increase after the Closing Date);
(d) loans to, and guaranties of Indebtedness of, a Company from a Company so long as each case incurred such Company is a Credit Party;
(e) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bf) createIndebtedness arising in the ordinary course of business of the Companies in connection with the corporate credit card programs of the Companies, incurin an aggregate amount not to exceed Five Million Dollars ($5,000,000);
(g) Permitted Foreign Subsidiary Loans, assume or suffer Guaranties and Investments;
(h) Indebtedness incurred in connection with the Senior Notes, in an aggregate amount not to exist any liability for Borrowed Money exceed Two Hundred Twenty-Five Million Dollars ("Indebtedness") except$225,000,000);
(i) liabilities created by Indebtedness with respect to surety, appeal, indemnity, performance or pursuant other similar bonds arising in the ordinary course of business and upon terms typical to the industry; provided that this Agreement;subpart (i) shall not include guaranties for borrowed money; and
(j) other Indebtedness, in addition to the Indebtedness listed above, in an aggregate principal amount for all Companies not to exceed Twenty-Five Million Dollars ($25,000,000), with respect to (i) Indebtedness incurred in connection with the Senior Notes, (ii) existing unsecured Subordinated Indebtedness created pursuant to documentation in form and substance reasonably satisfactory to Agent and the Required Lenders, and on terms reasonably satisfactory to Agent and the Required Lenders, and (iii) other unsecured Indebtedness; so long as, in each case, as of the date of this Agreementsuch additional Indebtedness is incurred, as set forth on SCHEDULE 7.1(A) Borrower is in pro forma compliance with Section 5.7 hereof, including any extensions or renewals of both before and after giving effect to the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms incurrence of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) no Default or Event of PMC Default shall then exist or immediately thereafter shall begin to any such subsidiaryexist. Notwithstanding anything in this Section 5.8 to the contrary, Borrower shall not, without the prior written consent of Agent and the Required Lenders, incur Indebtedness in each case where such subsidiary is a Borrower under this Agreement reliance upon or under one pursuant to clause (15) of the Affiliated Loan Agreements;
definition of "Permitted Indebtedness" in the Indenture; provided that Borrower may, without the consent of Agent or the Lenders, incur up to an aggregate amount of Five Million Dollars (iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%5,000,000) of PMC's tangible assets on a consolidated basis, unsecured Indebtedness pursuant to clause (B15) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption definition of liabilities "Permitted Indebtedness" in an acquisitionthe Indenture, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance such Indebtedness is and continues otherwise permitted pursuant to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)this Section 5.8.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Samples: Credit and Security Agreement (Kratos Defense & Security Solutions, Inc.)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided, that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit or any other Indebtedness under this Agreement;
(b) any loans granted to or capital leases entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or capital leases), assume or suffer to exist which loans and capital leases shall only be secured by the fixed assets being purchased, so long as the aggregate principal amount of all such loans and leases for all Companies shall not exceed Five Million Dollars ($5,000,000) at any liability for accounts payable to trade creditors and current operating expenses time outstanding;
(other than for borrowed moneyc) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof so long as the principal amount thereof shall not be increased after the Closing Date);
(d) loans to a Company from a Company so long as each case incurred such Company is a Credit Party;
(e) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bf) createother Subordinated Indebtedness, incur, assume or suffer in additional to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this Agreement;
(ii) Subordinated Indebtedness existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness Closing Date and referenced on Schedule 5.8 hereto, up to an aggregate principal amount for all Companies not to exceed Ten Million Dollars (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii$10,000,000) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDEDoutstanding, HOWEVER, that so long as PMC's cash balance such Subordinated Indebtedness is permitted under the Note Agreement and continues the Convertible Subordinated Notes; and
(g) other Indebtedness, in addition to be the Indebtedness listed above, in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: an aggregate principal amount for each one dollar all Companies not to exceed Two Million Dollars ($1.002,000,000) of such excessat any time outstanding, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred such Indebtedness is permitted under the Note Agreement and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of DefaultConvertible Subordinated Notes.
Appears in 1 contract
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any obligation for borrowed money or any Indebtedness of any kind; provided, that this Section shall not apply to:
(a) createthe Loans, incurLetters of Credit or any other Indebtedness under this Agreement;
(b) any loans granted to or capital leases entered into by any Company for the purchase or lease of fixed assets, assume which loans or suffer to exist leases shall only be secured by the assets being purchased or leased, so long as aggregate principal amount of all such loans and leases for all Companies shall not exceed Twenty Million Dollars ($20,000,000) at any liability for accounts payable to trade creditors and current operating expenses time outstanding;
(other than for borrowed moneyc) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due dateIndebtedness under any Hedge Agreement, in each case incurred so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bd) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this Agreement;
(ii) the Indebtedness existing Indebtedness on the date of this Agreement, Closing Date as set forth on SCHEDULE 7.1in Schedule 5.8 hereto (and any extension, including any extensions renewal or renewals of refinancing thereof but only to the Indebtedness (provided extent that there is no the principal amount thereof shall not increase in after the amount of such Indebtedness or other significant change in the terms of such IndebtednessClosing Date);
(iiie) Indebtedness loans to a Company from a Company so long as each such Company shall be ASI or a Domestic Guarantor of (A) Payment or loans by any direct Company to ASI or indirect subsidiary any Domestic Guarantor of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan AgreementsPayment;
(ivf) Indebtedness Permitted Foreign Subsidiary Loans and Investments;
(Ag) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated loans to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that The Sunprene Company from another Company so long as PMC's cash balance is and continues to be all such loans from all Companies do not aggregate in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar Two Million Dollars ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.502,000,000).; or
(ch) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lenderadditional unsecured Indebtedness of the Companies, to the extent not otherwise permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtednesspursuant to subparts (a) through (f) above, prepayment or other exception set forth above shall be permitted to be created only so long as (i) no Default of Event of Default has occurred shall then exist or immediately after incurring such Indebtedness will exist, and is continuing under this Agreement at (ii) the time Companies shall be in compliance with the financial covenants set forth in Section 5.7 hereof both immediately before and after giving pro forma effect to the incurrence of such creation and shall be prohibited after the occurrence and during the continuance of any Event of DefaultIndebtedness.
Appears in 1 contract
Samples: Credit Agreement (Schulman a Inc)
Borrowing. Borrower will not:No Company shall create, incur or have outstanding any obligation for borrowed money or any Indebtedness of any kind; provided, that this Section 10.2 shall not apply to any of the following (without duplication):
(a) create(i) the Indebtedness of the Issuer under this Agreement and the Subsidiary Guarantors under the Subsidiary Guaranty and (ii) (A) the Indebtedness of the Issuer to the Bank Agent and the Banks under the Credit Agreement, incur(B) the Guaranties by the Subsidiary Guarantors of such Indebtedness under the Credit Agreement and (C) the Guaranty by the Issuer of Indebtedness of the Insurance Subsidiary with respect to letters of credit issued under the Credit Agreement pursuant to the Parent Guaranty of Payment;
(b) unsecured current Indebtedness (including the funded and/or unfunded reserves for self insurance liabilities, assume but excluding Indebtedness incurred to a bank or suffer other financial institution customarily engaged in the business of lending money, except as permitted pursuant to exist any liability for accounts payable to trade creditors and current operating expenses subpart (other than for borrowed moneyd) which are aged more than one hundred eighty (180below) days from incurred by the billing date or more than sixty (60) days from the due date, in each case incurred Companies in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsbusiness;
(bc) createIndebtedness for Taxes, incurassessments and governmental charges to the extent that payment thereof shall not be required to be made by Section 9.4 hereof;
(d) unsecured Indebtedness incurred under lines of credit established by financial institutions customarily engaged in the business of lending money; provided, assume however, that the maximum amount of Indebtedness permitted by this subpart (d) shall when aggregated with any Indebtedness outstanding under Sections 10.2(e) and 10.2(j) hereof not exceed $100,000,000 at any time;
(e) unsecured Subordinated Indebtedness evidenced by promissory notes issued by the Issuer to employees or suffer former employees in partial payment for common shares redeemed by the Issuer so long as the aggregate principal amount of such Indebtedness when aggregated with any Indebtedness outstanding under Sections 10.2(d) and 10.2(j) hereof does not exceed $100,000,000 at any time;
(f) loans to exist a Company from a Company so long as each such Company is the Issuer or a Subsidiary Guarantor;
(g) Indebtedness to insurance companies secured by a pledge of the cash surrender value of life insurance policies owned by any liability for Borrowed Money Company; provided, however, that the maximum amount of Indebtedness permitted by this subpart ("Indebtedness"g) exceptshall at no time exceed the cash surrender value of the life insurance policies pledged with respect thereto;
(h) unsecured Indebtedness arising pursuant to the deferment of payment of any insurance premiums by the Issuer;
(i) liabilities created any (i) loans granted to a Company for the purchase of fixed assets, or (ii) Indebtedness incurred by a Company in connection with any Capital Leases, so long as the aggregate amount of all such loans and Capital Leases for all Companies (excluding Capital Leases between the Issuer or pursuant to this Agreementa Subsidiary Guarantor and a Subsidiary Guarantor) does not exceed $25,000,000 at any time;
(iij) existing unsecured Subordinated Indebtedness on of the date Issuer incurred to a seller to finance all or part of this an Acquisition permitted pursuant to Section 10.7 hereof, so long as the aggregate outstanding amount of all such Indebtedness for all such Acquisitions does not when aggregated with any Indebtedness outstanding under Sections 10.2(d) and 10.2(e) hereof exceed $100,000,000 at any time;
(k) unsecured Indebtedness issued pursuant to the Master Note Purchase Agreement, so long as set forth on SCHEDULE 7.1, including any extensions or renewals the aggregate outstanding amount of all such Indebtedness does not exceed the amount outstanding under the Master Note Purchase Agreement as of the Series A Closing Day, and all guaranties by any Company of such Indebtedness; and
(l) Indebtedness (provided that there is no increase in incurred under a Permitted Receivables Facility for the issuance of letters of credit, so long as the aggregate outstanding amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests does not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)100,000,000.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Samples: Note Purchase and Private Shelf Agreement (Davey Tree Expert Co)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness to Lender or any affiliate of Lender;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), assume which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or suffer to exist leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Five Hundred Thousand Dollars ($500,000) at any liability for accounts payable to trade creditors and current operating expenses time outstanding;
(other than for borrowed moneyc) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not increase after the Closing Date);
(d) loans to, and guaranties of Indebtedness of, a Company from a Company so long as each case incurred such Company is a Credit Party;
(e) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bf) createIndebtedness owing to Xxxxxxx pursuant to the Xxxxxxx Note, incurin an aggregate principal amount not to exceed One Million Two Hundred Ninety-Nine Thousand Six Hundred Seventy-Nine and 63/100 Dollars ($1,299,679.63), assume or suffer so long as such Indebtedness is subject to exist the Intercreditor and Lien Subordination Agreement;
(g) the Goldman Associates Short-Term Subordinated Indebtedness;
(h) unsecured Subordinated Indebtedness owing to (i) Goldman Associates, in an aggregate principal amount (excluding any liability for Borrowed Money Goldman Associates Short-Term Subordinated Indebtedness) not to exceed Seven Hundred Ninety Thousand Dollars ("Indebtedness"$790,000), and (ii) exceptthe Investor Subordinated Creditors (other than Goldman Associates), in an aggregate principal amount not to exceed Two Hundred Seventy Thousand Dollars ($270,000), so long as, in each case, such Subordinated Indebtedness is subject to a Subordination Agreement acceptable to Lender; and
(i) liabilities created by or pursuant other unsecured Indebtedness, in addition to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiarylisted above, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests an aggregate principal amount for all Companies not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not exceed at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar outstanding Fifty Thousand Dollars ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.5050,000).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Samples: Credit and Security Agreement (Colonial Commercial Corp)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any obligation for borrowed money or any Indebtedness of any kind; provided, that this Section shall not apply to:
(a) create, incur, assume the Loans or suffer to exist any liability for accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsIndebtedness under this Agreement;
(b) createthe Indebtedness (whether outstanding or committed) that exists as of the Closing Date as set forth in SCHEDULE 5.8 hereto (and any extension, incurrenewal or refinancing thereof so long as the principal amount thereof does not increase after the Closing Date);
(c) the unsecured Indebtedness of Borrower under the Note Purchase Agreement in an original principal amount not to exceed Fifty Million Dollars ($50,000,000);
(d) unsecured Indebtedness of Borrower under the Credit Agreement between Borrower and National City Bank, assume dated October 11, 2000, up to an aggregate principal amount of Forty Million Dollars ($40,000,000);
(e) the unsecured Indebtedness of Borrower under the 2001 Note Purchase Agreement in an aggregate principal amount not to exceed One Hundred Million Dollars ($100,000,000);
(f) the unsecured Indebtedness of Borrower owing to Bank of Tokyo-Mitsubishi Trust Company up to the Dollar Equivalent of Three Billion Japanese Yen ((Y)3,000,000,000);
(g) loans or suffer capital leases to exist any liability Company for Borrowed Money the purchase or lease of fixed assets, which loans or leases are secured by the assets being purchased or leased, so long as the aggregate principal amount of all such loans and leases for all Companies does not exceed Twenty-Five Million Dollars ("Indebtedness"$25,000,000) exceptat any time;
(h) loans by a Domestic Company (other than the Receivables Subsidiary) to another Domestic Company (other than the Receivables Subsidiary);
(i) liabilities created unsecured loans by or pursuant a Foreign Subsidiary to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person Domestic Company (other than Lender, to the extent permitted by this Agreement Receivables Subsidiary) or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.another Foreign Subsidiary;
Appears in 1 contract
Samples: Credit Agreement (Nordson Corp)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to, assume or suffer to exist Capitalized Lease Obligations entered into by any liability Company for accounts payable to trade creditors the purchase or lease of fixed assets (and current operating expenses refinancings of such loans or Capitalized Lease Obligations), which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or leased;
(other than for borrowed moneyc) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in each case addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not increase after the Closing Date);
(d) Indebtedness incurred by Foreign Subsidiaries (in addition to the Indebtedness permitted pursuant to subparts (a) and (h) hereof) in an aggregate amount not to exceed, for all such Indebtedness of all Foreign Subsidiaries, the greater of (i) seven and one-half percent (7.5%) of Consolidated Total Assets, or (ii) Twenty-Five Million Dollars ($25,000,000) at any time outstanding;
(e) any loans from a Company to a Company permitted under Section 5.11 hereof;
(f) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bg) createIndebtedness of a Foreign Subsidiary under an accounts receivable facility, incurin an aggregate amount for all such facilities of all Foreign Subsidiaries not to exceed Twenty Million Dollars ($20,000,000), assume so long as no portion of the Indebtedness or suffer any other obligation (contingent or otherwise) under such facility is guaranteed by any Credit Party and no Credit Party provides, either directly or indirectly, any credit support of any kind in connection with such facility;
(h) Subordinated Indebtedness, so long as (i) the Companies are in compliance (and in pro forma compliance after giving effect to exist any liability such Subordinated Indebtedness) with the provisions of Article V hereof, (ii) the documentation with respect to such Subordinated Indebtedness is in form and substance reasonably acceptable to Agent (and, if the aggregate amount of such Subordinated Indebtedness is in excess of Ten Million Dollars ($10,000,000), the Required Lenders), as determined by Agent and, if applicable, the Required Lenders, prior to the incurrence of such Subordinated Indebtedness, (iii) the maturity date (and earliest possible put date) of such Subordinated Indebtedness is at least thirty (30) days after the last day of the Commitment Period (as such Commitment Period may be extended pursuant to Section 2.15 hereof), and (iv) prior to the incurrence of such Subordinated Indebtedness, if the aggregate amount of all Subordinated Indebtedness of the Foreign Subsidiaries exceeds (or will exceed, after the incurrence of such Subordinated Indebtedness) Ten Million Dollars ($10,000,000), each Foreign Subsidiary that is directly or indirectly liable for Borrowed Money ("Indebtedness") exceptsuch Subordinated Indebtedness shall either become a Foreign Borrower or Foreign Guarantor, as appropriate, in the discretion of Agent, in consultation with US Borrower;
(i) liabilities created by or pursuant loans to this AgreementPercepta and its Subsidiaries in an aggregate amount at any time outstanding not to exceed the greater of (i) twenty percent (20%) of the net revenues of Percepta and its Subsidiaries for the most recently completed four fiscal quarters, and (ii) Twenty Million Dollars ($20,000,000);
(j) loans to a joint venture (in which one or more Companies own an equity interest) in an aggregate amount at any time outstanding not to exceed the greater of (i) twenty percent (20%) of the net revenues of such joint venture for the most recently completed four fiscal quarters, and (ii) existing the total, for all such joint ventures, of Twenty Million Dollars ($20,000,000);
(k) Indebtedness on of a Company that was initially indebtedness of a target entity that has been acquired by the date Companies pursuant to Section 5.13 hereof and that becomes Indebtedness of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals a Company through a merger of the target into a Company, so long as (i) such Indebtedness was not incurred in anticipation of such Acquisition, or (provided ii) if any such Indebtedness was incurred by a target entity (or entities) in anticipation of an Acquisition, the aggregate amount of all such Indebtedness for all Companies (with respect to all such Acquisitions) outstanding at any time (that there in each case is outstanding beyond thirty (30) days after the relevant Indebtedness was acquired by the Companies) shall not exceed Twenty Million Dollars ($20,000,000);
(l) Indebtedness of a Company incurred pursuant to Synthetic Leases;
(m) Indebtedness of a Company that is owing to any governmental entity, including, without limitation, industrial revenue bonds and grants issued by any governmental entity to such Company;
(n) Indebtedness not otherwise described in or subject to subparts (a) through (m) hereof in an aggregate principal amount not to exceed the greater of (i) five percent (5%) of Consolidated total assets of US Borrower, or (ii) Five Million Dollars ($5,000,000) at any time outstanding; and
(o) other unsecured Indebtedness, in addition to the Indebtedness listed above, so long as (i) no increase Default or Event of Default shall then exist or immediately thereafter shall begin to exist, (ii) the maturity date (and earliest possible put date) of such Indebtedness is at least thirty (30) days after the last day of the Commitment Period, (iii) the Companies are in compliance (and in pro forma compliance after giving effect to such Indebtedness) with the provisions of Section 5.7 hereof, and (iv) if the amount of such Indebtedness is equal to or other significant change in the terms of greater than Twenty Million Dollars ($20,000,000), such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations created pursuant to written terms documentation in form and substance reasonably acceptable satisfactory to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)Agent.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower will not:
(a) not create, incur, assume or suffer to exist any liability for Borrowed Money except:
(a) indebtedness to Lender;
(b) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than one hundred eighty twenty (180120) days from the billing date or more than sixty thirty (6030) days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(bc) createborrowings incurred in the ordinary course of its business and not exceeding $500,000 in the aggregate outstanding at any one time;
(d) indebtedness secured by liens expressly permitted by Section 6.3;
(e) indebtedness expressly denoted as permitted indebtedness under the Exceptions Schedule and extensions, incurrenewal and replacements of such indebtedness that do not increase the principal amount thereof or the aggregate amount of outstanding obligations thereunder (collectively, assume “Permitted Indebtedness”);
(f) indebtedness of the Borrower incurred after the Closing Date consisting of capital lease obligations or suffer indebtedness incurred to exist provide all or a portion of the purchase price or cost of construction of an asset provided (i) such indebtedness when incurred shall not exceed the purchase price or cost of construction of such assets, (ii) no such indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing; and (iii) the aggregate amount of all such indebtedness outstanding at any liability time shall not exceed $500,000;
(g) indebtedness of any Subsidiary to the Borrower or any other Subsidiary but only to the extent such Subsidiaries are entities comprising Borrower;
(h) obligations of the Borrower in respect of Hedging Agreements entered into in order to manage existing or anticipated interest rate or exchange rate risks and not for Borrowed Money ("Indebtedness") exceptspeculative purposes; and
(i) liabilities created by or pursuant indebtedness owed to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, Medtronic for management service fees and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities trade payables in an acquisition, and (D) that is expressly subordinated amount not to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, 13,000,000. Borrower will not make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted IndebtednessBorrower will not make any payments (whether in cash, prepayment in kind or otherwise) in respect of any Permitted Indebtedness at a time such payments are otherwise prohibited under the terms of any intercreditor agreement or subordination agreement. Borrower will not amend, alter or restate the terms of any Permitted Indebtedness or grant to the holders thereof any collateral (other than collateral specifically enumerated on the Information Certificate) or other exception set forth above shall accommodation without Lender’s prior written consent, which consent may be given or withheld in Lender’s discretion. Except as specifically provided otherwise on the Information Certificate or except as expressly permitted pursuant to Section 6.3(a), no Permitted Indebtedness may be created only so long as no Event secured by any lien or security interest upon, or any right or claim or interest in, any of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of DefaultCollateral.
Appears in 1 contract
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), assume which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or suffer leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Five Million Dollars ($5,000,000) at any time outstanding;
(c) the Indebtedness existing on the Closing Date, in addition to exist the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any liability extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not increase after the Closing Date);
(d) loans to, and guaranties of Indebtedness of, a Company from a Company so long as each such Company is a Credit Party;
(e) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and not for accounts payable speculative purposes;
(f) Permitted Foreign Subsidiary Loans and Investments;
(g) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guaranties and similar obligations not incurred in connection with the borrowing of money, in each case provided in the ordinary course of business, including those incurred to trade creditors secure health, safety and current operating expenses environmental obligations in the ordinary course of business;
(other than for borrowed moneyh) which are aged more than unsecured Indebtedness of a Company incurred as a result of an Acquisition permitted pursuant to Section 5.13 hereof, so long as (i) such Indebtedness was not created at the time of or in contemplation of such Acquisition, (ii) such Indebtedness is repaid within one hundred eighty (180) days from the billing date or more than sixty after such Acquisition (60) days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside obtained the prior written consent of Agent and the Required Lenders), and (iii) the aggregate amount of all such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsIndebtedness does not exceed Twenty Million Dollars ($20,000,000) at any time outstanding; provided that Five Million Dollars ($5,000,000) of such Indebtedness may be secured pursuant to Section 5.9(h) hereof;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities unsecured Subordinated Indebtedness not to exceed Twenty-Five Million Dollars ($25,000,000) at any time outstanding, created by or pursuant to this documentation in form and substance satisfactory to Agent, subject to a Subordination Agreement;; and
(j) other unsecured Indebtedness, in addition to the Indebtedness listed above, in an aggregate principal amount for all Companies not to exceed at any time outstanding the greater of (i) Five Million Dollars ($5,000,000), or (ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (BBorrower’s Consolidated gross revenues for the most recently completed four fiscal quarters of Borrower for which financial statements have been delivered to Agent pursuant to Section 5.3(a) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (Db) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)hereof.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Samples: Credit and Security Agreement (Netscout Systems Inc)
Borrowing. Borrower will not:No Company shall create, incur or have outstanding any obligation for borrowed money or any Indebtedness of any kind; provided, that this Section shall not apply to any of the following (without duplication):
(a) createthe Loans and all other Indebtedness now owing by Borrower to Agent and the Banks under this Agreement;
(b) unsecured current Indebtedness (including the funded and/or unfunded reserves for self insurance liabilities, incurbut excluding Indebtedness incurred to a bank or other financial institution customarily engaged in the business of lending money, assume or suffer except as permitted pursuant to exist any liability for accounts payable to trade creditors and current operating expenses subpart (other than for borrowed moneyd) which are aged more than one hundred eighty (180below) days from incurred by the billing date or more than sixty (60) days from the due date, in each case incurred Companies in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsbusiness;
(bc) createIndebtedness for taxes, incur, assume or suffer assessments and governmental charges to exist any liability for Borrowed Money ("Indebtedness"the extent that payment thereof shall not be required to be made by Section 5.2(a) except
(i) liabilities created by or pursuant to this Agreementhereof;
(iid) existing unsecured Indebtedness on the date incurred under lines of this Agreement, as set forth on SCHEDULE 7.1, including any extensions credit established by Agent or renewals of the Indebtedness (provided that there is no increase other financial institutions customarily engaged in the business of lending money; provided, however, that the maximum amount of Indebtedness permitted by this subpart (d) shall at no time exceed Twenty-Five Million Dollars ($25,000,000);
(e) unsecured Subordinated Indebtedness evidenced by promissory notes issued by Borrower to employees or former employees in partial payment for common shares redeemed by Borrower so long as the aggregate principal amount of such Indebtedness or other significant change in the terms of such Indebtedness)does not exceed Twenty-Five Million Dollars ($25,000,000) at any time;
(iiif) Indebtedness loans to a Company from a Company so long as each such Company is Borrower or a Guarantor of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan AgreementsPayment;
(ivg) Indebtedness (A) that is to insurance companies secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result pledge of the assumption cash surrender value of liabilities in an acquisitionlife insurance policies owned by Borrower or any of its Subsidiaries; provided, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVERhowever, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate amount of Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above subpart (g) shall be permitted to be created only so long as at no Event time exceed the cash surrender value of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.life insurance policies pledged with respect thereto;
Appears in 1 contract
Borrowing. (a) The Loans shall, at the option of the applicable Borrower will notand subject to the terms and conditions of this Agreement, be either Base Rate Loans or SOFR Loans, provided that (i) the Swingline Loans shall be made and maintained as Base Rate Loans and (ii) all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. In order to make a Borrowing (other than (x) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(c), (y) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(d), or (z) continuations or conversions of outstanding Loans made pursuant to Section 2.12), the applicable Borrower shall deliver to the Administrative Agent a fully executed, irrevocable notice of borrowing in the form of Exhibit B-1 (the “Notice of Borrowing”) no later than 11:00 a.m. three (3) U.S. Government Securities Business Days prior to each Borrowing of SOFR Loans and not later than 10:00 a.m. on the same Business Day as, but prior to, each Borrowing of Base Rate Loans. Upon its receipt of the Notice of Borrowing, the Administrative Agent shall promptly notify each Lender of the proposed borrowing. Notwithstanding anything to the contrary contained herein:
(ai) createeach Borrowing of Base Rate Loans shall be in a principal amount not less than $3,000,000 or, incurif greater, assume or suffer to exist any liability for accounts payable to trade creditors an integral multiple of $1,000,000 in excess thereof, and current operating expenses each Borrowing of SOFR Loans shall be in a principal amount not less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due dateor, in each case incurred if less than the minimum amount, in the ordinary course amount of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this Agreementaggregate Unutilized Commitments);
(ii) existing Indebtedness on if the date applicable Borrower shall have failed to designate the Type of this AgreementLoans in a Notice of Borrowing, then the Loans shall be made as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);Base Rate Loans; and
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC if the applicable Borrower shall have failed to another subsidiary of PMC, and (B) of PMC specify an Interest Period to be applicable to any such subsidiaryBorrowing of SOFR Loans, then the applicable Borrower shall be deemed to have selected an Interest Period of one month.
(b) Not later than 1:00 p.m. on the requested Borrowing Date, each Lender will make available to the Administrative Agent at the Payment Office an amount, in each case where Dollars and in immediately available funds, equal to its Ratable Share of such subsidiary is a Borrower under this Agreement requested Borrowing as its Loan or under one Loans. Upon satisfaction or waiver of the Affiliated Loan Agreements;
applicable conditions set forth in Section 3.2 (iv) Indebtedness (A) that and, if such Borrowing is secured by purchase money security interests not exceeding to occur on the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basisClosing Date, (B) that is incurred in connection with interest rate protection agreementsSection 3.1), (C) that is incurred as a result the Administrative Agent will make the proceeds of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated Loans available to the Obligations pursuant applicable Borrower in accordance with Section 2.3(a) by causing an amount of like funds equal to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues amount received from the Lenders to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) credited to an account of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)Borrower.
(c) except In order to make a Borrowing of a Swingline Loan, the applicable Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 3:00 p.m. on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 5:00 p.m. on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, upon satisfaction or waiver of the applicable conditions set forth in Section 3.2 (and, if such Borrowing is to occur on SCHEDULE 7.1the Closing Date, Section 3.1), the Administrative Agent will make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money such amount available to the applicable Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent.
(d) With respect to any Person outstanding Swingline Loans, the Swingline Lender may at any time (other than Lender, to the extent permitted by this Agreement whether or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no not an Event of Default has occurred and is continuing under continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the applicable Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the applicable Borrower), not later than 11:00 a.m. one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the applicable Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m. on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its Ratable Share of the Refunded Swingline Loans. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s Ratable Share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the applicable Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.16(b).
(e) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the applicable Borrower, Revolving Loans are not made pursuant to Section 2.2(d) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of such Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its Ratable Share of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the time Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such creation amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Xxxxxx’s participation as provided in this Section 2.2(e), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Overnight Rate for the first three Business Days and thereafter at the Adjusted Base Rate plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. Promptly following its receipt of any payment by or on behalf of the applicable Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s Ratable Share of such payment.
(f) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Swingline Loans pursuant to Section 2.2(d) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(e) shall be absolute and unconditional and shall not be prohibited after affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrowers or any other Person for any reason whatsoever, (ii) the occurrence and during the or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in Section 2.2(a), or (iv) the failure of any conditions set forth in Section 3.2 or elsewhere herein to be satisfied.
Appears in 1 contract
Samples: Credit Agreement (Unum Group)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans or other credit granted to, assume or suffer to exist Capitalized Lease Obligations entered into by, any liability Company for accounts payable to trade creditors the purchase or lease of fixed assets (and current operating expenses refinancings of such loans, credit or Capitalized Lease Obligations), which loans, credit and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Twenty Million Dollars (other than for borrowed money$20,000,000) which are aged more than one hundred eighty at any time outstanding;
(180c) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosingFirst Amendment Effective Date, in addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not increase after the Closing Date);
(d) loans to, and guaranties of Indebtedness of, a Company from a Company so long as each case incurred such Company is a Credit Party;
(e) loans to, and guaranties of Indebtedness of, a Foreign Subsidiary by a Credit Party in an aggregate amount not to exceed Fifteen Million Dollars ($15,000,000) at any time outstanding;
(f) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bg) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except[Intentionally Omitted]; and
(ih) liabilities created by or pursuant other unsecured Indebtedness, in addition to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiarylisted above, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
an aggregate principal amount for all Companies not to exceed Twenty Million Dollars (iv$20,000,000) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)outstanding.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), assume or suffer to exist which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Ten Million Dollars ($10,000,000) at any liability for accounts payable to trade creditors and current operating expenses time outstanding;
(other than for borrowed moneyc) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof so long as the principal amount thereof shall not be increased after the Closing Date);
(d) loans to a Company from a Company so long as each case incurred such Company is a Credit Party;
(e) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bf) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") exceptPermitted Foreign Subsidiary Loans and Investments; and
(ig) liabilities created by or pursuant to this Agreement;
(ii) existing Indebtedness on the date of this Agreementadditional unsecured Indebtedness, so long as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate principal amount of all such Indebtedness described in this subparagraph for all Companies shall not exceed Twenty Million Dollars ($20,000,000) at any time exceed $25,000,000.00; PROVIDEDoutstanding, HOWEVER, provided that so long as PMC's cash balance is the financial covenants and continues defaults under the agreements relating to be in excess such Indebtedness (for an aggregate amount of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar Indebtedness over One Million Dollars ($1.001,000,000)) shall not be more restrictive than any such provisions of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)this Agreement.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Samples: Credit Agreement (IHS Inc.)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), assume which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or suffer to exist leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Four Million Dollars ($4,000,000) at any liability for accounts payable to trade creditors and current operating expenses time outstanding;
(other than for borrowed moneyc) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateRestatement Closing Date, in each case addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and, subject to restrictions on the Senior Notes set forth in Section 5.27 hereof, any extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not increase after the Restatement Closing Date);
(d) loans to US Borrower or a Domestic Guarantor of Payment from a Company;
(e) loans to a Foreign Borrower or a Foreign Guarantor of Payment from a Foreign Borrower or a Foreign Guarantor of Payment;
(f) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bg) createPermitted Foreign Subsidiary Loans and Investments;
(h) other unsecured Indebtedness, incurin addition to the Indebtedness listed above, assume or suffer in an aggregate principal amount for all Companies not to exist exceed Five Million Dollars ($5,000,000) at any liability for Borrowed Money ("Indebtedness") excepttime outstanding;
(i) liabilities created unsecured Subordinated Indebtedness that is subordinated to the Secured Obligations and subject to a Subordination Agreement that includes terms no less favorable to Agent and the Lenders than those set forth on Exhibit H hereto, provided that the documentation of such provisions are in form satisfactory to Agent;
(j) Indebtedness incurred in connection with the financing of insurance premiums, in an aggregate amount not to exceed One Million Dollars ($1,000,000) at any time outstanding;
(k) contingent obligations consisting of guarantees executed by or pursuant any Company with respect to Indebtedness of a Domestic Guarantor of Payment otherwise permitted by this Agreement;
(iil) existing so long as the Leverage Ratio shall be less than 2.50 to 1.00 prior to and after giving pro forma effect thereto, Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness Companies in the form of additional Senior Notes, in an aggregate amount not to exceed Fifty Million Dollars ($50,000,000) during the Commitment Period (provided that there is no increase the holders of such Senior Notes shall enter into the Intercreditor Agreement or another “intercreditor agreement”, in the amount form and substance of the Intercreditor Agreement, with the parties to the Intercreditor Agreement); and
(m) the following that do not constitute Indebtedness, but that are listed for purposes of clarification, contingent obligations consisting of the indemnification by any Company of (i) the officers, directors, employees and agents of the Companies, to the extent permissible under the corporation law of the jurisdiction in which such Indebtedness Company is organized, (ii) commercial banks, investment bankers and other independent consultants or other significant change in professional advisors pursuant to agreements relating to the terms underwriting of such Indebtedness);
the Companies’ securities or the rendering of banking or professional services to the Companies, (iii) Indebtedness landlords, licensors, licensees and other parties pursuant to agreements entered into in the ordinary course of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMCbusiness by the Companies, and (Biv) of PMC other Persons under agreements relating to any such subsidiary, in Acquisitions permitted under Section 5.13 hereof; provided that each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) foregoing is only permitted to the extent that such indemnity obligation is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result the borrowing of money or the assumption extension of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)credit.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Nn Inc)
Borrowing. Borrower will not:
(a) not create, incur, assume or suffer to exist any liability for Borrowed Money without Lender's prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Borrower may incur the following: (i) indebtedness to Lender; (ii) indebtedness of Borrower secured by mortgages, encumbrances or liens expressly permitted by section 7.3; (iii) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than one hundred eighty twenty (180120) days from the billing date or more than sixty (60) days from the due date, in each case and that were incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
; (biv) createborrowings incurred in the ordinary course of its business and not exceeding $100,000.00 in the aggregate outstanding at any one time; (v) borrowed money not to exceed $250,000.00 in the aggregate outstanding at any one time incurred by Borrower or a subsidiary after the Closing Date; (vi) purchase money debt, incurfinance or capital leases incurred in the ordinary course of business with respect to assets acquired by Borrower or a subsidiary after the Closing Date, assume provided that (A) each such purchase money, finance or suffer capital lease arrangement does not exceed the cost of the assets acquired or leased; and (B) any lien securing such purchase money, finance or capital lease arrangement does not extend to exist the Collateral or any liability assets or property other than that purchased or leased; (vii) indebtedness for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, borrowed money as set forth on SCHEDULE 7.1, including any extensions or renewals 7.1 of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreementsand replacements, refinancings and relendings thereof;
(iv) Indebtedness (A) that is secured by purchase money security interests . Borrower will not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower will not:
(a) not create, incur, assume or suffer to exist any liability for borrowed money except: (i) indebtedness to Lender, together with any refinancing, renewal or extension thereof; (ii) indebtedness of Borrower secured by mortgages, encumbrances or liens permitted by Section 11(b) together with any refinancing, renewal or extension thereof so long as the aggregate principal amount and material terms of such indebtedness are not increased or worsened thereby; (iii) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than one hundred eighty twenty (180120) calendar days from the billing date or more than sixty thirty (6030) calendar days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
; (biv) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as indebtedness set forth on SCHEDULE 7.1Schedule 11(a) together with any refinancing, including any extensions renewal or renewals of extension thereof so long as the Indebtedness (provided that there is no increase in the aggregate principal amount of such Indebtedness or other significant change in the and material terms of such Indebtedness);
(iii) Indebtedness of (A) any direct indebtedness are not increased or indirect subsidiary of PMC to another subsidiary of PMC, worsened thereby; and (Bv) to the extent not included in subparagraphs (i)-(iv) above, borrowings incurred in the ordinary course of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests its business and not and not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred 500,000 in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not outstanding at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, time. Borrower will not make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money borrowed money to any Person third person or entity (other than Lender, to the extent permitted by this Agreement Note or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.”
Appears in 1 contract
Borrowing. Borrower will not:No Company shall create, incur or have outstanding any obligation for borrowed money or any Indebtedness of any kind; provided, that this Section 5.8 shall not apply to any of the following (without duplication):
(a) createthe Loans and all other Indebtedness now owing by Borrower to Agent and the Banks under this Agreement;
(b) unsecured current Indebtedness (including the funded and/or unfunded reserves for self insurance liabilities, incurbut excluding Indebtedness incurred to a bank or other financial institution customarily engaged in the business of lending money, assume or suffer except as NAI-1502980324v12 permitted pursuant to exist any liability for accounts payable to trade creditors and current operating expenses subpart (other than for borrowed moneyd) which are aged more than one hundred eighty (180below) days from incurred by the billing date or more than sixty (60) days from the due date, in each case incurred Companies in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsbusiness;
(bc) createIndebtedness for Taxes, incurassessments and governmental charges to the extent that payment thereof shall not be required to be made by Section 5.2(a) hereof;
(d) unsecured Indebtedness incurred under lines of credit established by Agent or other financial institutions customarily engaged in the business of lending money; provided, assume however, that the maximum amount of Indebtedness permitted by this subpart (d) shall when aggregated with any Indebtedness outstanding under Sections 5.8(e) and 5.8(j) hereof not exceed One Hundred Million Dollars ($100,000,000) at any time;
(e) unsecured Subordinated Indebtedness evidenced by promissory notes issued by Borrower to employees or suffer former employees in partial payment for common shares redeemed by Borrower so long as the aggregate principal amount of such Indebtedness when aggregated with any Indebtedness outstanding under Sections 5.8(d) and 5.8(j) hereof does not exceed One Hundred Million Dollars ($100,000,000) at any time;
(f) loans to exist a Company from a Company so long as each such Company is Borrower or a Guarantor of Payment;
(g) Indebtedness to insurance companies secured by a pledge of the cash surrender value of life insurance policies owned by Borrower or any liability for Borrowed Money of its Subsidiaries; provided, however, that the maximum amount of Indebtedness permitted by this subpart ("Indebtedness"g) exceptshall at no time exceed the cash surrender value of the life insurance policies pledged with respect thereto;
(h) unsecured Indebtedness arising pursuant to the deferment of payment of any insurance premiums by Borrower;
(i) liabilities created any (i) loans granted to a Company for the purchase of fixed assets, or (ii) Indebtedness incurred by a Company in connection with any Capital Leases, so long as the aggregate amount of all such loans and Capital Leases for all Companies (excluding Capital Leases between Borrower or pursuant to this Agreementa Subsidiary Guarantor and a Subsidiary Guarantor) does not exceed Twenty-Five Million Dollars ($25,000,000) at any time;
(iij) existing unsecured Subordinated Indebtedness on of Borrower incurred to a seller to finance all or part of an Acquisition permitted pursuant to Section 5.13 hereof, so long as the date aggregate outstanding amount of this Agreementall such Indebtedness for all such Acquisitions does not when aggregated with any Indebtedness outstanding under Sections 5.8(d) and 5.8(e) hereof exceed One Hundred Million Dollars ($100,000,000) at any time;
(k) unsecured Indebtedness issued pursuant to the Senior Note Purchase Agreements, in, and all guaranties by any Company of such Indebtedness, so long as set forth on SCHEDULE 7.1the aggregate outstanding amount of all such Indebtedness does not exceed Seventy-five Million Dollars ($75,000,000);
(l) Indebtedness incurred under a Permitted Receivables Facility for the issuance of letters of credit, including any extensions or renewals of so long as the Indebtedness (provided that there is no increase in the aggregate outstanding amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests does not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar One Hundred Million Dollars ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50100,000,000).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Credit Party for the purchase or lease of fixed assets (and refinancings of such loans or capital leases), assume which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or suffer leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Credit Parties shall not exceed Five Million Dollars ($5,000,000) at any time outstanding;
(c) any loans granted to exist or Capitalized Lease Obligations entered into by any liability Foreign Subsidiary for accounts payable to trade creditors the purchase or lease of fixed assets (and current operating expenses refinancings of such loans or Capitalized Lease Obligations), which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Foreign Subsidiaries shall not exceed Ten Million Dollars (other than for borrowed money$10,000,000) which are aged more than one hundred eighty at any time outstanding;
(180d) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not increase after the Closing Date);
(e) loans to a Company from a Company so long as each case incurred such Company is a Credit Party;
(f) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. (a) The Loans shall, at the option of the Borrower will notand subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans, provided that (i) the Swingline Loans shall be made and maintained as Base Rate Loans and (ii) all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. In order to make a Borrowing (other than (x) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(c), (y) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(d), or (z) continuations or conversions of outstanding Loans made pursuant to Section 2.12), the Borrower shall deliver to the Administrative Agent a fully executed, irrevocable notice of borrowing in the form of Exhibit B‑1 (the “Notice of Borrowing”) no later than 11:00 a.m. three Business Days prior to each Borrowing of LIBOR Loans and not later than 10:00 a.m. on the same Business Day prior to each Borrowing of Base Rate Loans. Upon its receipt of the Notice of Borrowing, the Administrative Agent shall promptly notify each Lender of the proposed borrowing. Notwithstanding anything to the contrary contained herein:
(ai) createeach Borrowing of Base Rate Loans shall be in a principal amount not less than $3,000,000 or, incurif greater, assume or suffer to exist any liability for accounts payable to trade creditors an integral multiple of $1,000,000 in excess thereof, and current operating expenses each Borrowing of LIBOR Loans shall be in a principal amount not less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due dateor, in each case incurred if less than the minimum amount, in the ordinary course amount of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this Agreementaggregate Unutilized Commitments);
(ii) existing Indebtedness on if the date Borrower shall have failed to designate the Type of this AgreementLoans in a Notice of Borrowing, then the Loans shall be made as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);Base Rate Loans; and
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC if the Borrower shall have failed to another subsidiary of PMC, and (B) of PMC specify an Interest Period to be applicable 11863223v8 24740.00050 to any such subsidiaryBorrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period of one month.
(b) Not later than 1:00 p.m. on the requested Borrowing Date, each Lender will make available to the Administrative Agent at the Payment Office an amount, in each case where Dollars and in immediately available funds, equal to its Ratable Share of such subsidiary is a Borrower under this Agreement requested Borrowing as its Loan or under one Loans. Upon satisfaction or waiver of the Affiliated Loan Agreements;
applicable conditions set forth in Section 3.2 (iv) Indebtedness (A) that and, if such Borrowing is secured by purchase money security interests not exceeding to occur on the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basisClosing Date, (B) that is incurred in connection with interest rate protection agreementsSection 3.1), (C) that is incurred as a result the Administrative Agent will make the proceeds of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated Loans available to the Obligations pursuant Borrower in accordance with Section 2.3(a) by causing an amount of like funds equal to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues amount received from the Lenders to be in excess credited to an account of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)Borrower.
(c) except In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 3:00 p.m. on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 5:00 p.m. on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, upon satisfaction or waiver of the applicable conditions set forth in Section 3.2 (and, if such Borrowing is to occur on SCHEDULE 7.1the Closing Date, Section 3.1), the Administrative Agent will make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent.
(d) With respect to any Person outstanding Swingline Loans, the Swingline Lender may at any time (other than Lender, to the extent permitted by this Agreement whether or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no not an Event of Default has occurred and is continuing under continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m. one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m. on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its Ratable Share of the Refunded Swingline Loans. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment 11863223v8 24740.00050 of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s Ratable Share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.16(b).
(e) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(d) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its Ratable Share of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the time Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such creation amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(e), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s Ratable Share of such payment.
(f) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Swingline Loans pursuant to Section 2.2(d) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(e) shall be absolute and unconditional and shall not be prohibited after affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence and during the or continuance of any Default or Event of Default, (iii) 11863223v8 24740.00050 the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in Section 2.2(a), or (iv) the failure of any conditions set forth in Section 3.2 or elsewhere herein to be satisfied.
Appears in 1 contract
Samples: Credit Agreement (Unum Group)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Credit Party for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), assume which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or suffer leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Credit Parties shall not exceed Five Million Dollars ($5,000,000) at any time outstanding;
(c) any loans granted to exist or Capitalized Lease Obligations entered into by any liability Foreign Subsidiary for accounts payable to trade creditors the purchase or lease of fixed assets (and current operating expenses refinancings of such loans or Capitalized Lease Obligations), which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Foreign Subsidiaries shall not exceed Ten Million Dollars (other than for borrowed money$10,000,000) which are aged more than one hundred eighty at any time outstanding;
(180d) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof but only to the extent that the principal amount thereof does not increase after the Closing Date);
(e) loans to a Company from a Company so long as each case incurred such Company is a Credit Party;
(f) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. (a) The Loans shall, at the option of the Borrower will notand subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans, provided that (i) the Swingline Loans shall be made and maintained at the LIBOR Market Index Rate plus the Applicable Percentage for LIBOR Loans as in effect at such time and (ii) all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(c), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(d),(y) conversions of Revolving Loans upon exercise of the Term-Out Option, which shall be made pursuant to Section 2.1(b) or (z) continuations or conversions of outstanding Loans made pursuant to Section 2.12), the Borrower shall deliver to the Administrative Agent a fully executed, irrevocable notice of borrowing in the form of Exhibit B-1 (the “Notice of Borrowing”) no later than 11:00 a.m., Charlotte time three Business Days prior to each Borrowing of LIBOR Loans and not later than 10:00 a.m., Charlotte time, on the same Business Day prior to each Borrowing of Base Rate Loans. Upon its receipt of the Notice of Borrowing, the Administrative Agent shall promptly notify each Lender of the proposed borrowing. Notwithstanding anything to the contrary contained herein:
(ai) createeach Borrowing of Base Rate Loans shall be in a principal amount not less than $3,000,000 or, incurif greater, assume or suffer to exist any liability for accounts payable to trade creditors an integral multiple of $1,000,000 in excess thereof, and current operating expenses each Borrowing of LIBOR Loans shall be in a principal amount not less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due dateor, in each case incurred if less than the minimum amount, in the ordinary course amount of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or pursuant to this Agreementaggregate Unutilized Commitments);
(ii) existing Indebtedness on if the date Borrower shall have failed to designate the Type of this AgreementLoans in a Notice of Borrowing, then the Loans shall be made as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);Base Rate Loans; and
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC if the Borrower shall have failed to another subsidiary of PMC, and (B) of PMC specify an Interest Period to be applicable to any such subsidiaryBorrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period of one month.
(b) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender will make available to the Administrative Agent at the Payment Office an amount, in each case where Dollars and in immediately available funds, equal to its Ratable Share of such subsidiary is a Borrower under this Agreement requested Borrowing as its Loan or under one Loans. Upon satisfaction or waiver of the Affiliated Loan Agreements;
applicable conditions set forth in Section 3.2 (iv) Indebtedness (A) that and, if such Borrowing is secured by purchase money security interests not exceeding to occur on the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basisClosing Date, (B) that is incurred in connection with interest rate protection agreementsSection 3.1), (C) that is incurred as a result the Administrative Agent will make the proceeds of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated Loans available to the Obligations pursuant Borrower in accordance with Section 2.3(a) by causing an amount of like funds equal to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues amount received from the Lenders to be in excess credited to an account of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)Borrower.
(c) except In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $100,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as set forth on SCHEDULE 7.1provided hereinabove, the Administrative Agent will make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent.
(d) With respect to any Person outstanding Swingline Loans, the Swingline Lender may at any time (other than Lender, to the extent permitted by this Agreement whether or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no not an Event of Default has occurred and is continuing under continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.16(b).
(e) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(d) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its Ratable Share of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the time Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such creation amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(e), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s Ratable Share of such payment.
(f) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(d) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(e) shall be absolute and unconditional and shall not be prohibited after affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence and during the or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in Section 2.2(a), or (iv) the failure of any conditions set forth in Section 3.2 or elsewhere herein to be satisfied.
(g) All Term Loans made pursuant to Section 2.1(b) shall be made by the Lenders pro rata on the basis of their respective Commitments as in effect immediately prior to the Commitment Termination Date.
Appears in 1 contract
Samples: Credit Agreement (Unum Group)
Borrowing. Borrower will notshall not (nor shall it permit any of its Subsidiaries to) create, incur, or assume, directly or indirectly, any Debt, except for:
(a) create, incur, assume or suffer indebtedness of Borrower arising under this Credit Agreement and the other Loan Documents;
(b) trade payables arising in the ordinary course of business;
(c) Capital Leases in existence from time to exist any liability for accounts payable to trade creditors and time;
(d) current operating expenses liabilities (other than trade payables or for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due date, in each case incurred in the ordinary course of business business;
(e) the Pari Passu Loans;
(f) secured Debt (other than Bank Debt and paid within such time periodthe Pari Passu Loans, unless but including amounts owing under the same are being contested in good faith and by appropriate and lawful proceedingsXxxxxx Loan, under the Xxxxxxx Loan, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by under the ING Loan) in an aggregate amount at any time outstanding of up to the sum of (i) eighty-five percent (85%) of the book value of the outstanding accounts receivable of Borrower and its independent accountantsSubsidiaries (as such accounts receivable would be shown on a consolidated balance sheet of Borrower and its Subsidiaries prepared in accordance with GAAP), less allowance for doubtful accounts, plus (ii) seventy-five percent (75%) of the higher of book value or fair market value, determined in accordance with GAAP, of the assets of Borrower and its Subsidiaries, but excluding from such calculation under this clause (ii), the assets covered by clause (i), the Collateral, and good will;
(bg) createunsecured Debt in any amount provided that no more than $50,000,000.00 (which amount shall automatically increase to $100,000,000.00 upon the date that Borrower acquires 100% of the Gold Xxxx Stock) of unsecured indebtedness outstanding at any time (but excluding from such restriction, incurthe Senior Unsecured Notes, assume or suffer any refinancing thereof, the Senior Subordinated Notes or any refinancing thereof, any Debt in connection with a Permitted Capital Raising Transaction, the Grower Settlement Agreements, and the Foreign Subsidiary Debt) may provide for scheduled principal payments prior to exist the Maturity Date, and provided that with respect to any liability for Borrowed Money individual unsecured indebtedness of greater than $10,000,000.00 ("Indebtedness"which amount shall automatically increase to $20,000,000.00 upon the date that Borrower acquires 100% of the Gold Xxxx Stock) exceptincurred after the Closing Date, Borrower must demonstrate, to the satisfaction of the Administrative Agent, compliance with the covenants set forth at Section 10.12 hereof, on a pro forma basis taking into account such additional indebtedness, before such indebtedness is incurred;
(h) loans between Subsidiaries or between Borrower and Subsidiaries, in each case either (i) in the ordinary course and pursuant to the reasonable requirements of Borrower’s business and consistent with demonstratable past practices; provided that any such loans to Borrower are expressly subordinated to the prior payment in full in cash of all of Borrower’s indebtedness, obligations and liabilities to the Administrative Agent and the Syndication Parties under this Credit Agreement and the other Loan Documents; or (ii) in connection with a Receivables Securitization Program;
(i) liabilities created by on and after the Control Acquisition Date, Debt on account of Gold Xxxx’x subordinated capital certificates in the principal amount of up to $25,000,000.00 plus any premiums, fees or pursuant to this Agreement;other transaction costs in connection therewith, or any refinancing thereof; and
(iij) existing Indebtedness on and after the date Control Acquisition Date, Debt on account of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase Gold Xxxx’x senior notes in the principal amount of such Indebtedness up to $140,000,000.00 plus any premiums, fees or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred transaction costs in connection with interest rate protection agreementstherewith, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Defaultrefinancing thereof.
Appears in 1 contract
Borrowing. Borrower will not:No Company shall create, incur or have outstanding any obligation for borrowed money or any Indebtedness of any kind; provided, that this Section 5.8 shall not apply to any of the following (without duplication):
(a) createthe Loans and all other Indebtedness owing by Borrower or any other Credit Party to Agent and the Banks under this Agreement or any other Loan Document;
(b) unsecured current Indebtedness (including the funded and/or unfunded reserves for self insurance liabilities, incurbut excluding Indebtedness incurred to a bank or other financial institution customarily engaged in the business of lending money, assume or suffer except as permitted pursuant to exist any liability for accounts payable to trade creditors and current operating expenses subpart (other than for borrowed moneyd) which are aged more than one hundred eighty (180below) days from incurred by the billing date or more than sixty (60) days from the due date, in each case incurred Companies in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsbusiness;
(bc) createIndebtedness for Taxes, incurassessments and governmental charges to the extent that payment thereof shall not be required to be made by Section 5.2(a) hereof;
(d) unsecured Indebtedness incurred under lines of credit established by Agent or other financial institutions customarily engaged in the business of lending money; provided, assume however, that the maximum principal amount of Indebtedness permitted by this subpart (d) shall, when aggregated with the principal amount of any Indebtedness outstanding under Sections 5.8(e) and 5.8(j) hereof, not exceed One Hundred Seventy-Five Million Dollars ($175,000,000) at any time;
(e) unsecured Subordinated Indebtedness evidenced by promissory notes issued by Borrower to employees or suffer former employees in partial payment for common shares redeemed by Borrower so long as the aggregate principal amount of such Indebtedness, when aggregated with any Indebtedness outstanding under Sections 5.8(d) and 5.8(j) hereof, does not exceed One Hundred Seventy-Five Million Dollars ($175,000,000) at any time;
(f) loans to exist a Company from a Company so long as each such Company is Borrower or a Guarantor of Payment;
(g) Indebtedness to insurance companies secured by a pledge of the cash surrender value of life insurance policies owned by Borrower or any liability for Borrowed Money of its Subsidiaries; provided, however, that the maximum amount of Indebtedness permitted by this subpart ("Indebtedness"g) exceptshall at no time exceed the cash surrender value of the life insurance policies pledged with respect thereto;
(h) unsecured Indebtedness arising pursuant to the deferment of payment of any insurance premiums by Borrower;
(i) liabilities created any (i) loans granted to a Company for the purchase of fixed assets, or (ii) Indebtedness incurred by a Company in connection with any Capital Leases, so long as the aggregate amount of all such loans and Capital Leases for all Companies (excluding Capital Leases between Borrower or pursuant to this Agreementa Guarantor of Payment and a Guarantor of Payment) does not exceed Seventy-Five Million Dollars ($75,000,000) at any time;
(j) any (i) unsecured Indebtedness of Borrower in an aggregate principal amount outstanding not to exceed Thirty-Five Million Dollars ($35,000,000) and (ii) existing unsecured Subordinated Indebtedness on of Borrower, in each case, incurred to a seller to finance all or part of an Acquisition permitted pursuant to Section 5.13 hereof, so long as the date aggregate outstanding amount of this Agreementall such Indebtedness for all such Acquisitions does not, when aggregated with the principal amount of any Indebtedness outstanding under Sections 5.8(d) and 5.8(e) hereof, exceed One Hundred Seventy-Five Million Dollars ($175,000,000) at any time;
(k) unsecured Indebtedness issued pursuant to the Senior Note Purchase Agreements, in, and all guaranties by any Company of such Indebtedness, so long as set forth on SCHEDULE 7.1the aggregate outstanding principal amount of all such Indebtedness, including without duplication, does not exceed Two Hundred Fifty Million Dollars ($250,000,000) at any extensions or renewals of time;
(l) Indebtedness incurred under a Permitted Receivables Facility, so long as the Indebtedness (provided that there is no increase in the aggregate outstanding amount of such Indebtedness or other significant change in the terms of such Indebtedness);
does not exceed One Hundred Seventy-Five Million Dollars (iii$175,000,000) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)time.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness to Lender or any affiliate of Lender;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), assume which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or suffer leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Five Million Dollars ($5,000,000) at any time outstanding;
(c) the Indebtedness existing on the Closing Date, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof but only to exist the extent that the principal amount thereof does not increase after the Closing Date; provided that the principal amount of Indebtedness under the Senior Notes Indenture may be increased, refinanced or replaced, under terms and pursuant to documentation satisfactory to Lender in its reasonable discretion, to an amount not to exceed One Hundred Ten Million Dollars ($110,000,000) in the aggregate for all such Indebtedness);
(d) loans to, and guaranties of Indebtedness of, a Company from a Company so long as each such Company is a Credit Party;
(e) Indebtedness under any liability for accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due dateHedge Agreement, in each case incurred so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bf) createPermitted Foreign Subsidiary Loans and Investments;
(g) Indebtedness of Foreign Subsidiaries in excess of Permitted Foreign Subsidiary Loans and Investments so long as the aggregate amount of such Indebtedness, incurwhen aggregated with Permitted Foreign Subsidiary Loan and Investments incurred pursuant to subpart (e) of the definition of Permitted Foreign Subsidiary Loans and Investments, assume or suffer does not exceed Ten Million Dollars ($10,000,000) at any time outstanding;
(h) secured Indebtedness owing from Friction Products to exist any liability the State of Ohio incurred for Borrowed Money the purchase of specific equipment, in an aggregate amount not to exceed Seven Hundred Fifty Thousand Dollars ("Indebtedness"$750,000) exceptduring the Commitment Period;
(i) liabilities created by or pursuant to this Agreementordinary course trade accounts payable on customer deposits;
(iij) existing Indebtedness with respect to payments by Borrowers of insurance premiums on the date of this Agreementan installment basis, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount ordinary course of such Indebtedness or other significant change in the terms of such Indebtedness);business; or
(iiik) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreementsa sale and leaseback transaction permitted pursuant to Section 5.12(g) hereof;
(l) other unsecured Indebtedness, (C) that is incurred as a result of in addition to the assumption of liabilities Indebtedness listed above, in an acquisition, and aggregate principal amount for all Companies not to exceed Five Hundred Thousand Dollars (D$500,000) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)outstanding.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Borrowing. Borrower will not:
shall not (anor shall it permit any of its Restricted Subsidiaries to) create, incur, assume or suffer permit to exist exist, directly or indirectly, any liability for accounts payable Debt, except for: (a) indebtedness of Borrower arising under this Credit Agreement and the other Loan Documents; (b) trade payables arising in the ordinary course of business; (c) (i) the Coffeyville Synthetic Lease Obligation, and (ii) Capital Leases in existence from time to trade creditors and time; (d) current operating expenses liabilities (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due date, in each case incurred in the ordinary course of business and paid within business; (e) Short Term Indenture Debt; (f) indebtedness on the date hereof as set forth in Schedule 12.1 attached principal amount of such time periodDebt is not increased; (g) Short Term Institutional Debt of Borrower under short term lines of credit, unless the same are being contested in good faith and by appropriate and lawful proceedingsprovided, and Borrower shall have set aside such reservesthat, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountants;
(b) create, incur, assume or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by the aggregate principal amount of all such Short Term Institutional Debt outstanding at any time is equal to or pursuant to this Agreement;
less than $40,000,000, and (ii) existing Indebtedness such Short Term Institutional Debt is not secured by a Lien on any assets of Borrower or any Restricted Subsidiary; (h) the Subordinated Debt; (i) Debt incurred after the date of this Agreement, as set forth on SCHEDULE 7.1hereof, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is Debt incurred in connection with interest rate protection agreementsany lien permitted under Section 12.3 hereof, (C) that is incurred as up to a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the maximum aggregate of all such Indebtedness described in this subparagraph shall not amount at any one time exceed of $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess (j) amounts payable under deferred compensation programs of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement Borrower or any subsequent agreement Restricted Subsidiary; (k) Debt owing by any Restricted Subsidiary to Borrower or to another Restricted Subsidiary; and (l) such other indebtedness agreed upon in writing between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of DefaultSyndication Parties.
Appears in 1 contract
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided, that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit or any other Indebtedness under this Agreement;
(b) any loans granted to or capital leases entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or capital leases), assume which loans and capital leases shall only be secured by the fixed assets being purchased, so long as the aggregate principal amount of all such loans and leases for all Companies, when combined with Indebtedness permitted under subsection (f) hereof, shall not exceed Twenty Million Dollars ($20,000,000) at any time outstanding;
(c) the Indebtedness existing on the Closing Date as set forth in Schedule 5.8 hereto (and any extension, renewal or suffer refinancing thereof so long as the principal amount thereof shall not be increased after the Closing Date);
(d) loans to exist a Company (including Foreign Subsidiaries) from a Company so long as each such Company is a Credit Party;
(e) Indebtedness under any liability for accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from the due dateHedge Agreement, in each case incurred so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(f) loans to a Company pursuant to state or other Governmental Authority industrial revenue bond financing, so long as the aggregate principal amount of all such financing for all Companies, when combined with Indebtedness permitted under subsection (b) createhereof, incurshall not exceed Twenty Million Dollars ($20,000,000) at any time outstanding;
(g) Indebtedness of a Mexican Subsidiary (whether or not secured by assets of such Foreign Subsidiary) up to the aggregate principal amount, assume or suffer for all Mexican Subsidiaries of Twenty Million Dollars ($20,000,000), provided that neither Borrower nor any Domestic Subsidiary shall be a guarantor of such obligations;
(h) unsecured Subordinated Indebtedness created pursuant to exist any liability for Borrowed Money documentation in form and substance reasonably satisfactory to Agent, not to exceed Twenty-Five Million Dollars ("$25,000,000) so long as the proceeds are applied in accordance with Section 2.15(c)(ii) hereof and Agent approves the form and substance of the documentation prior to the incurrence of the Indebtedness") except; and
(i) liabilities created by or pursuant to this Agreement;
(ii) existing Indebtedness on the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the amount of such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, Permitted Mexican Subsidiary Loans and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall not at any time exceed $25,000,000.00; PROVIDED, HOWEVER, that so long as PMC's cash balance is and continues to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar ($1.00) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50)Investments.
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.
Appears in 1 contract
Samples: Credit and Security Agreement (Shiloh Industries Inc)
Borrowing. Borrower will notNo Company shall create, incur or have outstanding any Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:
(a) createthe Loans, incurthe Letters of Credit and any other Indebtedness under this Agreement;
(b) any loans granted to or Capitalized Lease Obligations entered into by any Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized Lease Obligations), assume which loans and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased or suffer to exist leased, so long as the aggregate principal amount of all such loans and Capitalized Lease Obligations for all Companies shall not exceed Twenty-Five Million Dollars ($25,000,000) at any liability for accounts payable to trade creditors and current operating expenses time outstanding;
(other than for borrowed moneyc) which are aged more than one hundred eighty (180) days from the billing date or more than sixty (60) days from Indebtedness existing on the due dateClosing Date, in addition to the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof so long as the principal amount thereof shall not be increased after the Closing Date);
(d) loans to a Company from a Company so long as each case incurred such Company is a Credit Party;
(e) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been entered into in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings, and Borrower shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower and its independent accountantsnot for speculative purposes;
(bf) create, incur, assume unsecured Indebtedness incurred or suffer to exist any liability for Borrowed Money ("Indebtedness") except
(i) liabilities created by or assumed in connection with an Acquisition permitted pursuant to this Agreement;
(ii) existing Indebtedness on Section 5.13 hereof, so long as the date of this Agreement, as set forth on SCHEDULE 7.1, including any extensions or renewals of the Indebtedness (provided that there is no increase in the aggregate principal amount of all such Indebtedness or other significant change in the terms of such Indebtedness);
(iii) Indebtedness of (A) any direct or indirect subsidiary of PMC to another subsidiary of PMC, and (B) of PMC to any such subsidiary, in each case where such subsidiary is a Borrower under this Agreement or under one of the Affiliated Loan Agreements;
(iv) Indebtedness (A) that is secured by purchase money security interests not exceeding the lesser of $3,000,000.00 or two percent (2%) of PMC's tangible assets on a consolidated basis, (B) that is incurred in connection with interest rate protection agreements, (C) that is incurred as a result of the assumption of liabilities in an acquisition, and (D) that is expressly subordinated to the Obligations pursuant to written terms reasonably acceptable to Lender, but the aggregate of all such Indebtedness described in this subparagraph shall Acquisitions by all Companies does not exceed Twenty-Five Million Dollars ($25,000,000) at any time exceed outstanding;
(g) Indebtedness of a Foreign Subsidiary, up to an aggregate principal amount (not including any other Indebtedness permitted pursuant to subsection (h) below) of up to Five Million Dollars ($25,000,000.00; PROVIDED5,000,000) at any time outstanding for such Foreign Subsidiary, HOWEVERprovided however, that so long as PMC's cash balance is and continues the aggregate amount of Indebtedness for all Foreign Subsidiaries (not including any other Indebtedness permitted pursuant to be in excess of the Overall Maximum Loan Amount, the $25,000,000.00 limit may be increased as follows: for each one dollar subsection (h) below) shall not exceed Ten Million Dollars ($1.0010,000,000) of such excess, the maximum aggregate Indebtedness may increase by fifty cents ($0.50).
(c) except as set forth on SCHEDULE 7.1, make prepayments over $1,000,000 on at any existing or future indebtedness for Borrowed Money to any Person (other than Lender, to the extent permitted by this Agreement or any subsequent agreement between Borrower and Lender). Any permitted Indebtedness, prepayment or other exception set forth above shall be permitted to be created only so long as no Event of Default has occurred and is continuing under this Agreement at the time of such creation and shall be prohibited after the occurrence and during the continuance of any Event of Default.outstanding;
Appears in 1 contract
Samples: Credit Agreement (Agilysys Inc)