Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other than: (i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt; (ii) Debt under the Loan Documents; (iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes; (iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders; (v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding; (vi) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; (vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries; (viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;
Appears in 4 contracts
Samples: Convertible Notes Commitment Agreement (Accuride Corp), Senior Secured Debtor in Possession Credit Agreement (Accuride Corp), Restructuring Support Agreement (Accuride Corp)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iiiii) Debt in respect of Hedge Agreements incurred in the ordinary course case of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party, (B) Debt owed to Party or any nonwholly-Debtor owned Subsidiary by of any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi)Party, provided that, in each case, such Debt (xy) shall be on terms acceptable to the extent that the Administrative Agent requires that an intercompany loan is and (z) shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory unless payable to the Administrative Agent to Borrower) by their terms be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder subordinated to the Obligations of such the Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security Parties under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersLoan Documents;
(viii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsement endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt consisting of guaranty Obligations (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the ordinary course aggregate at any time outstanding 10% of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;a Default under Section 5.04.
Appears in 4 contracts
Samples: Term Loan Agreement (Hersha Hospitality Trust), Credit Agreement (Hersha Hospitality Trust), Term Loan Agreement (Hersha Hospitality Trust)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r(y) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course case of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party, (B) Debt owed to Party or any nonwholly-Debtor owned Subsidiary by of any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in other than an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(viExcluded Subsidiary), provided that, in each case, such Debt (x1) shall be on terms acceptable to the extent that the Administrative Agent requires that an intercompany loan is and (2) shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory unless payable to the Administrative Agent to Borrower) by their terms be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder subordinated to the Obligations of such the Loan Party Parties under this Agreement and the other Loan Documents Documents, and (z) each intercompany loan in the case of any Excluded Subsidiary, Debt owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Ordersany other Excluded Subsidiary;
(vii) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section 5.02(a)(iv5.02(a)(iii) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 7,500,000 at any time outstanding,
(C) (1) Capitalized Leases (other than with respect to Real Property) not to exceed in the aggregate $25,000,000 at any time outstanding, and (2) in the case of Capitalized Leases (other than with respect to Real Property) to which any Subsidiary of a Loan Party is a party, Debt of such Loan Party of the type described in clause (i) of the definition of “Debt” guaranteeing the Obligations of such Subsidiary under such Capitalized Leases,
(D) [intentionally omitted],
(E) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practice,
(F) Unsecured Debt incurred in the ordinary course of business for borrowed money, maturing within one year from the date created, and aggregating, on a Consolidated basis, not more than $25,000,000 at any one time outstanding, and
(G) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Unencumbered Assets, the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement;
(viiii) In the case of the Parent Guarantor or any of its Subsidiaries:
(A) Debt under Customary Carve-Out Agreements,
(B) the Surviving Debt described on Schedule 4.01(o) hereto and any Refinancing Debt, extending, refunding, or refinancing such Surviving Debt, and
(C) Recourse Debt (whether secured or unsecured) in an amount not to exceed in the aggregate (1) 20% of Total Asset Value plus (2) the Facility amount; provided, however, that any recourse guaranties of Non-Recourse Debt (exclusive of Customary Carve-Out Agreements) otherwise permitted under this clause (C) shall not exceed in the aggregate 5% of Total Asset Value; provided further that during any period in which the Parent Guarantor shall maintain a Debt Rating of BBB-/Baa3 or better, then the Parent Guarantor and its Subsidiaries shall be permitted to incur Recourse Debt in any amount that would not result in a failure by the Borrower or the Parent Guarantor to comply with any of the financial covenants applicable to it contained in Section 5.04;
(iv) in the case of the Parent Guarantor, Debt under the Loan Documents; and
(v) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;.
Appears in 3 contracts
Samples: Revolving Credit Agreement (Digital Realty Trust, L.P.), Revolving Credit Agreement (Digital Realty Trust, L.P.), Revolving Credit Agreement (Digital Realty Trust, Inc.)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition in the case of the Borrower,
(A) Debt outstanding on in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or commodity pricing, in each case incurred in the Petition Date ordinary course of business and consistent with prudent business practice,
(B) Debt owed to a Loan Party; and
(C) Debt incurred by the Borrower (which may be guaranteed by the Guarantors) in connection with the issuance of unsecured senior notes (the “Permitted Senior Notes”); provided that (1) no Default or Event of Default shall have occurred and be continuing at the time of any such issuance or would be caused by such issuance, (2) the Borrower shall be in pro forma compliance with the financial covenants set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without Section 5.04 after giving effect to any extensions, renewals the incurrence of such Debt and replacements shall provide the Administrative Agent and Lenders with a pro forma compliance certificate evidencing such compliance at least 10 days (or such shorter period as may be agreed to by the Administrative Agent) in advance of any such Debt;Debt issuance, (3) such Debt shall rank no higher than pari passu with the Obligations, (4) the maturity of such Debt shall be at least six (6) months after the latest Termination Date, (5) the terms of such Debt may not restrict, limit or otherwise encumber the ability of the Borrower or any Subsidiary to grant Liens in favor of the Administrative Agent or any Lender under this Agreement or any other Loan Document, and (6) such Debt shall otherwise be issued on terms and conditions reasonably satisfactory to the Administrative Agent.
(ii) in the case of any Subsidiary of the Borrower, (a) with respect to any Subsidiary of the Borrower that is a Loan Party, Debt owed to the Borrower or to any other Loan Party and (b) with respect to any Subsidiary of the Borrower that is not a Loan Party, Debt owed to any other Subsidiary of the Borrower that is not a Loan Party; and
(iii) the Guaranties and, in the case of the Loan Parties and their Subsidiaries,
(A) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party So long as no Default has occurred and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant tois continuing, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed in the aggregate $10,000,000 at any time outstanding; provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (B) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (B) in the event that a Default has occurred and is continuing;
(C) Capitalized Leases (other than those permitted by clause (F) below) not to exceed in the aggregate $10,000,000 at any time outstanding, and in the case of Capitalized Leases to which any Subsidiary of a Loan Party is a party, Debt of the Loan Party of the type described in clause (j) of the definition of Debt guaranteeing the obligations of such Subsidiary under the Capitalized Leases permitted under this clause (C);
(D) Debt of any Person that becomes a Subsidiary of the Borrower after the Effective Date in accordance with the terms of Section 5.02(f) which Debt does not exceed $10,000,000 in the aggregate and is existing at the time such Person becomes a Subsidiary of the Borrower;
(E) So long as no Default has occurred and is continuing, other unsecured Debt of the Borrower in an aggregate principal amount equal not to exceed $2,500,000 10,000,000 at any one time outstanding; provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (E) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (E) in the event that a Default has occurred and is continuing;
(viF) endorsement the Surviving Debt set forth on Schedule 5.02(b), and any Debt extending the maturity of, or refunding or refinancing, in whole or in part, any Surviving Debt; provided that the terms of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are otherwise permitted by the Loan Documents; provided further that the principal amount of such Surviving Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing;
(G) Contingent obligations of the Loan Parties or any of their Subsidiaries in an amount not to exceed $10,000,000; provided that such contingent obligations are unsecured;
(H) Endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viiiI) Debt in respect of letters of credit in an aggregate amount not to exceed $10,000,000 at any bankers’ acceptance, letter time outstanding;
(J) Debt in respect of credit, warehouse receipt or similar facilities entered into indemnification obligations in connection with bonds and letters of credit related to self insurance and insurance programs and policies of the ordinary course Loan Parties and their respective Subsidiaries;
(K) Obligations in respect of business;the Borrower’s Non-Qualified Deferred Compensation Plan to the extent of assets of such plan are on the Borrower’s balance sheet; and
(L) Guarantee obligations of the Guarantors in respect of Debt of the Borrower permitted pursuant to Section 5.02(b)(i)(C).
Appears in 3 contracts
Samples: Credit Agreement (Cracker Barrel Old Country Store, Inc), Credit Agreement (Cracker Barrel Old Country Store, Inc), Credit Agreement (Cracker Barrel Old Country Store, Inc)
Debt. CreateNot, incur, assume or and not suffer to exist, or permit any of its Subsidiaries to Loan Party to, create, incur, assume or suffer to existexist any Debt, any except for the following Debt other thanof the Borrower and/or Loan Party Subsidiaries:
(ia) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness Obligations under the Prepetition Loan Documents this Agreement and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the other Loan Documents;
(iiib) Debt in respect of Hedge Agreements Capital Leases and purchase money Debt, in each case incurred in for the ordinary course purpose of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s financing all or any part of its Subsidiaries’ operationsthe cost of acquiring, in either caserepair, construction or improvement of fixed or capital assets; provided that the aggregate principal amount of all such Hedge Agreements are bona fide hedging activities and are Debt at any time outstanding shall not entered into for speculative purposesexceed $100,000;
(iv) (Ac) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary of the Borrower to any Loan Party in an amount not exceeding that is a Wholly-Owned Subsidiary of the amount Borrower or Debt of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) Loan Party that is a Wholly-Owned Subsidiary of the Borrower to the extent Borrower or another Loan Party that is a Wholly-Owned Subsidiary of the Administrative Agent requires Borrower; provided that an intercompany loan is all such Debt shall be evidenced by a promissory note, such promissory global intercompany demand note shall be in form and substance satisfactory to the Administrative AgentAgent and pledged and delivered to the Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary and the obligations under such demand note shall be subject subordinated to subordination provisions the Obligations hereunder in form and substance a manner satisfactory to the Administrative Agent Agent;
(d) Debt described in Section 7.1 of the Disclosure Letter as of the Closing Date, and any Permitted Refinancing thereof;
(e) Contingent Obligations arising with respect to be contained in the respective intercompany note, subordinating the customary indemnification obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orderspurchasers in connection with dispositions permitted under Section 7.4;
(vf) Debt secured arising from the honoring by Liens permitted by Section 5.02(a)(iva bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Debt is extinguished within two (2) and Capitalized Leases arising after Business Days of notice to the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstandingBorrower or the relevant Subsidiary of its incurrence;
(vig) endorsement Debt incurred in connection with the financing of negotiable instruments for deposit or collection or similar transactions insurance premiums in the ordinary course of business;
(viih) guaranties by the Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of the Borrower or guaranties by any Subsidiary thereof of the Debt of the Borrower in each case so long as such Debt is otherwise permitted under Section 7.1(a) or (b);
(i) Debt under a Permitted AR Facility;
(j) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees Hedging Obligations;
(k) unsecured Debt of the Borrower or any Subsidiary (i) that is convertible into Stock or Stock Equivalents and is validly subordinated by its Subsidiaries;
terms to the payment of the Obligations on terms which shall provide that no payments of principal or interest may be made on such Debt prior to the Prepayment Date, (viiiii) Debt that is validly subordinated by its terms to the payment of the Obligations on terms reasonably satisfactory to the Agent or (iii) in respect of earn-out, purchase price adjustment and similar obligations; provided that the aggregate principal amount of all such Debt under this clauses (ii) and (iii) at any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;time outstanding shall not exceed $10,000,000.
Appears in 3 contracts
Samples: Credit Agreement (Avinger Inc), Credit Agreement (Avinger Inc), Credit Agreement (PDL Biopharma, Inc.)
Debt. Create, incur, assume or suffer to existassume, permit, guarantee, or permit otherwise become or remain, directly or indirectly, liable with respect to any of its Subsidiaries to createDebt, incur, assume or suffer to exist, any Debt other thanexcept:
(ia) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents evidenced by this Agreement and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the other Loan Documents;
(iiib) Debt incurred by any Loan Party; provided that at the time of incurrence of such Debt and after giving pro forma effect thereto, (i) the Borrower would be in compliance with Section 6.13 and (ii) no Unmatured Event of Default or Event of Default has occurred and is continuing at the time of such incurrence; provided, further, that the Loan Parties shall cause any Debt incurred pursuant to this clause (b) and owed to any Subsidiary that is not a Loan Party to be subordinated to the Loans pursuant to the Global Intercompany Note;
(c) Debt in the form of deferred compensation (including indemnification obligations, obligations in respect of Hedge Agreements purchase price adjustments, earnouts, non-competition agreements and other contingent arrangements) or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s any acquisition or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposesother Investment permitted under this Agreement;
(iv) (Ad) Debt owed by of (i) any Loan Party to any other Loan Party, (Bii) Debt owed any Subsidiary that is not a Loan Party to any non-Debtor other Subsidiary by any that is not a Loan Party and (Ciii) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount that is not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary Loan Party; provided, that the Loan Parties shall be subject cause any Debt incurred pursuant to subordination provisions in form this clause (d) and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to any Subsidiary that is not a Loan Party shall to be pledged by that Loan Party as security under subordinated to the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders Loans pursuant to the OrdersGlobal Intercompany Note;
(ve) Debt secured by Liens permitted by Section 5.02(a)(iv) and obligations in respect of self-insurance and obligations in respect of bids, tenders, trade contracts (other than for payment of Debt), leases (other than Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding;
(vi) endorsement Lease Obligations), public or statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of negotiable instruments for deposit a like nature and similar obligations or collection obligations in respect of letters of credit, bank guarantees or similar transactions instruments related thereto, in each case provided in the ordinary course of business;
(viif) Debt consisting arising in connection with customary cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements, and cash pooling arrangements among the Borrower or one or more Subsidiaries of guaranty Obligations the Borrower and a financial institution (or an in-house bank) and Debt rising from the honoring by a bank or financial institution of a check, draft or similar instrument drawn against insufficient funds, in each case in the ordinary course of business;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower Loan Parties and its Subsidiaries;
(viiih) Debt of a Loan Party or any Subsidiaries under (A) any Cash Management Agreement in the ordinary course of business or (B) any Hedging Agreement so long as such Hedging Agreements are used solely as a part of its normal business operations as a risk management strategy or hedge against changes resulting from market operations and not as a means to speculate for investment purposes on trends and shifts in financial or commodities markets; provided, solely in respect of this clause (h)(ii), to the extent and owed to any Subsidiary that is not a Loan Party, the payment of any obligations in respect thereof shall be subordinated to the prior payment in full of the Obligations on terms and conditions reasonably satisfactory to the Agent;
(i) Debt outstanding (or, in the case of a revolving facility, committed) on the Closing Date and (other than in the case of intercompany Debt) described in Schedule 6.1 hereof and Refinancing Debt in respect thereof;
(j) Debt incurred in the ordinary course of business under incentive, non-compete, consulting, deferred compensation, or other similar arrangements incurred by any Loan Party or Subsidiary;
(k) Debt incurred in the ordinary course of business with respect to the financing of insurance premiums;
(l) customary obligations of a general partner, manager or member of a Fund in respect of subscription credit facilities or similar credit facilities of such Fund relating to Liens granted as permitted by Section 6.2(h);
(m) other Debt of Subsidiaries (other than any Loan Party) in an aggregate principal amount not to exceed, at the time of incurrence of such other Debt, the greater of (i) $25,000,000 and (ii) 30% of Consolidated Adjusted EBITDA for the most recent four fiscal quarter period with respect to which financial statements have been, or were required to have been, delivered pursuant to Section 5.2(a) or (b), so long as after giving pro forma effect thereto, (i) the Borrower would be in compliance with Section 6.13 and (ii) no Unmatured Event of Default or Event of Default has occurred and is continuing at the time of incurrence of any bankers’ acceptance, letter such other Debt;
(n) other Debt in an aggregate amount outstanding at any time not in excess of credit, warehouse receipt or similar facilities entered into $10,000,000;
(o) guaranties by Loan Parties and Subsidiaries in respect of real estate lease obligations incurred in the ordinary course of business;
(p) guaranties by the Borrower of Debt of a Guarantor or guaranties by a Guarantor of Debt of the Borrower with respect to, in each case, to Debt otherwise permitted pursuant to this Section 6.1; provided, that if the Debt that is being guaranteed is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;
(q) Purchase Money Debt;
(r) Debt in respect of letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued or created in the ordinary course of business or consistent with past practice, in each case, in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other reimbursement-type obligations regarding workers’ compensation claims; and
(s) Debt assumed after the Closing Date in connection with any Permitted Acquisition (or similar Investment permitted hereunder); provided that (A) the only obligors with respect to any Debt assumed pursuant to this clause (i) shall be those Persons who were obligors of such Debt prior to such Permitted Acquisition or Investment (or in the case of a purchase of assets not constituting Equity Interests, the purchaser of such assets), (B) such Debt was not created in contemplation of such Permitted Acquisition or Investment, (C) to the extent such Debt is secured by a Lien on any assets or property of the Borrower or any of its Subsidiaries, it shall be subject to any applicable limitations set forth in Section 6.2(u) and (D) after giving pro forma effect thereto, the Borrower would be in compliance with Section 6.13.
Appears in 2 contracts
Samples: Increase Joinder and First Amendment (P10, Inc.), Credit Agreement (P10, Inc.)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on in the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, case of the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;Borrower,/2/
(ii) Debt under the Loan Documents;
(iiiA) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposespermitted under Section 5.02(m) hereof;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor a Subsidiary by any Loan Party and (C) Guarantor, which Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agentconstitute Pledged Debt, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject subordinated to subordination provisions the Facilities and on terms acceptable ---------- /1/ Liens in respect of Xxxxxxx County mini-mill and Reverse Repurchase Agreement will be included on existing lien schedule (Schedule 4.01(v)). /2/ Debt in respect of Senior Notes, Xxxxxxx County mini-mill, the Convertible Notes and the Repurchase Agreement will be included on the Surviving Debt Schedule. to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent to and such promissory notes shall be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to pledged as security for the Obligations of such Loan Party the holder thereof under this Agreement and the other Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement;
(C) so long as no Event of Default has occurred and is continuing, or would result therefrom, other unsecured Debt; provided that before and after giving effect to such Debt, the Borrower is in pro forma compliance with the covenants in Section 5.04, calculated based on the financial statements most recently delivered pursuant to Section 5.03 and as though such Debt had been incurred at the beginning of the four-quarter period covered thereby;
(ii) in the case of any Subsidiary of the Borrower,
(A) Debt owed to the Borrower or to a Subsidiary Guarantor, provided that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall be subordinated to the Facilities and on terms acceptable to the Administrative Agent and (z) each intercompany loan owed to a Loan Party shall be pledged evidenced by that Loan Party as security under the Collateral Documents promissory notes in form and will be subject substance satisfactory to a perfected Lien granted in favor of the Administrative Agent and such promissory notes shall be pledged as security for the Lenders Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the Ordersterms of the Security Agreement; and
(B) so long as no Event of Default has occurred and is continuing or would result therefrom, other unsecured Debt in an aggregate principal amount not to exceed $10 million at any one time outstanding;
(viii) in the case of the Borrower and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) so long as no Event of Default has occurred and is continuing, or would result therefrom, Debt secured by Liens permitted by Section 5.02(a)(iv); provided, that before and after giving effect to such Debt, the Borrower is in pro forma compliance with the financial covenants set forth in Section 5.04 hereof calculated based on the financial statements most recently delivered pursuant to Section 5.03 and as though such Debt was incurred at the beginning of the four-quarter period covered thereby,
(C) the Surviving Debt, and any Debt extending the maturity of, or refunding or refinancing, in whole or in part, any Surviving Debt, provided that the terms of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are otherwise permitted by the Loan Documents, provided further that the principal amount of such Surviving Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing, provided still further that the terms relating to principal amount, amortization, maturity, collateral (if any) and Capitalized Leases arising after subordination (if any), and other material terms taken as a whole, of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Closing Date Loan Parties or the Lender Parties than the terms of any agreement or instrument governing the Surviving Debt being extended, refunded or refinanced and the interest rate applicable to any such extending, refunding or refinancing Debt does not to exceed the then applicable market interest rate, and
(D) so long as no Event of Default has occurred and is continuing or would result therefrom, other secured Debt in an aggregate principal amount equal not to exceed $2,500,000 10 million at any one time outstanding;
(vi) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;.
Appears in 2 contracts
Samples: Credit Agreement (Steel Dynamics Inc), Credit Agreement (Steel Dynamics Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on in the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, case of the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;Borrower or a Subsidiary Guarantor,
(ii) Debt under the Loan Documents;
(iiiA) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposespermitted under Section 5.02(m) hereof;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor a Subsidiary by any Loan Party and (C) Guarantor, which Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) shall constitute Pledged Debt, (y) shall be subordinated to the extent that Facilities and on terms acceptable to the Administrative Agent requires that an intercompany loan is Joint Lead Arrangers and (z) shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative AgentJoint Lead Arrangers and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement;
(C) so long as no Event of Default has occurred and is continuing, or would result therefrom, (x) other unsecured Debt and (y) Debt secured by Liens permitted under Section 5.02(a)(vii); provided that before and after giving effect to such Debt, the Borrower is in pro forma compliance with the covenants in Section 5.04, calculated based on the financial statements most recently delivered pursuant to Section 5.03 and as though such Debt had been incurred at the beginning of the four-quarter period covered thereby;
(ii) in the case of any Subsidiary of the Borrower,
(A) Debt owed to the Borrower or to a Subsidiary Guarantor, provided that, in each case, such Debt (x) shall constitute Pledged Debt, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject subordinated to subordination provisions the Facilities and on terms acceptable to the Joint Lead Arrangers and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent to Joint Lead Arrangers and such promissory notes shall be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to pledged as security for the Obligations of such Loan Party the holder thereof under this Agreement and the other Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement;
(zB) each intercompany loan so long as no Event of Default has occurred and is continuing or would result therefrom, other unsecured Debt of the Subsidiaries of the Borrower in an aggregate principal amount not to exceed $100 million at any one time outstanding; and
(C) Debt of a newly-formed or newly-acquired Subsidiary owed to a Loan Party shall be pledged by that Loan Party as security under Person financing the Collateral Documents and will be subject to a perfected Lien granted in favor formation of such Subsidiary or the acquisition of all of the Administrative Agent and Equity Interests in or all or substantially all of the Lenders pursuant to the Ordersassets of such Subsidiary as contemplated by Section 5.02(f)(vii);
(viii) in the case of the Borrower and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) so long as no Event of Default has occurred and is continuing, or would result therefrom, Debt secured by Liens permitted by Section 5.02(a)(iv); provided, that before and after giving effect to such Debt, the Borrower is in pro forma compliance with the financial covenants set forth in Section 5.04 hereof calculated based on the financial statements most recently delivered pursuant to Section 5.03 and as though such Debt was incurred at the beginning of the four-quarter period covered thereby,
(C) the Surviving Debt, and Capitalized Leases arising after any Debt extending the Closing Date maturity of, or refunding or refinancing, in whole or in part, any Surviving Debt, provided that the terms of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are otherwise permitted by the Loan Documents, provided further that the principal amount of such Surviving Debt shall not be increased above the principal amount thereof outstanding immediately prior to exceed such extension, refunding or refinancing (except by an aggregate principal amount equal to $2,500,000 at a reasonable premium paid, and reasonable fees and expenses incurred, in connection with such refinancing), and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing, provided still further that the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any time outstanding;such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lender Parties than the terms of any agreement or instrument governing the Surviving Debt being extended, refunded or refinanced and the interest rate applicable to any such extending, refunding or refinancing Debt does not exceed the then applicable market interest rate, and
(vi) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viiD) Debt consisting of guaranty Obligations incurred by a Permitted Receivables Financing Subsidiary in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;a Permitted Receivables Financing.
Appears in 2 contracts
Samples: Credit Agreement (Steel Dynamics Inc), Credit Agreement (Steel Dynamics Inc)
Debt. CreateNot, incur, assume or suffer to exist, or and not permit any of its Subsidiaries to other Loan Party to, create, incur, assume or suffer to existexist any Debt, any Debt other thanexcept:
(ia) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersDocuments;
(vb) Debt secured by Liens permitted by Section 5.02(a)(iv11.2(d), and extensions, renewals and refinancings thereof; provided that the aggregate amount of all such Debt at any time outstanding shall not exceed $5,000,000;
(c) Debt of any Loan Party to another Loan Party or, to the extent permitted under Section 11.10 hereof, Debt of any Subsidiary to any Loan Party or of any Loan Party to any Subsidiary; provided that such Debt shall be evidenced by a demand note in form and Capitalized Leases arising after substance reasonably satisfactory to the Closing Date Administrative Agent and pledged and delivered to the Administrative Agent pursuant to the Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Borrowers hereunder in a manner reasonably satisfactory to the Administrative Agent;
(d) Subordinated Debt not to exceed an aggregate principal amount equal to exceeding $2,500,000 5,000,000 at any time outstanding;
(vie) endorsement Hedging Obligations incurred in favor of negotiable instruments a Lender or an Affiliate thereof for deposit bona fide hedging purposes and not for speculation;
(f) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(g) Endorsements for collection or similar transactions deposit of any commercial paper secured in the ordinary course of business;
(viih) Guaranties of Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiariesotherwise permitted hereunder;
(viiii) Debt assumed by any Loan Party in connection with an Acquisition permitted by Section 11.5 so long as the amount thereof does not exceed 50% of the total consideration to be paid by such Loan Party in respect of such Acquisition and no more than $1,000,000 of such assumed Debt is secured;
(j) Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers in connection with Acquisitions permitted under Section 11.5 and purchasers in connection with dispositions permitted under Section 11.5; and
(k) other unsecured Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;time exceeding $10,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Landauer Inc), Credit Agreement (Landauer Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on in the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, case of the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;Borrower,
(ii) Debt under the Loan Documents;
(iiiA) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or commodity pricing, in each case incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection consistent with the Borrower’s or any of its Subsidiaries’ operationsprudent business practice, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;and
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any nona direct or indirect wholly-Debtor owned Subsidiary by any Loan Party and (C) of the Borrower, which Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) shall constitute Pledged Debt, (y) shall be subordinated to any Debt of the extent that Borrower under the Loan Documents on terms reasonably acceptable to the Administrative Agent requires that an intercompany loan is and (z) if evidenced by a promissory notenotes, such promissory note shall be in form and substance satisfactory to the Administrative AgentAgent and shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Pledge Agreement.
(ii) in the case of any Subsidiary of the Borrower, Debt owed to the Borrower or to a wholly owned Subsidiary of the Borrower, provided that, in each case, to the extent such Debt exceeds $10,000,000 in the aggregate, such Debt (x) shall constitute Pledged Debt, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject on terms acceptable to subordination provisions the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent to and such promissory notes shall be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to pledged as security for the Obligations of such Loan Party the holder thereof under this Agreement and the other Loan Documents to which such holder is a party and (z) each intercompany loan owed delivered to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Ordersterms of the Pledge Agreement; and
(iii) the Guaranties and, in the case of the Loan Parties and their Subsidiaries,
(A) Debt under the Loan Documents;
(vB) So long as no Default has occurred and is continuing, Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed in the aggregate $10,000,000 at any time outstanding; provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (B) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (B) in the event that a Default has occurred and is continuing;
(C) Capitalized Leases (other than those permitted by clause (F) below) not to exceed in the aggregate $10,000,000 at any time outstanding, and in the case of Capitalized Leases to which any Subsidiary of a Loan Party is a party, Debt of the Loan Party of the type described in clause (j) of the definition of “Debt” guaranteeing the Obligations of such Subsidiary under the Capitalized Leases permitted under this clause (C);
(D) Debt of any Person that becomes a Subsidiary of the Borrower after the date hereof in accordance with the terms of Section 5.02(f) which Debt does not exceed $10,000,000 in the aggregate and is existing at the time such Person becomes a Subsidiary of the Borrower;
(E) So long as no Default has occurred and is continuing, other unsecured Debt of the Borrower in an aggregate principal amount equal not to exceed $2,500,000 10,000,000 at any one time outstanding; provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (E) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (E) in the event that a Default has occurred and is continuing;
(viF) endorsement the Surviving Debt, and any Debt extending the maturity of, or refunding or refinancing, in whole or in part, any Surviving Debt; provided that the terms of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are otherwise permitted by the Loan Documents and provided further that the principal amount of such Surviving Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing;
(G) Contingent obligations of the Loan Parties or any of their Subsidiaries in an amount not to exceed $10,000,000; provided that such contingent obligations are unsecured;
(H) Endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viiiI) Debt in respect of letters of credit in an aggregate amount not to exceed $2,000,000 at any bankers’ acceptance, letter time outstanding;
(J) Debt in respect of credit, warehouse receipt or similar facilities entered into indemnification obligations in connection with bonds and letters of credit related to self insurance and insurance programs and policies of the ordinary course Loan Parties and their respective Subsidiaries; and
(K) Obligations in respect of business;the Borrower’s Non-Qualified Deferred Compensation Plan to the extent of assets of such plan are on the Borrower’s balance sheet.
Appears in 2 contracts
Samples: Credit Agreement (CBRL Group Inc), Credit Agreement (CBRL Group Inc)
Debt. CreateNo Loan Party will, incur, assume or suffer to exist, or nor will it permit any of its Subsidiaries to to, create, incur, assume or suffer to exist, exist any Debt other thanexcept:
(ia) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(rpursuant to this Agreement;
(b) (including, without limitation, the Indebtedness Investments permitted under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Section 7.10 that would constitute Debt;
(iic) Debt under the Loan Documentsreserved;
(iiid) Debt in respect the form of Hedge Agreements incurred in the ordinary course of business taxes, assessments, governmental charges or levies and providing protection claims for labor, materials and supplies to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided extent that such Hedge Agreements are bona fide hedging activities and are payment therefor shall not entered into for speculative purposesbe past due;
(iv) (Ae) Debt owed by any of (i) a Loan Party owing to any other another Loan Party, (Bii) Debt owed to any non-Debtor Subsidiary by any a Loan Party and (C) owing to a Subsidiary that is not a Loan Party, so long as such Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory an intercompany note shall be in form and substance satisfactory subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences, (iii) any Subsidiary that is not a Loan Party owing to any other Subsidiary that is not a Loan Party and (iv) to the extent permitted by Section 7.10, any Subsidiary that is not a Loan Party owing to a Loan Party;
(f) all obligations of such Person arising under letters of credit (including standby and commercial);
(g) Debt of any Person that becomes a Subsidiary after the date hereof, incurred prior to the time such Person becomes a Subsidiary, that is not created in contemplation of or in connection with such Person becoming a Subsidiary and that is not assumed or Guaranteed by any other Subsidiary; and Debt secured by a Lien on property acquired by a Subsidiary, incurred prior to the acquisition thereof by such Subsidiary, that is not created in contemplation of or in connection with such acquisition and that is not assumed or Guaranteed by any other Subsidiary; and Debt refinancing (but not increasing the principal amount thereof, except by an amount equal to amounts paid for any accrued interest, breakage, premium, fees and expenses in connection with such refinancing) the Indebtedness described in this clause (g); provided that the aggregate amount of all such Debt referred to in this clause (g) at any one time outstanding shall not exceed $15,000,000;
(h) Debt incurred in connection with Capital Leases and purchase money Debt in an aggregate outstanding principal amount not to exceed $25,000,000 at any time;
(i) all Guarantees otherwise permitted by this Agreement;
(j) other Debt in an aggregate outstanding principal amount that, when added to the aggregate principal amount of Debt outstanding under this clause (j), does not exceed 15% of Consolidated Net Tangible Assets; and
(i) prior to the Borrower obtaining either (A) a BBB- rating or higher from S&P or (B) a Baa3 rating or higher from Xxxxx’x, an unlimited amount of unsecured Debt incurred by any Loan Party, so long as the Consolidated Leverage Ratio, on a pro forma basis after giving effect to the incurrence of such Debt, does not exceed 3.50 to 1.00; and (ii) after the Borrower obtains either (x) a BBB- rating or higher from S&P or (y) each intercompany loan owed a Baa3 rating or higher from Xxxxx’x, an unlimited amount of unsecured Debt incurred by a any Loan Party to a non-Debtor Subsidiary Party, so long as the Borrower shall be subject to subordination provisions in form and substance satisfactory compliance, on a pro forma basis, with the Consolidated Leverage Ratio after giving effect to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations incurrence of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding;
(vi) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;Debt.
Appears in 2 contracts
Samples: Credit Agreement (CONE Midstream Partners LP), Credit Agreement (CONE Midstream Partners LP)
Debt. Create, The Borrower will not incur, assume create, assume, or suffer permit to exist, and will not permit any Subsidiary to incur, create, assume, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(ia) Prepetition Debt outstanding on to the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents Lenders and the Senior Subordinated Notes) without giving effect Issuing Bank pursuant to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iiib) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposeslisted on Schedule 9.1;
(ivc) (A) unsecured Debt owed by any Loan Party a Guarantor to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is another Guarantor evidenced by a promissory notenote which is issued to satisfy any applicable state regulatory requirement for the issuance of a license for consumer loan activity, such promissory note being pledged to and held by the Agent as Collateral;
(d) Guarantee by the Borrower of real estate lease obligations of a Guarantor;
(e) subordinated Debt which is fully subordinated to the Obligations, on terms specifically including, without limitation, that payments on such Debt shall be prohibited if a Default exists or would result from such payment, the maturity date of such Debt shall be later than the later of (i) the Revolving Credit Termination Date or (ii) the Term Loan Termination Date, and other terms and conditions and pursuant to documentation, all in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersRequired Lenders;
(vf) Debt secured consisting of CSO LCs;
(g) Guarantees of the Debt permitted in clause (f) above;
(h) Debt assumed by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date Borrower or any Subsidiary in connection with Permitted Acquisitions in an aggregate amount not to exceed an aggregate principal amount equal to $2,500,000 5,000,000 at any one time outstanding;
(vii) endorsement purchase money Debt which in each case shall not exceed 100% of negotiable instruments for deposit or collection or similar transactions in the ordinary course lesser of businessthe total purchase price and the fair market value of such acquired asset as determined at the time of acquisition;
(viij) Guarantees by the Borrower or any Subsidiary of real estate lease obligations of an employee or agent of Borrower or a Guarantor; and
(k) Debt consisting of guaranty Obligations (other than Debt described in the ordinary course of business of the obligations of suppliers, customers, franchisees clauses (a) through and licensees of the Borrower and its Subsidiaries;
including (viiij) Debt above) in respect of an aggregate amount not to exceed $2,000,000.00 at any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;one time outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Ezcorp Inc), Credit Agreement (Ezcorp Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on in the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, case of the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;Borrower or a Subsidiary Guarantor,
(ii) Debt under the Loan Documents;
(iiiA) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposespermitted under Section 5.02(m) hereof;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor a Subsidiary by any Loan Party and (C) Guarantor, which Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) shall constitute Pledged Debt, (y) shall be subordinated to the extent that Facilities and on terms acceptable to the Administrative Agent requires that an intercompany loan is Joint Lead Arrangers and (z) shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative AgentJoint Lead Arrangers and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement;
(C) so long as no Event of Default has occurred and is continuing, or would result therefrom, (x) other unsecured Debt and (y) Debt secured by Liens permitted under Section 5.02(a)(vi); provided that before and after giving effect to such Debt, the Borrower is in pro forma compliance with the covenants in Section 5.04, calculated based on the financial statements most recently delivered pursuant to Section 5.03 and as though such Debt had been incurred at the beginning of the four-quarter period covered thereby;
(ii) in the case of any Subsidiary of the Borrower,
(A) Debt owed to the Borrower or to a Subsidiary Guarantor, provided that, in each case, such Debt (x) shall constitute Pledged Debt, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject subordinated to subordination provisions the Facilities and on terms acceptable to the Joint Lead Arrangers and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent to Joint Lead Arrangers and such promissory notes shall be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to pledged as security for the Obligations of such Loan Party the holder thereof under this Agreement and the other Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement;
(zB) each intercompany loan so long as no Event of Default has occurred and is continuing or would result therefrom, other unsecured Debt in an aggregate principal amount not to exceed $50 million at any one time outstanding; and
(C) Debt of a newly-formed or newly-acquired Subsidiary owed to a Loan Party shall be pledged by that Loan Party as security under Person financing the Collateral Documents and will be subject to a perfected Lien granted in favor formation of such Subsidiary or the acquisition of all of the Administrative Agent and Equity Interests in or all or substantially all of the Lenders pursuant to the Ordersassets of such Subsidiary as contemplated by Section 5.02(f)(vii);
(viii) in the case of the Borrower and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) so long as no Event of Default has occurred and is continuing, or would result therefrom, Debt secured by Liens permitted by Section 5.02(a)(iv5.02(a)(v); provided, that before and after giving effect to such Debt, the Borrower is in pro forma compliance with the financial covenants set forth in Section 5.04 hereof calculated based on the financial statements most recently delivered pursuant to Section 5.03 and as though such Debt was incurred at the beginning of the four-quarter period covered thereby, and
(C) the Surviving Debt, and Capitalized Leases arising after any Debt extending the Closing Date maturity of, or refunding or refinancing, in whole or in part, any Surviving Debt, provided that the terms of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are otherwise permitted by the Loan Documents, provided further that the principal amount of such Surviving Debt shall not be increased above the principal amount thereof outstanding immediately prior to exceed such extension, refunding or refinancing (except by an aggregate principal amount equal to $2,500,000 at any time outstanding;
a reasonable premium paid, and reasonable fees and expenses incurred, in connection with such refinancing), and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing, provided still further that the terms relating to principal amount, amortization, maturity, collateral (viif any) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
and subordination (vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliersif any), customersand other material terms taken as a whole, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptancesuch extending, letter refunding or refinancing Debt, and of credit, warehouse receipt or similar facilities any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the ordinary course Loan Parties or the Lender Parties than the terms of business;any agreement or instrument governing the Surviving Debt being extended, refunded or refinanced and the interest rate applicable to any such extending, refunding or refinancing Debt does not exceed the then applicable market interest rate.
Appears in 2 contracts
Samples: Credit Agreement (Steel Dynamics Inc), Credit Agreement (Steel Dynamics Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iiiii) Debt in respect of Hedge Agreements incurred in the ordinary course case of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to or any other Subsidiary of a Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi)Party, provided that, in each case, such Debt (xy) shall be on terms acceptable to the extent that the Administrative Agent requires that an intercompany loan is and (z) shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory unless payable to the Administrative Agent to Borrower) by their terms be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder subordinated to the Obligations of such the Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security Parties under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersLoan Documents;
(viii) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 5,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $5,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) the Surviving Debt described on Schedule 4.01(o) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt,
(D) Debt in respect of Hedge Agreements entered into by the Borrower and designed to hedge against fluctuations in interest rates or foreign exchange rates incurred as required by this Agreement or incurred in the ordinary course of business and consistent with prudent business practices,
(E) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement, and
(F) Recourse Debt not secured by any Lien in an amount not to exceed 5% of Total Asset Value at any one time outstanding;
(iv) Recourse Debt of the Borrower and/or Property-Level Subsidiaries of the Borrower and the JV Pro Rata Share of Recourse Debt of any Joint Venture, in each case as such Recourse Debt may be secured by Liens permitted by Section 5.02(a)(vii), in respect of which the Borrower or the Parent Guarantor has guaranteed the obligations of the Borrower and/or such Property-Level Subsidiary or Joint Venture under such Recourse Debt and the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement;
(v) in the case of the Parent Guarantor and the Borrower, Debt under Customary Carve-Out Agreements;
(vi) endorsement endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;; and
(vii) any other Debt consisting of guaranty Obligations not to exceed $5,000,000 in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt aggregate at any time outstanding in respect of all Loan Parties and which is not secured by any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;Lien on any Borrowing Base Asset.
Appears in 2 contracts
Samples: Credit Agreement (Campus Crest Communities, Inc.), Credit Agreement (Campus Crest Communities, Inc.)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iiiii) Debt in respect of Hedge Agreements incurred in the ordinary course case of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party, (B) Debt owed to Party or any nonwholly-Debtor owned Subsidiary by of any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi)Party, provided that, in each case, such Debt (xy) shall be on terms acceptable to the extent that the Administrative Agent requires that an intercompany loan is and (z) shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory unless payable to the Administrative Agent to Borrower) by their terms be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder subordinated to the Obligations of such the Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security Parties under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersLoan Documents;
(viii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred as required by this Agreement or incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under Section 5.04.
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsement endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt consisting of guaranty Obligations (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the ordinary course aggregate at any time outstanding 10% of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;a Default under Section 5.04.
Appears in 2 contracts
Samples: Credit Agreement (Hersha Hospitality Trust), Credit Agreement (Hersha Hospitality Trust)
Debt. Create, incur, issue, assume or suffer to existexist any Debt, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other than:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such DebtCredit Documents;
(ii) Debt under of any Loan Party or any Restricted Subsidiary of the Borrower owing to any other Loan DocumentsParty or any other Restricted Subsidiary of the Borrower; provided, that (a) any Debt of any Loan Party owing to any non-Loan Party shall be (x) subject to the Intercompany Subordination Agreement and (y) evidenced by one or more notes in form and substance reasonably satisfactory to the Administrative Agent and pledged as Collateral, to the extent required pursuant to the Collateral and Guarantee Requirements and (b) Debt of any Person owing to API incurred in reliance on this clause (ii), when aggregated with Debt of any API Excluded Subsidiary owing to API incurred in reliance on Section 7.02(f)(iii)(x), shall not exceed $10,000,000;
(iii) (x) Debt of any API Excluded Subsidiary owing to any Loan Party or any Restricted Subsidiary of the Borrower not to exceed in the aggregate at any time outstanding the Cumulative Credit (if positive) at such time; provided that, in the case of this clause (x), Debt of any API Excluded Subsidiary owing to API, when aggregated with Debt of any Person owing to API incurred in reliance on Section 7.02(f)(ii), shall not exceed $10,000,000 (y) Debt of any Loan Party or any Restricted Subsidiary of the Borrower owing to any API Excluded Subsidiary; provided, that in the case of this clause (y), any Debt of any Loan Party owing to any API Excluded Subsidiary shall be (i) subject to the Intercompany Subordination Agreement and (ii) evidenced by one or more notes in form and substance reasonably satisfactory to the Administrative Agent and pledged as Collateral, to the extent required pursuant to the Collateral and Guarantee Requirements; and (z) Debt of any API Excluded Subsidiary owing to any other API Excluded Subsidiary;
(iv) existing Debt outstanding on May 31, 2015 and listed on Schedule 7.02(f)(iv) and any unused commitments or amounts in respect of any such Debt so listed (collectively, the “Existing Debt”), and any Debt extending the maturity of, or replacing, refunding, renewing or refinancing, or (at the election of the Borrower) incurred in substitution of, in whole or in part, the Existing Debt; provided that the aggregate principal amount of all Existing Debt and all such Debt incurred in connection with any such extension, replacement, refunding, renewal, refinancing or substitution shall not exceed at any time outstanding the aggregate principal amount of the Existing Debt (including unused commitments and amounts in respect thereof) on the Effective Date (it being understood that any Debt incurred in substitution of any Existing Debt need not be incurred concurrently with, but shall be conditioned upon, the repayment and termination of such Existing Debt and may be incurred by a different obligor than the original Existing Debt if such obligor is not a Loan Party);
(v) Guarantees (x) by API of Debt of Foreign Subsidiaries that are Restricted Subsidiaries and (y) by any Restricted Subsidiary of API of Debt of API or any other Restricted Subsidiary of API permitted pursuant to this Section 7.02(f); provided that Guarantees by any Loan Party or any Restricted Subsidiary of the Borrower of Debt of any API Excluded Subsidiary shall not exceed in the aggregate at any time outstanding the Cumulative Credit (if positive) at such time; provided, however, that API shall be permitted to provide limited recourse guarantees of Debt of other Loan Parties permitted under Section 7.02(f)(xviii);
(vi) Cash Management Obligations and Debt in respect of Hedge Agreements incurred cash pooling arrangements, netting services, automatic clearinghouse arrangements, overdraft protections, employee credit card programs and other cash management and similar arrangements in the ordinary course of business (and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either caseGuarantees thereof); provided that the aggregate principal amount of all such Hedge Agreements are bona fide hedging activities Debt owing by API Excluded Subsidiaries shall not exceed in the aggregate at any time outstanding $30,000,000 and are not entered into for speculative purposes(y) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, so long as such Debt is extinguished within 10 Business Days of incurrence;
(iv) (Avii) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding;
(vi) endorsement of negotiable instruments for deposit or collection representing deferred compensation or similar transactions obligations to employees of incurred in the ordinary course of business;
(viiviii) Debt consisting in respect of guaranty Obligations (i) performance bonds, surety bonds, appeal bonds or customs bonds required in the ordinary course of business or in connection with the enforcement of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect rights or claims of any bankers’ acceptance, letter Subsidiary or in connection with judgments that do not result in an Event of Default and (ii) letters of credit, bank guarantees, bankers’ acceptances, warehouse receipt receipts or similar facilities entered into instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Debt with respect to reimbursement-type obligations regarding workers compensation claims;
(ix) Debt evidenced by the IP Intercompany Note;
Appears in 2 contracts
Samples: Credit Agreement (Avon Products Inc), Revolving Credit Agreement (Avon Products Inc)
Debt. Create, incur, assume guarantee or suffer to existexist any Debt, or permit any of its Subsidiaries except (other than with respect to createParent in subsections (b), incur, assume or suffer to exist, any Debt other than:(c) and (e)- (m) below):
(ia) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersDocuments;
(vb) Debt secured by Liens permitted by Section 5.02(a)(iv10.2.2(d) (Liens); provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed $175,000,000 at any time thereafter;
(c) unsecured Debt of any Loan Party (other than Parent) to any other Loan Party (other than Parent) or to any other Wholly-Owned Subsidiary other than a Loan Party; provided, that, in each case, such Debt shall be evidenced by a demand note in form and Capitalized Leases arising substance reasonably satisfactory to Agent and pledged and delivered to Agent pursuant to the Security Documents as additional collateral security for the Obligations, and, if owing by a Loan Party (other than to another Loan Party) the obligations under such demand note shall be subordinated to the Obligations of Borrowers and the other Loan Parties hereunder and under the other Loan Documents in a manner and on terms reasonably satisfactory to Agent;
(d) (i) solely in the case of Parent and only for so long as the Subordination Agreement remains in effect, the Sponsor Debt in a principal amount at any time outstanding not to exceed $15,000,000, less any principal payments made thereon after the Closing Date and (ii) so long as, at the time of incurrence thereof, no Default or Event of Default then exists or would result therefrom, any other unsecured Subordinated Debt in an amount at any time outstanding not to exceed $10,000,000, in aggregate and, in the case of this clause (ii), any extension, renewal or refinancing thereof so long as each of the applicable Refinancing Conditions are satisfied;
(e) Obligations under Hedging Agreements approved by Agent and incurred in favor of a Lender or an aggregate principal amount equal Affiliate thereof for bona fide hedging purposes and not for speculation;
(f) Debt existing on December 31, 2010 (less payments made from such date through and including the Closing Date and excluding Debt to be Repaid) described on Schedule 10.2.1(f) (Existing Debt) and any extension, renewal or refinancing thereof so long as each of the applicable Refinancing Conditions are satisfied;
(g) the Debt to be Repaid existing on the Closing Date and set forth on Schedule 10.2.1(g) (Debt to be Repaid) (so long as such Debt is repaid on the Closing Date);
(h) unsecured Contingent Obligations arising with respect to customary indemnification obligations in favor of sellers in connection with Permitted Acquisitions and purchasers in connection with dispositions permitted under Section 10.2.4 (Mergers, Consolidations, Sales and Other Transactions Outside the Ordinary Course of Business);
(i) up to $2,500,000 5,000,000 at any time outstandingoutstanding of secured Acquired Debt of the type permitted pursuant to clause (b) of this Section 10.2.1 assumed in Permitted Acquisitions, and any extension, renewal or refinancing thereof so long as each of the applicable Refinancing Conditions are satisfied;
(vij) endorsement Contingent Obligations constituting (and all cases subject to the restrictions and limitations with respect to, but without duplication of negotiable instruments for deposit or collection or similar transactions liabilities in the ordinary course terms of business;
(viicontingent obligations guaranteeing previously included primary obligations for) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;otherwise permitted under this Section 10.2.1
Appears in 2 contracts
Samples: Loan, Security and Guaranty Agreement (Transport America, Inc.), Loan, Security and Guaranty Agreement (Transport America, Inc.)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course case of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operationsBMCA, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor a wholly owned Subsidiary by any Loan Party and (C) of BMCA which is a Guarantor, which Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form constitute Pledged Debt and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions evidenced by promissory notes in form and substance satisfactory to the Administrative Agent to be contained and such promissory notes shall, in the respective intercompany note, subordinating the obligations case of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan Debt owed to a Loan Party Party, be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Agreement Agent pursuant to the terms of the Security Agreement;
(ii) in the case of any Subsidiary of BMCA, Debt owed to BMCA or to a wholly owned Subsidiary of BMCA, provided that, in each case, such Debt (w) shall be permitted under Section 5.02(f), (x) shall, in the case of Debt owed to a Loan Party, constitute Pledged Debt and (y) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent and such promissory notes shall, in the case of Debt owed to a Loan Party, be pledged by that Loan Party as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Documents Agreement Agent pursuant to the terms of the Security Agreement; and
(iii) in the case of BMCA and will its Subsidiaries,
(A) Debt under this Agreement, the Revolving Credit Facility, the Existing Indentures, the Senior Notes Indenture, the Bridge Loan Facility and the Elk Letters of Credit,
(B) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be subject in pro forma compliance with the provisions of Section 5.04 (such compliance to a perfected Lien granted in favor be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lenders pursuant to as though such Debt had been incurred as of the Orders;
first day of the fiscal period covered thereby), (vI) Debt secured by Liens permitted by Section 5.02(a)(iv), (II) and Capitalized Leases arising after permitted by Section 5.02(a)(v), and (III) Debt in respect of sale-leaseback transactions permitted by Section 5.02(a)(vii), provided, however, that (i) such Debt incurred pursuant to this Section 5.02(b)(iii)(B) shall not have scheduled amortization payments prior to the seventh anniversary of the Closing Date not to exceed in an aggregate principal amount equal in any Fiscal Year (together with the aggregate scheduled amortization payments in any Fiscal Year prior to the seventh anniversary of the Closing Date of any Debt permitted pursuant to clauses (C), (E) and (J) below) greater than the Amortization Basket, and (ii) Debt incurred pursuant to this Section 5.02(b)(iii)(B) shall not exceed $2,500,000 at any time outstanding;200,000,000 in the aggregate during the term of this Agreement,
(viC) endorsement So long as (1) no Default has occurred and is continuing (both at the time of negotiable instruments such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be in pro forma compliance with the provisions of Section 5.04 (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lenders as though such Debt had been incurred as of the first day of the fiscal period covered thereby), Debt extending the maturity of, or refunding or refinancing, in whole or in part (without any increase in the principal amount thereof or any change in any direct or contingent obligor thereof), any Debt under the 2014 Notes Indenture, the Bridge Loan Facility, the Revolving Credit Facility or the Senior Notes, provided, however, that (x) the terms and conditions of such extending, refunding or refinancing Debt are market terms and conditions at the time of such extension, refunding or refinancing and (y) any security arrangements in respect of such extended, refunded or refinanced Debt shall be no more onerous to the Lenders than those set forth in the security documentation in effect at such time; and provided, further that there are no remaining scheduled amortization payments in respect of such extending, refunding or refinancing Debt prior to December 31, 2014 that is more onerous than the remaining scheduled amortization prior to December 31, 2014 applicable to the Debt being refinanced, provided, further, that any Net Cash Proceeds received by BMCA in connection with any refinancing of such Debt and not applied for deposit such refinancing shall be applied as provided in Section 2.05,
(D) The Surviving Debt and, on or collection after the Closing Date, the Debt listed on Schedule 3.02 hereto,
(E) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be in pro forma compliance with the provisions of Section 5.04 (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lenders as though such Debt had been incurred as of the first day of the fiscal period covered thereby), Debt extending the maturity of, or refunding or refinancing, in whole or in part (without any increase in the principal amount thereof or any change in any direct or contingent obligor thereof), any Debt described in clause (B) above and any other Surviving Debt, provided that (x) there are no remaining scheduled amortization payments in respect of such extending, refunding or refinancing Debt prior to December 31, 2014 that is more onerous than the remaining scheduled amortization prior to December 31, 2014 if any, applicable to the Debt being extended, refunded or refinanced and (y) any security arrangements in respect of such extended, refunded or refinanced Debt shall be no more onerous to the Lenders than those set forth in the security documentation in effect at such time; and (z) there are no scheduled amortization payments of principal in respect of such Debt prior to the seventh anniversary of the Closing Date in an aggregate principal amount in any Fiscal Year (together with the aggregated scheduled amortization payments in any Fiscal Year prior to the seventh anniversary of the Closing Date of any Debt permitted pursuant to clauses (B) and (C) above and clause (J) below) greater than the Amortization Basket; provided further that the principal amount of such Debt being extended, refunded or refinanced shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing and the direct and contingent obligors therefor shall not be changed as a result of or in connection with such extension, refunding or refinancing,
(F) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be in pro forma compliance, with the provisions of Section 5.04 (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lenders as though such Debt had been incurred as of the first day of the fiscal period covered thereby), unsecured, subordinated Debt with market terms owing to G-I Holdings or BMCA Holdings,
(G) Debt consisting of surety bonds or similar transactions instruments in favor of government agencies in connection with workers’ compensation liabilities, taxes, assessments or other obligations, provided, however, that such Debt is incurred in the ordinary course of business;,
(viiH) Debt of any entity acquired by BMCA or its Subsidiaries in accordance with the terms hereof so long as (i) such Debt was incurred prior to such acquisition (and not in connection with or contemplation of, such acquisition), (ii) both before and after giving effect to such acquisition, no Default or Event of Default shall exist, and (iii) such Debt has no additional direct, indirect or contingent obligor,
(I) Debt of any Loan Party consisting of guaranty Contingent Obligations in respect of Debt of other Loan Parties, so long as such other Loan Parties are permitted to incur such Debt hereunder,
(J) So long as (1) no Default has occurred and is continuing (both at the ordinary course time of business such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be in pro forma compliance, with the provisions of Section 5.04 (such compliance to be determined on the basis of the obligations of suppliers, customers, franchisees required financial information most recently delivered to the Administrative Agent and licensees the Lenders as though such Debt had been incurred as of the Borrower and its Subsidiaries;
first day of the fiscal period covered thereby), Debt ranked junior (viii) Debt in respect of any bankers’ acceptanceLiens securing such Debt, letter which Liens shall be ranked junior to the Liens securing this Term Loan Facility), provided, however, that there are no scheduled amortization payments of creditprincipal in respect of such Debt prior to the seventh anniversary of the Closing Date in an aggregate principal amount in any Fiscal Year (together with the aggregated scheduled amortization payments in any Fiscal Year prior to the seventh anniversary of the Closing Date, warehouse receipt or similar facilities entered into in of any Debt permitted pursuant to clauses (B), (C) and (E) above) greater than the ordinary course Amortization Basket, and
(K) At any time prior to the thirtieth Business Day after the date of business;the Merger, the Elk Private Notes.
Appears in 2 contracts
Samples: Term Loan Agreement (BMCA Acquisition Sub Inc.), Term Loan Agreement (Building Materials Manufacturing Corp)
Debt. CreateNo Loan Party will, incur, assume or suffer to exist, or nor will it permit any of its Subsidiaries to to, create, incur, assume or suffer to exist, exist any Debt other thanexcept:
(ia) Prepetition Debt pursuant to this Agreement;
(b) Investments permitted under Section 7.10 that would constitute Debt;
(c) Debt in an aggregate outstanding on principal amount not to exceed $5,000,000 incurred in connection with Capital Leases existing as of the Petition Closing Date and set forth in on Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt7.09;
(iid) Debt under in the Loan Documentsform of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not be past due;
(iiie) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(ivi) (A) Debt owed by any a Loan Party owing to any other another Loan Party, (Bii) Debt owed to any non-Debtor Subsidiary by any a Loan Party and (C) owing to a Subsidiary that is not a Loan Party, so long as such Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory an intercompany note shall be in form and substance satisfactory subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences, and (yiii) each intercompany loan owed to the extent permitted by Section 7.10, any Subsidiary that is not a Loan Party owing to a non-Debtor Loan Party;
(f) all obligations of such Person arising under letters of credit (including standby and commercial); provided, that, prior to the Guarantee Release Date, such Debt may only be incurred by the Loan Parties;
(g) Debt of any Person that becomes a Subsidiary after the Closing Date, incurred prior to the time such Person becomes a Subsidiary, that is not created in contemplation of or in connection with such Person becoming a Subsidiary and that is not assumed or Guaranteed by any other Subsidiary; and Debt secured by a Lien on property acquired by a Subsidiary, incurred prior to the acquisition thereof by such Subsidiary, that is not created in contemplation of or in connection with such acquisition and that is not assumed or Guaranteed by any other Subsidiary; and Debt refinancing (but not increasing the principal amount thereof, except by an amount equal to amounts paid for any accrued interest, breakage, premium, fees and expenses in connection with such refinancing) the Debt described in this clause (g); provided that (i) prior to the Guarantee Release Date, (A) the Parent shall be subject in compliance, on a pro forma basis, with the Consolidated Leverage Ratio after giving effect to subordination provisions in form the incurrence of such Debt and substance satisfactory to any Debt then being incurred under Section 7.09(j) and (B) such Subsidiary becomes a Loan Party within thirty (30) days (or such longer period as the Administrative Agent to be contained may agree in writing) after the respective intercompany note, subordinating the obligations acquisition of such Loan Party thereunder to the Obligations of Subsidiary or such Loan Party under this Agreement and the other Loan Documents property and (zii) each intercompany loan owed on and after the Guarantee Release Date, such Debt, when aggregated with all Debt then outstanding or then being incurred under Section 7.09(k), does not exceed 15% of Consolidated Net Tangible Assets after giving effect to a Loan Party shall be pledged by that Loan Party such Debt (measured as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and date of incurrence using the Lenders financial statements most recently delivered pursuant to the OrdersSection 6.01(a) or (b));
(vh) Debt secured by Liens permitted by Section 5.02(a)(iv) incurred in connection with Capital Leases and Capitalized Leases arising after the Closing Date purchase money Debt in an aggregate outstanding principal amount not to exceed an $25,000,000 at any time; provided, that, prior to the Guarantee Release Date, such Debt may only be incurred by the Loan Parties;
(i) all Guarantees otherwise permitted by this Agreement, including Guarantees of Debt permitted to be incurred under this Section; provided, that, prior to the Guarantee Release Date, such Guarantees may only be incurred by the Loan Parties;
(j) other Debt incurred by the Loan Parties; provided that after giving effect to the incurrence of such Debt and the aggregate principal amount equal to $2,500,000 at any time outstanding;of Debt then being incurred under Section 7.09(g)(i), the Parent shall be in compliance, on a pro forma basis, with the Consolidated Leverage Ratio; and
(vik) endorsement on and after the Guarantee Release Date, other Debt incurred by Subsidiaries that are not Loan Parties; provided that the aggregate principal amount of negotiable instruments for deposit such Debt, when aggregated with all Debt then outstanding or collection or similar transactions in then being incurred under Section 7.09(g), does not exceed 15% of Consolidated Net Tangible Assets after giving effect to the ordinary course incurrence of business;
such Debt (vii) Debt consisting of guaranty Obligations in the ordinary course of business measured as of the obligations date of suppliers, customers, franchisees and licensees of incurrence using the Borrower and its Subsidiaries;
financial statements most recently delivered pursuant to Section 6.01(a) or (viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;b)).
Appears in 2 contracts
Samples: Credit Agreement (Noble Midstream Partners LP), Credit Agreement (Noble Midstream Partners LP)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iiiii) Debt in respect of Hedge Agreements incurred in the ordinary course case of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to or any other Subsidiary of a Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi)Party, provided that, in each case, such Debt (xy) shall be on terms acceptable to the extent that the Administrative Agent requires that an intercompany loan is and (z) shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory unless payable to the Administrative Agent to Borrower) by their terms be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder subordinated to the Obligations of such the Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security Parties under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersLoan Documents;
(viii) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv5.02(a)(iii) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 5,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $5,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) the Existing Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Existing Debt,
(D) Debt in respect of Hedge Agreements entered into by the Borrower and designed to hedge against fluctuations in interest rates or foreign exchange rates incurred as required by this Agreement or incurred in the ordinary course of business and consistent with prudent business practices,
(E) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement, and
(F) with respect to the Borrower or any Subsidiary that does not own a Borrowing Base Asset only, Recourse Debt not secured by any Lien in an amount not to exceed 5% of Total Asset Value at any one time outstanding;
(iv) Recourse Debt of the Borrower and/or Property-Level Subsidiaries of the Borrower (exclusive of any Subsidiary that owns a Borrowing Base Asset) and the JV Pro Rata Share of Recourse Debt of any Joint Venture, in each case as such Recourse Debt may be secured by Liens permitted by Section 5.02(a)(vi), in respect of which the Borrower or the Parent Guarantor has guaranteed the obligations of the Borrower and/or such Property-Level Subsidiary or Joint Venture under such Recourse Debt and the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement;
(v) in the case of the Parent Guarantor and the Borrower, Debt under Customary Carve-Out Agreements;
(vi) endorsement with respect to the Borrower or any Subsidiary that does not own a Borrowing Base Asset only, Debt under a senior unsecured term loan, the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement;
(vii) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;; and
(viii) any other Debt not to exceed $5,000,000 in the aggregate at any time outstanding in respect of all Loan Parties and which is not secured by any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;Lien on any Borrowing Base Asset.
Appears in 2 contracts
Samples: Credit Agreement (Campus Crest Communities, Inc.), Credit Agreement (Campus Crest Communities, Inc.)
Debt. Create, incur, assume or suffer to exist, or permit any of its Restricted Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on in the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, case of the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;Borrower,
(ii) Debt under the Loan Documents;
(iiiA) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection consistent with prudent business practice with the Borrower’s or aggregate Agreement Value thereof not to exceed $2,000,000 at any of its Subsidiaries’ operationstime outstanding, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;and
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor a Restricted Subsidiary by any Loan Party and (C) of the Borrower, which Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) shall, in the case of Debt owed to the extent that a Loan Party, constitute Pledged Debt, (y) shall be on terms acceptable to the Administrative Agent requires that an intercompany loan is and (z) if evidenced by a promissory notenotes, such promissory note notes shall be in form and substance satisfactory to the Administrative AgentAgent and shall, in the case of Debt owed to a Loan Party, be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreement;
(ii) in the case of any Restricted Subsidiary of the Borrower, Debt owed to the Borrower or to a Restricted Subsidiary of the Borrower, provided, that, in each case, such Debt (x) shall, in the case of Debt owed to a Loan Party, constitute Pledged Debt, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject on terms acceptable to subordination provisions the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent to be contained and such promissory notes shall, in the respective intercompany note, subordinating the obligations case of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan Debt owed to a Loan Party shall Party, be pledged by that Loan Party as security for the Obligations of the holder thereof under the Collateral Loan Documents to which such holder is a party and will be subject delivered to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;terms of the Security Agreement; and
(viii) in the case of the Borrower and its Restricted Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section 5.02(a)(iv),
(C) Capitalized Leases,
(D) (x) the Existing Debt, and (y) any Debt extending the maturity of, or refunding or refinancing, in whole or in part, any Existing Debt, provided, that the terms of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are otherwise permitted by the Loan Documents, provided further that the principal amount of such Existing Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing, provided still further that the terms relating to principal amount, amortization, maturity, collateral (if any) and Capitalized Leases arising subordination (if any), and other material terms taken as a whole, of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lender Parties than the terms of any agreement or instrument governing the Existing Debt being extended, refunded or refinanced and the interest rate applicable to any such extending, refunding or refinancing Debt does not exceed the then applicable market interest rate,
(E) Debt of any Person that becomes a Restricted Subsidiary of the Borrower after the Closing Date date hereof in accordance with the terms of Section 5.02(f) which Debt is existing at the time such Person becomes a Restricted Subsidiary of the Borrower (other than Debt incurred solely in contemplation of such Person becoming a Restricted Subsidiary of the Borrower),
(F) Contingent Obligations (1) in respect of obligations of the Loan Parties permitted hereunder, (2) described on Schedule 5.02(b)(iii)(F), (3) arising in connection with indemnity programs for employees and or agents, provided, that such Contingent Obligations do not to exceed an in the aggregate principal amount equal to $2,500,000 at any time outstanding;
$5,000,000, and (vi4) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of loans and advances made to employees and/or agents pursuant to the Commission Advance Program or on account of errors and omissions insurance coverage programs, provided, that, after giving effect thereto, the aggregate amount of all Contingent Obligations permitted by subsections (iii)(F)(2), (3) and (4) above plus the aggregate amount of loans and advances made pursuant to subsections (ii) and (xi) of Section 5.02(f) shall not exceed $6,000,000,
(G) Debt under any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities insurance premium financing arrangement entered into in the ordinary course of business;, and
(H) other Debt not otherwise prohibited by the terms of the proviso set forth at the end of this Section 5.02(b) and subordinated to Debt incurred hereunder on terms and conditions reasonably satisfactory to the Administrative Agent (except to the extent otherwise permitted by Section 8.06); provided, however, that notwithstanding the provisions of subsections (iii)(A) through (iii)(H) above, (x) the aggregate amount of all Debt described in subsections (iii)(B), (iii)(C), (iii)(D)(y), (iii)(E) and (iii)(H) above that is secured by Liens shall not exceed $2,000,000 at any time outstanding and (y) the aggregate amount of all Debt described in subsections (iii)(B), (iii)(C), (iii)(D)(y), (iii)(E) and (iii)(H) above shall not exceed $6,000,000 at any time outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Grubb & Ellis Co), Credit Agreement (Grubb & Ellis Co)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course case of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operationsBMCA, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor a wholly owned Subsidiary by any Loan Party and (C) of BMCA which is a Guarantor, which Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form constitute Pledged Debt and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions evidenced by promissory notes in form and substance satisfactory to the Administrative Agent to be contained and such promissory notes shall, in the respective intercompany note, subordinating the obligations case of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan Debt owed to a Loan Party Party, be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement;
(ii) in the case of any Subsidiary of BMCA, Debt owed to BMCA or to a wholly owned Subsidiary of BMCA, provided that, in each case, such Debt (w) shall be permitted under Section 5.02(f), (x) shall, in the case of Debt owed to a Loan Party, constitute Pledged Debt and (y) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent and such promissory notes shall, in the case of Debt owed to a Loan Party, be pledged by that Loan Party as security for the Obligations of the holder thereof under the Collateral Loan Documents to which such holder is a party; and
(iii) in the case of BMCA and will its Subsidiaries,
(A) Debt under this Agreement, the Revolving Credit Facility, the Existing Indentures, the Senior Notes Indenture, the Term Loan Facility and the Elk Letters of Credit,
(B) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be subject in pro forma compliance with the provisions of Section 5.04 (such compliance to a perfected Lien granted in favor be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lenders pursuant to as though such Debt had been incurred as of the Orders;
first day of the fiscal period covered thereby), (vI) Debt secured by Liens permitted by Section 5.02(a)(iv), (II) and Capitalized Leases arising after permitted by Section 5.02(a)(v), and (III) Debt in respect of sale-leaseback transactions permitted by Section 5.02(a)(vii), provided, however, that (i) such Debt incurred pursuant to this Section 5.02(b)(iii)(B) shall not have scheduled amortization payments prior to the eighth anniversary of the Closing Date not to exceed in an aggregate principal amount equal in any Fiscal Year (together with the aggregate scheduled amortization payments in any Fiscal Year prior to the eighth anniversary of the Closing Date of any Debt permitted pursuant to clauses (C), (E) and (J) below) greater than the Amortization Basket, and (ii) Debt incurred pursuant to this Section 5.02(b)(iii)(B) shall not exceed $2,500,000 at any time outstanding;200,000,000 in the aggregate during the term of this Agreement,
(viC) endorsement So long as (1) no Default has occurred and is continuing (both at the time of negotiable instruments such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be in pro forma compliance with the provisions of Section 5.04 (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lenders as though such Debt had been incurred as of the first day of the fiscal period covered thereby), Debt extending the maturity of, or refunding or refinancing, in whole or in part (without any increase in the principal amount thereof or any change in any direct or contingent obligor thereof), any Debt under the 2014 Notes Indenture, the Term Loan Facility, the Revolving Credit Facility or the Senior Notes Indenture, provided, however, that (x) the terms and conditions of such extending, refunding or refinancing Debt are market terms and conditions at the time of such extension, refunding or refinancing and (y) any security arrangements in respect of such extended, refunded or refinanced Debt shall be no more onerous to the Lenders than those set forth in the security documentation in effect at such time; and provided, further, that there are no remaining scheduled amortization payments in respect of such extending, refunding or refinancing Debt prior to December 31, 2015 that is more onerous than the remaining scheduled amortization prior to December 31, 2015 applicable to the Debt being refinanced, provided, further, that any Net Cash Proceeds received by BMCA in connection with any refinancing of such Debt and not applied for deposit such refinancing shall be applied as provided in Section 2.05,
(D) The Surviving Debt and, on or collection after the Closing Date, the Debt listed on Schedule 5.02(b)(iii)(D) hereto,
(E) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be in pro forma compliance with the provisions of Section 5.04 (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lenders as though such Debt had been incurred as of the first day of the fiscal period covered thereby), Debt extending the maturity of, or refunding or refinancing, in whole or in part (without any increase in the principal amount thereof or any change in any direct or contingent obligor thereof), any Debt described in clause (B) above and any other Surviving Debt, provided that (x) there are no remaining scheduled amortization payments in respect of such extending, refunding or refinancing Debt prior to December 31, 2015 that is more onerous than the remaining scheduled amortization prior to December 31, 2015 if any, applicable to the Debt being extended, refunded or refinanced, (y) any security arrangements in respect of such extended, refunded or refinanced Debt shall be no more onerous to the Lenders than those set forth in the security documentation in effect at such time; and (z) there are no scheduled amortization payments of principal in respect of such Debt prior to the eighth anniversary of the Closing Date in an aggregate principal amount in any Fiscal Year (together with the aggregated scheduled amortization payments in any Fiscal Year prior to the eighth anniversary of the Closing Date of any Debt permitted pursuant to clauses (B) and (C) above and clause (J) below) greater than the Amortization Basket; provided, further, that the principal amount of such Debt being extended, refunded or refinanced shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing and the direct and contingent obligors therefor shall not be changed as a result of or in connection with such extension, refunding or refinancing,
(F) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be in pro forma compliance, with the provisions of Section 5.04 (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lenders as though such Debt had been incurred as of the first day of the fiscal period covered thereby), unsecured, subordinated Debt with market terms owing to G-I Holdings or BMCA Holdings,
(G) Debt consisting of surety bonds or similar transactions instruments in favor of government agencies in connection with workers’ compensation liabilities, taxes, assessments or other obligations, provided, however, that such Debt is incurred in the ordinary course of business;,
(viiH) Debt of any entity acquired by BMCA or its Subsidiaries in accordance with the terms hereof so long as (i) such Debt was incurred prior to such acquisition (and not in connection with or contemplation of, such acquisition), (ii) both before and after giving effect to such acquisition, no Default or Event of Default shall exist, and (iii) such Debt has no additional direct, indirect or contingent obligor,
(I) Debt of any Loan Party consisting of guaranty Contingent Obligations in respect of Debt of other Loan Parties, so long as such other Loan Parties are permitted to incur such Debt hereunder,
(J) So long as (1) no Default has occurred and is continuing (both at the ordinary course time of business such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, BMCA shall be in pro forma compliance, with the provisions of Section 5.04 (such compliance to be determined on the basis of the obligations of suppliers, customers, franchisees required financial information most recently delivered to the Administrative Agent and licensees the Lenders as though such Debt had been incurred as of the Borrower and its Subsidiaries;
first day of the fiscal period covered thereby), Debt ranked junior (viii) Debt in respect of any bankers’ acceptanceLiens securing such Debt, letter which Liens shall be ranked junior to the Liens securing the Bridge Loan Facility), provided, however, that there are no scheduled amortization payments of creditprincipal in respect of such Debt prior to December 31, warehouse receipt or similar facilities entered into 2015 in an aggregate principal amount in any Fiscal Year (together with the ordinary course aggregated scheduled amortization payments in any Fiscal Year prior to the eighth anniversary of business;the Closing Date of any Debt permitted pursuant to clauses (B), (C) and (E) above) greater than the Amortization Basket, and
(K) At any time prior to the thirtieth Business Day after the date of the Merger, the Elk Private Notes.
Appears in 2 contracts
Samples: Bridge Loan Agreement (BMCA Acquisition Sub Inc.), Bridge Loan Agreement (Building Materials Manufacturing Corp)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition in the case of the Borrower,
(A) Debt owed to a Wholly Owned Subsidiary of the Borrower; provided that, any such Debt owed by the Borrower to any Wholly Owned Subsidiary of the Borrower that is not a Loan Party, shall be subordinated in right of payment to the Obligations of the Borrower under the Loan Documents and shall be evidenced by, and subject to the provisions of, an intercompany note that shall be pledged to the Collateral Agent in accordance with the terms of the Security Agreement,
(B) other unsecured Debt incurred in the ordinary course of business aggregating not more than $50,000,000 at any time outstanding other than Guaranties or other contingent obligations of the Borrower with respect to any Debt or other obligation of any Subsidiary; provided that (I) the Borrower shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the Petition financial statements most recently delivered to the Lenders pursuant to Section 5.03 and as though such Debt had been incurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the chief financial officer (or person performing similar functions) of the Borrower delivered to the Administrative Agent demonstrating such compliance and (II) such unsecured Debt ranks junior to or pari passu with the Facilities,
(C) other unsecured Debt incurred in the ordinary course of business (including, for the avoidance of doubt, any long-term Debt incurred in connection with a note offering) other than Guaranties or other contingent obligations of the Borrower with respect to any Debt or other obligation of any Subsidiary; provided that (I) the Borrower shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lenders pursuant to Section 5.03 and as though such Debt had been incurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the chief financial officer (or person performing similar functions) of the Borrower delivered to the Administrative Agent demonstrating such compliance, (II) such unsecured Debt matures, and does not begin to amortize until, more than six months after the latest Termination Date for all Facilities and (III) the covenants and other material terms of such unsecured Debt are no more restrictive than those set forth in Schedule 4.01(rthe Loan Documents, and
(i) the Senior Notes and Permitted Junior Refinancing Debt in respect thereof in an aggregate principal amount not to exceed $145,000,000 and (includingii) junior secured Debt that is issued, without limitationincurred or otherwise obtained to refinance, in whole or in part, the Indebtedness under Revolving Credit Facility in an aggregate principal amount not to exceed $300,000,000 minus the Prepetition Loan Documents and aggregate principal amount of Permitted Junior Refinancing Debt incurred pursuant to clause (i); provided that, in the Senior Subordinated Notescase of this clause (ii), (a) without giving effect to any extensions, renewals and replacements upon the incurrence of any such Debt, the Borrower shall promptly provide notice of the incurrence thereof to the Administrative Agent and the Revolving Credit Commitments shall be automatically and permanently reduced (without further action on the part of any Person) on a dollar for dollar basis by the aggregate principal amount of such Debt, (b) such Debt shall (i) be secured by Liens on (x) the Collateral that are junior to the Liens on the Collateral securing the Obligations and/or (y) property of Persons other than the Borrower or its Subsidiaries, (ii) not secured by any property or assets of any Loan Party other than the Collateral and (iii) not guaranteed by Subsidiaries of the Borrower other than the Subsidiary Guarantors, (c) such Debt does not mature or have scheduled amortization or scheduled payments of principal and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligation (other than customary offers to repurchase upon a change of control, asset sale or casualty event and customary acceleration rights after an event of default), prior to the date that is the later of (i) September 23, 2019, and (ii) 90 days after the latest Termination Date applicable to the Facilities at the time such Debt is incurred, (d) the security agreements (if such debt is secured by the Collateral) and guarantees (if such Debt is guaranteed by one or more Subsidiaries of the Borrower) of the Borrower and its Subsidiaries relating to such Debt have terms not more favorable to the respective creditors than the terms of the Collateral Documents and the Subsidiary Guaranty (with such differences as are appropriate to reflect the nature of such junior lien Debt and any other differences reasonably satisfactory to the Administrative Agent or the Collateral Agent) and (e) if such Debt is secured by the Collateral, a Representative acting on behalf of the holders of such Debt shall have become party to, or otherwise be subject to the provisions of, the Second Lien Intercreditor Agreement;
(ii) in the case of any Subsidiary of the Borrower, (A) Debt owed to the Borrower or to a Wholly Owned Subsidiary of the Borrower; provided that (I) any such Debt owed to any Wholly Owned Subsidiary of the Borrower that is not a Loan Party by any Subsidiary of the Borrower that is a Loan Party, shall be subordinated in right of payment to the Obligations of such Loan Party under the Loan Documents and shall be evidenced by, and subject to the provisions of, an intercompany note that shall be pledged to the Collateral Agent in accordance with the terms of the Security Agreement and (II) any such Debt owed to the Borrower or to a Wholly Owned Subsidiary of the Borrower that is a Loan Party in excess of $250,000 by any Subsidiary that is not a Loan Party shall be evidenced by a promissory note that shall be pledged to the Collateral Agent in accordance with the terms of the Security Agreement, and (B) Debt in the form of a Guaranty of Debt otherwise permitted under this Section 5.02(b); and
(iii) in the case of the Borrower and its Subsidiaries,
(A) Debt under the Loan Documents;,
(iiiB) the Surviving Debt set forth on Schedule 4.01(s) hereto (other than the Senior Notes),
(C) non-recourse Debt of the Borrower and Subsidiaries incurred solely to finance capital expenditures for the development of Greenfield Projects,
(D) non-recourse Debt secured by Liens permitted by Section 5.02(a)(iv),
(E) Debt in respect of Hedge Agreements (i) Swaps incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection consistent with prudent business practice with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date aggregate value thereof not to exceed an aggregate principal amount equal $10,000,000 at any time outstanding and (ii) interest rate Swaps incurred in the ordinary course of business and consistent with prudent business practice of up to $2,500,000 250,000,000 of notional indebtedness at any time outstanding;,
(viF) endorsement any Debt extending the maturity of, or refunding or refinancing, in whole or in part, any Surviving Debt or other Debt permitted under this Section 5.02(b) (other than the Senior Notes); provided that the principal amount of negotiable instruments for deposit such Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or collection refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or similar transactions in connection with such extension, refunding or refinancing; provided further that the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are consistent with prudent business practice and incurred in the ordinary course of business;; provided further that the repayment in whole or in part of the Advances pursuant to Section 2.04 or Section 2.06 with the proceeds of Debt incurred pursuant to Section 5.02(b)(i)(B), Section 5.02(b)(i)(C) or Section 5.02(b)(iii)(G) shall not constitute an extension, refunding or refinancing under this subclause (F),
(viiG) Capital Lease Obligations aggregating not more than $100,000,000 and other unsecured Debt consisting of guaranty Obligations incurred in the ordinary course of business business; provided, in each case, that the Borrower shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lenders pursuant to Section 5.03 and as though such Debt or Capital Lease Obligations had been incurred at the beginning of the obligations four-quarter period covered thereby, as evidenced by a certificate of suppliersthe chief financial officer (or person performing similar functions) of the Borrower delivered to the Administrative Agent demonstrating such compliance, customers, franchisees and licensees and
(H) Debt of the Borrower and its Subsidiaries;
(viii) Debt , if any, arising in respect connection with receivables securitization programs on terms and conditions customary for transactions of that type in an aggregate principal amount not to exceed $100,000,000 at any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;time outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Alliance Resource Partners Lp), Credit Agreement (Alliance Holdings GP, L.P.)
Debt. CreateGroup will not create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and Covered Facilities; provided that all New Facilities will be subject to the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements approval procedures specified in Section 2.4 of any such Debt;the Intercreditor Agreement,
(ii) Debt under the Loan Documents;Designated Capital Markets Transactions,
(iii) Debt secured by Liens permitted by Section 2.6(a)(v) not to exceed in the aggregate $5,000,000 at any time outstanding,
(iv) Capitalized Leases not to exceed in the aggregate $15,000,000 at any time outstanding,
(v) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection consistent with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;prudent business practice,
(iv) (Avi) Debt owed owing by any Loan U.S. Credit Party to (or Contingent Obligations made in respect of the obligations of any U.S. Credit Party by) any other Loan U.S. Credit Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note which Debt shall be in form constitute Pledged Debt and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary any promissory notes evidencing such Pledged Debt shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to pledged as security for the Obligations of such Loan Party the holder thereof under this Agreement and the other Loan Documents to which such holder is a party and (z) each intercompany loan owed delivered to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders Trustee pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after terms of the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding;
(vi) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;Security Agreement,
(vii) Debt consisting of guaranty owing by any Foreign Subsidiary to (or Contingent Obligations made in the ordinary course of business respect of the obligations of suppliersany Foreign Subsidiary by) any U.S. Credit Party, customersnot to exceed in the aggregate $10,000,000 at any time outstanding under this clause (vii), franchisees which Debt, in the case of any Foreign Credit Party, (x) shall constitute Pledged Debt and licensees (y) any promissory notes relating to such Debt (which shall be prepared in certificated form if determined in the reasonable judgment of the Borrower Debt Coordinators to be necessary or advisable under applicable law to vest in the Collateral Trustee a valid and its Subsidiariessubsisting Lien on such Debt) shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Trustee pursuant to the terms of the Collateral Documents;
(viii) Debt owing by any U.S. Credit Party or any Foreign Subsidiary to (or Contingent Obligations made in respect of the obligations of any bankers’ acceptanceU.S. Credit Party or any Foreign Subsidiary by) any Excluded Foreign Subsidiary;
(ix) Debt owing by any Foreign Credit Party to (or Contingent Obligations made in respect of the obligations of any Foreign Credit Party by) another Foreign Credit Party, letter provided that (A) no such Debt can be incurred after the occurrence and during the continuance of credita Default, warehouse receipt (B) such Debt is otherwise in compliance with Schedule III hereto, (C) such Debt shall constitute Pledged Debt and (D) any promissory notes relating to such Debt (which shall be prepared in certificated form if determined in the reasonable judgment of the Debt Coordinators to be necessary or similar facilities advisable under applicable law to vest in the Collateral Trustee a valid and subsisting Lien on such Debt) shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Trustee pursuant to the terms of the Collateral Documents;
(x) Debt owing by any Excluded Foreign Subsidiary to (or Contingent Obligations made in respect of the obligations of any Excluded Foreign Subsidiary by) any Foreign Credit Party, not to exceed in the aggregate $10,000,000 at any time outstanding under this clause (x) and (A) which Debt shall constitute Pledged Debt and (B) any promissory notes relating to such Debt (which shall be prepared in certificated form if determined in the reasonable judgment of the Debt Coordinators to be necessary or advisable under applicable law to vest in the Collateral Trustee a valid and subsisting Lien on such Debt) shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Trustee pursuant to the terms of the Collateral Documents;
(xi) Debt consisting of Contingent Obligations pursuant to which a U.S. Credit Party guarantees operating lease obligations of Foreign Subsidiaries, not to exceed in the aggregate $5,000,000 during any Fiscal Year;
(xii) Debt of any Person that becomes a Subsidiary of Group after the date hereof in accordance with the terms of Section 2.6(e)(x) which Debt is existing at the time such Person becomes a Subsidiary of Group (other than Debt incurred solely in contemplation of such Person becoming a Subsidiary of Group); provided that after giving effect to such Debt, the Leverage Ratio, calculated on a pro-forma basis (and using for this purpose "Total Bank Outstandings" rather than "Indebtedness for Borrowed Money" in such calculation) as if such Debt had been incurred immediately prior to the beginning of the most recent period of four consecutive Fiscal Quarters for which financial statements have been delivered hereunder, will not have increased;
(xiii) Debt in respect of the Securitization Facility;
(xiv) Debt existing on the date hereof and described on Schedule 2.6(b), and any Debt extending the maturity of, or refunding or refinancing, in whole or in part, such Debt (which, in the case of Debt consisting of guarantees of operating lease obligations, shall include guarantees of any replacement leases, provided that the Contingent Obligation under such guarantees may not increase as a result thereof), provided that the (A) terms of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are otherwise permitted by the ordinary course Loan Documents, (B) principal amount of business;such Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed as a result of or in connection with such extension, refunding or refinancing and (C) terms relating to principal amount, amortization, maturity, collateral (if any), subordination (if any), and other material terms taken as a whole, of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lender Parties than the terms of any agreement or instrument governing the Debt being extended, refunded or refinanced and the interest rate applicable to any such extending, refunding or refinancing Debt does not exceed the then applicable market interest rate; and
Appears in 2 contracts
Samples: Amendment, Modification, Restatement and General Provisions Agreement (Warnaco Group Inc /De/), Amendment, Modification, Restatement and General Provisions Agreement (Warnaco Group Inc /De/)
Debt. Create, incur, assume Create or suffer to exist, or permit any of its Subsidiaries to create, incur, assume create or suffer to exist, any Debt other thanthan the following, provided that any Debt permitted by any clause below shall be permitted under this Section 5.02(d), notwithstanding that such Debt would not be permitted by any other clause:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor the Company or to a Consolidated Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding of the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi)Company, provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, all such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan Debt owed by a Loan Party to a non-Debtor Subsidiary Person that is not a Loan Party shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder subordinated to the Obligations of such Loan Party under this Agreement and pursuant to an intercompany subordination agreement or other arrangements reasonably satisfactory to the other Loan Documents and (z) each intercompany loan Required Lenders; provided further that all such Debt that is owed to a Loan Party by a Person that is not a Loan Party (x) shall be permitted as an Investment under Section 5.02(i) and (y) shall be evidenced by an intercompany note, and pledged to the Agent as Collateral,
(ii) Debt existing on the Closing Date and described on Schedule 5.02(d) hereto, and any Permitted Refinancing thereof,
(iii) Debt secured by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor Liens of the Administrative Agent type described in and the Lenders pursuant to the Orders;extent permitted by Section 5.02(a)(iii) and (vi) in an aggregate amount not to exceed $25,000,000 at any time outstanding,
(iv) Debt of a Person existing at the time such Person is amalgamated, merged into or consolidated with the Company or any Subsidiary of the Company or becomes a Subsidiary of the Company; provided that such Debt was not created in contemplation of such amalgamation, merger, consolidation or acquisition,
(v) Debt secured by Liens permitted by Section 5.02(a)(ivarising under the Loan Documents,
(vi) and Capitalized Leases arising after Debt under the Closing Date Existing DIP Credit Agreement in connection with an asset based revolving facility (including any letters of credit or other obligations incurred thereunder) in an amount not to exceed an aggregate principal amount equal to $2,500,000 200,000,000 at any time outstanding;,
(vivii) Debt incurred by Kodak International Finance Limited, a company organized and existing under the laws of England, (x) in connection with short term working capital needs in an aggregate amount not to exceed $25,000,000 at any time outstanding and (y) consisting of Hedge Agreement Obligations entered into in the ordinary course of business to protect the Company and its Subsidiaries against fluctuations in commodities, interest or exchanges rates and permitted under Section 5.02(m),
(viii) Debt incurred by Subsidiaries organized under the laws of any jurisdiction outside of the United States in an aggregate amount not to exceed $30,000,000 at any time outstanding,
(ix) Debt of Subsidiaries that are not Loan Parties in respect of (a) treasury management services, clearing, corporate credit card and related services provided to any such Subsidiaries, (b) letters of credit issued for the benefit of any such Subsidiaries, (c) Hedge Agreements entered into by any such Subsidiaries and permitted under Section 5.02(m), and (d) bank guarantees with respect to such Subsidiaries, in an aggregate amount not to exceed $10,000,000 at any time outstanding,
(x) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;,
(viixi) Debt which exists or may exist under the Existing DIP Secured Agreements in existence from time to time, subject to the Maximum Obligations Amount,
(xii) Debt which exists or may exist under the Existing Secured Agreements in existence from time to time; provided that such Debt shall not be secured by any Lien other than a Lien permitted under Section 5.02(a)(x),
(xiii) unsecured Debt consisting of guaranty Obligations guarantees of amounts owing by customers of the Company under equipment and vendor financing programs in an aggregate amount not to exceed $25,000,000 at any time outstanding,
(xiv) unsecured Debt in connection with surety bonds, guarantees and letters of credit for customs and excise taxes, value added taxes, insurance and environmental liabilities, rental expenses, tenders and bids and other obligations of the like incurred in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;in an aggregate principal amount not to exceed $10,000,000 at any time outstanding,
(viiixv) Debt the Other Existing Letters of Credit, but, with respect to each Other Existing Letter of Credit, only until such time as such letter of credit expires in accordance with its terms in effect on the Closing Date or is otherwise cancelled or terminated,
(xvi) Guarantees (i) of any Loan Party in respect of Debt of the Company or any bankers’ acceptanceother Loan Party otherwise permitted hereunder and (ii) of any Subsidiary that is not a Loan Party in respect of Debt of any other Subsidiary that is not a Loan Party otherwise permitted hereunder, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;and
(xvii) additional Debt not to exceed $10,000,000 at any time outstanding.
Appears in 1 contract
Samples: Debtor in Possession Loan Agreement (Eastman Kodak Co)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on in the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, case of the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;Borrower,
(ii) Debt under the Loan Documents;
(iiiA) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposespermitted under Section 5.02(m) hereof;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor a Subsidiary by any Loan Party and (C) Guarantor, which Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agentconstitute Pledged Debt, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject subordinated to subordination provisions the Facilities and on terms acceptable to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent to and such promissory notes shall be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to pledged as security for the Obligations of such Loan Party the holder thereof under this Agreement and the other Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement;
(C) so long as no Event of Default has occurred and is continuing, or would result therefrom, (x) other unsecured Debt and (y) Debt secured by Liens permitted under Section 5.02(a)(v); provided that before and after giving effect to such Debt, the Borrower is in pro forma compliance with the covenants in Section 5.04, calculated based on the financial statements most recently delivered pursuant to Section 5.03 and as though such Debt had been incurred at the beginning of the four-quarter period covered thereby;
(ii) in the case of any Subsidiary of the Borrower,
(A) Debt owed to the Borrower or to a Subsidiary Guarantor, provided that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall be subordinated to the Facilities and on terms acceptable to the Administrative Agent and (z) each intercompany loan owed to a Loan Party shall be pledged evidenced by that Loan Party as security under the Collateral Documents promissory notes in form and will be subject substance satisfactory to a perfected Lien granted in favor of the Administrative Agent and such promissory notes shall be pledged as security for the Lenders Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the Ordersterms of the Security Agreement; and
(B) so long as no Event of Default has occurred and is continuing or would result therefrom, other unsecured Debt in an aggregate principal amount not to exceed $10 million at any one time outstanding;
(viii) in the case of the Borrower and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) so long as no Event of Default has occurred and is continuing, or would result therefrom, Debt secured by Liens permitted by Section 5.02(a)(iv); provided, that before and after giving effect to such Debt, the Borrower is in pro forma compliance with the financial covenants set forth in Section 5.04 hereof calculated based on the financial statements most recently delivered pursuant to Section 5.03 and as though such Debt was incurred at the beginning of the four-quarter period covered thereby, and
(C) the Surviving Debt, and Capitalized Leases arising after any Debt extending the Closing Date maturity of, or refunding or refinancing, in whole or in part, any Surviving Debt, provided that the terms of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are otherwise permitted by the Loan Documents, provided further that the principal amount of such Surviving Debt shall not be increased above the principal amount thereof outstanding immediately prior to exceed such extension, refunding or refinancing (except by an aggregate principal amount equal to $2,500,000 at any time outstanding;
a reasonable premium paid, and reasonable fees and expenses incurred, in connection with such refinancing), and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing, provided still further that the terms relating to principal amount, amortization, maturity, collateral (viif any) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
and subordination (vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliersif any), customersand other material terms taken as a whole, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptancesuch extending, letter refunding or refinancing Debt, and of credit, warehouse receipt or similar facilities any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the ordinary course Loan Parties or the Lender Parties than the terms of business;any agreement or instrument governing the Surviving Debt being extended, refunded or refinanced and the interest rate applicable to any such extending, refunding or refinancing Debt does not exceed the then applicable market interest rate.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on in the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, case of the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;Borrower,
(ii) Debt under the Loan Documents;
(iiiA) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or commodity pricing, in each case incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection consistent with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;prudent business practice,
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any nona direct or indirect wholly-Debtor owned Subsidiary by any Loan Party and (C) of the Borrower, which Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) shall constitute Pledged Debt, (y) shall be subordinated to any Debt of the extent that Borrower under the Loan Documents on terms reasonably acceptable to the Administrative Agent requires that an intercompany loan is and (z) if evidenced by a promissory notenotes, such promissory note shall be in form and substance satisfactory to the Administrative Agent and shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Pledge Agreement; and
(C) Debt incurred by the Borrower (which may be guaranteed by the Guarantors) in connection with the issuance of unsecured senior notes (the “Permitted Senior Notes”); provided that (1) no Default or Event of Default shall have occurred and be continuing at the time of any such issuance or would be caused by such issuance, (2) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 5.04 after giving effect to the incurrence of such Debt and shall provide the Administrative Agent and Lenders with a pro forma compliance certificate evidencing such compliance at least 10 days (or such shorter period as may be agreed to by the Administrative Agent) in advance of any such Debt issuance, (3) the Borrower shall comply with the mandatory prepayment requirements set forth in Section 2.06(b)(ii), (4) such Debt shall rank no higher than pari passu with the Obligations, (5) the maturity of such Debt shall be at least six (6) months after the latest Termination Date, (6) the terms of such Debt may not restrict, limit or otherwise encumber the ability of the Borrower or any Subsidiary to grant Liens in favor of the Administrative Agent or any Lender under this Agreement or any other Loan Document, and (7) such Debt shall otherwise be issued on terms and conditions reasonably satisfactory to the Administrative Agent.
(ii) in the case of any Subsidiary of the Borrower, Debt owed to the Borrower or to a wholly owned Subsidiary of the Borrower, provided that, in each case, to the extent such Debt exceeds $10,000,000 in the aggregate, such Debt (x) shall constitute Pledged Debt, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject on terms acceptable to subordination provisions the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent to and such promissory notes shall be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to pledged as security for the Obligations of such Loan Party the holder thereof under this Agreement and the other Loan Documents to which such holder is a party and (z) each intercompany loan owed delivered to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Ordersterms of the Pledge Agreement; and
(iii) the Guaranties and, in the case of the Loan Parties and their Subsidiaries,
(A) Debt under the Loan Documents;
(vB) So long as no Default has occurred and is continuing, Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed in the aggregate $10,000,000 at any time outstanding; provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (B) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (B) in the event that a Default has occurred and is continuing;
(C) Capitalized Leases (other than those permitted by clause (F) below) not to exceed in the aggregate $10,000,000 at any time outstanding, and in the case of Capitalized Leases to which any Subsidiary of a Loan Party is a party, Debt of the Loan Party of the type described in clause (j) of the definition of Debt guaranteeing the obligations of such Subsidiary under the Capitalized Leases permitted under this clause (C);
(D) Debt of any Person that becomes a Subsidiary of the Borrower after the Effective Date in accordance with the terms of Section 5.02(f) which Debt does not exceed $10,000,000 in the aggregate and is existing at the time such Person becomes a Subsidiary of the Borrower;
(E) So long as no Default has occurred and is continuing, other unsecured Debt of the Borrower in an aggregate principal amount equal not to exceed $2,500,000 10,000,000 at any one time outstanding; provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (E) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (E) in the event that a Default has occurred and is continuing;
(viF) endorsement the Surviving Debt, and any Debt extending the maturity of, or refunding or refinancing, in whole or in part, any Surviving Debt; provided that the terms of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are otherwise permitted by the Loan Documents; provided further that the principal amount of such Surviving Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing;
(G) Contingent obligations of the Loan Parties or any of their Subsidiaries in an amount not to exceed $10,000,000; provided that such contingent obligations are unsecured;
(H) Endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viiiI) Debt in respect of letters of credit in an aggregate amount not to exceed $2,000,000 at any bankers’ acceptance, letter time outstanding;
(J) Debt in respect of credit, warehouse receipt or similar facilities entered into indemnification obligations in connection with bonds and letters of credit related to self insurance and insurance programs and policies of the ordinary course Loan Parties and their respective Subsidiaries;
(K) Obligations in respect of business;the Borrower’s Non-Qualified Deferred Compensation Plan to the extent of assets of such plan are on the Borrower’s balance sheet; and
(L) Guarantee obligations of the Guarantors in respect of Debt of the Borrower permitted pursuant to Section 5.02(b)(i)(C).
Appears in 1 contract
Samples: Credit Agreement (Cracker Barrel Old Country Store, Inc)
Debt. Create, incur, assume or suffer to exist, or permit in any of its Subsidiaries to create, incur, assume manner become or suffer to existbe liable in respect of, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(iia) Debt under the Loan Documents;
(iiib) Debt in respect described in, or incurred under commitments described in, Schedule 6.02, and any Debt refinancing, extending, renewing or replacing any such Debt to the extent the principal amount of Hedge Agreements incurred in such refinancing, extending, renewing or replacing Debt does not exceed the ordinary course principal amount of business and providing protection such Debt being refinanced, extended, renewed or replaced;
(c) unsecured Debt of the Borrower or any Subsidiary owing to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either caseother Subsidiary; provided that (i) any such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by of any Loan Party owing to any other Subsidiary that is not a Loan PartyParty is subordinated to the obligations of such Loan Party hereunder on terms in form and substance reasonably acceptable to the Administrative Agent, (Bii) any such Debt owed to of any non-Debtor Subsidiary by any that is not a Loan Party owing to a Loan Party is permitted under Section 6.05 and (Ciii) if any such Debt owed by of any non-Debtor Subsidiary to any that is not a Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) owing to the extent that the Administrative Agent requires that an intercompany loan a Loan Party is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory pledged to the Administrative Agent to be contained in for the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor benefit of the Administrative Agent and the Lenders pursuant to the OrdersSecured Parties;
(vd) Guarantees of the Borrower or any Subsidiary in respect of Debt secured by Liens of the Borrower or any Wholly-Owned Subsidiary permitted hereunder;
(e) Capital Leases incurred to make Capital Expenditures permitted pursuant to Section 6.14;
(f) Capital Leases incurred in connection with any Sale and Leaseback Transaction permitted by Section 5.02(a)(iv6.13(a)(ii);
(g) and Capitalized Leases arising after the Closing Date not to exceed Debt in an aggregate principal amount equal not to exceed $2,500,000 20,000,000 at any time outstanding; provided that the aggregate principal amount of any such Debt that is secured may not exceed $5,000,000 at any time outstanding;
(vih) endorsement Debt incurred in connection with the construction or development of negotiable instruments any Governmental Fueling Facility; provided the aggregate principal amount of such Debt does not exceed $20,000,000 at any time outstanding for deposit all Governmental Fueling Facilities in the Construction Phase;
(i) Debt consisting of the financing of insurance premiums; provided that the final scheduled maturity of such Debt shall not exceed one (1) year after the date of incurrence thereof;
(j) Debt incurred solely for the purpose of financing the acquisition, construction or collection improvement of any fixed or capital assets, including Capital Leases and any Debt assumed in connection with the acquisition of any such assets; provided that (i) the principal amount of such Debt does not exceed the cost of acquiring, constructing or improving such fixed or capital assets, (ii) the aggregate principal amount of Debt permitted under this clause (j) shall not exceed $20,000,000 at any time outstanding and (iii) such Debt is incurred pursuant to, or within 180 days after, the acquisition, construction or improvement thereof;
(k) Debt of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the Closing Date, or Debt of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a transaction permitted under Section 6.05; provided that (i) such Debt exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation) or such assets being acquired and (ii) the aggregate principal amount of Debt permitted by this clause (k) shall not exceed $10,000,000 at any time outstanding;
(l) Debt owed in respect of any overdrafts and related liabilities arising from treasury, depository and cash management and other bank product services (including purchase card services) or in connection with any automated clearing-house transfers of funds; provided that such Debt shall be repaid in full within twenty (20) Business Days of the incurrence thereof;
(m) Permitted ABL Debt in an aggregate principal amount not to exceed (i) $150,000,000 at any time outstanding plus (ii) $50,000,000 at any time outstanding, so long as, in the case of this clause (ii), on the date on which any credit facility (including any incremental commitments under an existing credit facility) under which Permitted ABL Debt in excess of $150,000,000 would be made available becomes effective, the Total Leverage Ratio, calculated on a pro forma basis after giving effect to such credit facility and assuming the full utilization of such credit facility as loans, shall be 2.50 to 1.00 or less; provided that at any time no more than $25,000,000 of such Debt outstanding may be the primary obligation (as borrower or account party) of Subsidiaries that are not Loan Parties; and
(n) reimbursement obligations in respect of surety, appeal or performance bonds or similar transactions obligations incurred in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Restricted Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on in the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, case of the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;Borrower,
(ii) Debt under the Loan Documents;
(iiiA) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection consistent with prudent business practice with the Borrower’s or aggregate Agreement Value thereof not to exceed $2,000,000 at any of its Subsidiaries’ operationstime outstanding, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;and
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor a Restricted Subsidiary by any Loan Party and (C) of the Borrower, which Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) shall, in the case of Debt owed to the extent that a Loan Party, constitute Pledged Debt, (y) shall be on terms acceptable to the Administrative Agent requires that an intercompany loan is and (z) if evidenced by a promissory notenotes, such promissory note notes shall be in form and substance satisfactory to the Administrative AgentAgent and shall, in the case of Debt owed to a Loan Party, be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreement;
(ii) in the case of any Restricted Subsidiary of the Borrower, Debt owed to the Borrower or to a Restricted Subsidiary of the Borrower, provided, that, in each case, such Debt (x) shall, in the case of Debt owed to a Loan Party, constitute Pledged Debt, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject on terms acceptable to subordination provisions the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent to be contained and such promissory notes shall, in the respective intercompany note, subordinating the obligations case of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan Debt owed to a Loan Party shall Party, be pledged by that Loan Party as security for the Obligations of the holder thereof under the Collateral Loan Documents to which such holder is a party and will be subject delivered to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Ordersterms of the Security Agreement;
(viii) in the case of the Borrower and its Restricted Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section 5.02(a)(iv),
(C) Capitalized Leases,
(D) (x) the Existing Debt, and (y) any Debt extending the maturity of, or refunding or refinancing, in whole or in part, any Existing Debt, provided, that the terms of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are otherwise permitted by the Loan Documents, provided further that the principal amount of such Existing Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing, provided still further that the terms relating to principal amount, amortization, maturity, collateral (if any) and Capitalized Leases arising after subordination (if any), and other material terms taken as a whole, of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Closing Date Loan Parties or the Lender Parties than the terms of any agreement or instrument governing the Existing Debt being extended, refunded or refinanced and the interest rate applicable to any such extending, refunding or refinancing Debt does not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding;the then applicable market interest rate,
(vi) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viiE) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees any Person that becomes a Restricted Subsidiary of the Borrower and its Subsidiaries;after the date hereof in accordance with the terms of Section 5.02(f) which Debt is existing at the time such Person becomes a Restricted Subsidiary of the Borrower (other than Debt incurred solely in contemplation of such Person becoming a Restricted Subsidiary of the Borrower),
(viiiF) Debt Contingent Obligations (1) in respect of obligations of the Loan Parties permitted hereunder, (2) described on Schedule 5.02(b)(iii)(F), (3) arising in connection with indemnity programs for employees and or agents, and (4) in respect of loans and advances made to employees and/or agents pursuant to the Commission Advance Program or on account of errors and omissions insurance coverage programs,
(G) Debt under any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities insurance premium financing arrangement entered into in the ordinary course of business, and
(H) other Debt not otherwise prohibited by the terms of the proviso set forth at the end of this Section 5.02(b) and subordinated to Debt incurred hereunder on terms and conditions reasonably satisfactory to the Administrative Agent (except to the extent otherwise permitted by Section 8.06);
(iv) in the case of any Limited Purpose Subsidiary, Non-Recourse Debt, provided that, notwithstanding the treatment of GXXX Property Acquisition and the GXXX Property Acquisition Subsidiaries as Unrestricted Subsidiaries for financial covenant purposes, the Borrower is in compliance with Section 5.04(a) without regard to the proviso thereto; and
(v) In the case of any Triple Net Properties Limited Purpose Subsidiary, Debt for Borrowed Money (excluding Debt for Borrowed Money which is Non-Recourse Debt other than Debt for Borrowed Money in respect of Non-Recourse Mezzanine Financing) which is secured by direct Equity Interests in the Triple Net Properties Limited Purpose Subsidiary that has incurred such Debt for Borrowed Money; provided, however, that notwithstanding the provisions of subsections (iii)(A) through (iii)(H) above, the aggregate amount of all Debt described in subsections (iii)(B), (iii)(C), (iii)(D)(y), (iii)(E) and (iii)(H) above that is secured by Liens shall not exceed $20,000,000 at any time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Grubb & Ellis Co)
Debt. CreateThe Issuer will not, and will not permit any other Note Party to, incur, create, assume or suffer to existexist any Debt, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanexcept:
(ia) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness Notes or other Obligations arising under the Prepetition Loan Note Documents and or any guaranty of or suretyship arrangement for the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt Notes or other Obligations arising under the Loan Note Documents;
(iiib) Debt in respect of Hedge Agreements incurred any Note Party under Purchase Money Security Interests and Capital Leases not to exceed $2,000,000;
(c) Debt associated with worker’s compensation claims, bonds or surety obligations required by Governmental Requirements or by third parties in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s operation of, or provision for the abandonment and remediation of, the Oil and Gas Properties;
(d) (i) Debt between the Issuer and its Subsidiaries that are Note Parties, (ii) Debt between the Subsidiaries of the Issuer which are Note Parties, and (iii) Debt extended to the Issuer and its Subsidiaries which are Note Parties by any of its Subsidiaries’ operations, in either caseother Note Party; provided that (1) such Hedge Agreements are bona fide hedging activities Debt is not held, assigned, transferred, negotiated or pledged to any Person other than a Note Party, and are not entered into for speculative purposes(2) any such Debt owed by either the Issuer or a Guarantor shall be subordinated to the Obligations on terms set forth in the Guaranty Agreement;
(ive) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding;
(vi) endorsement endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viif) Debt consisting of guaranty Obligations obligations to royalty, overriding and working interest owners, joint interest obligations, trade payables and other lease operating expenses incurred in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiarieswhich are not more than ninety (90) days past due;
(viiig) Debt associated with appeal bonds and bonds or sureties provided to any Governmental Authority or to any other Person in connection with the operation of the Oil and Gas Properties, including with respect to plugging, facility removal and abandonment of the Oil and Gas Properties;
(h) Debt in respect of Senior Unsecured Notes; provided that (i) after giving effect to the incurrence or issuance thereof, the Issuer shall be in compliance on a pro forma basis with the financial covenant set forth in Section 9.01 and (ii) the Issuer shall only be permitted to incur such Senior Unsecured Notes if the net cash proceeds thereof (other than up to $10,000,000 in excess proceeds incurred as a result of good-faith rounding and estimation in determining the issuance amount of such Senior Unsecured Notes) are used solely to redeem in full the Issuer Series B Preferred Units and substantially contemporaneously therewith an equivalent amount of Series B Redeemable Preferred Stock of RRI in full in accordance with the RRI Certificate of Designations no later than twenty-five (25) days after the date of incurrence of such Senior Unsecured Notes if, and only if, at such time the Series B Redeemable Preferred Stock of RRI is owned in whole or in part by EIG (it being agreed and understood that if EIG does not own the Series B Redeemable Preferred Stock in whole or in part at such time, no Senior Unsecured Notes may be incurred hereunder); provided that until the redemption of the Issuer Series B Preferred Units and the Series B Redeemable Preferred Stock of RRI, such net cash proceeds received from the issuance of the Senior Unsecured Notes shall be held in a deposit account subject to an Account Control Agreement;
(i) to the extent constituting Debt, obligations in respect of Swap Agreements;
(j) other Debt, not to exceed $4,500,000 in the aggregate at any bankers’ acceptanceone time outstanding; provided that any secured Debt shall not exceed $2,000,000;
(k) any guarantee of any other Debt permitted to be incurred hereunder;
(l) Debt in respect of the First Lien Credit Facility that is subject to the terms of the Intercreditor Agreement; provided that (i) such Debt is a single conforming commercial banking revolving facility for oil and gas secured loan transactions with no differentiation among the First Lien Lenders and all such Debt is pari passu in right of payment, letter pricing, maturity, security and liquidation thereof, (ii) the Person selected to be the administrative agent thereunder is JPMorgan Chase Bank, N.A. or another administrative agent recognized as being an established administrative agent for commercial banking borrowing base lending facilities for oil and gas secured transactions and (iii) the First Lien Lenders are commercial banking institutions that invest in conforming revolving borrowing base facilities of credit, warehouse receipt or similar facilities entered into such type in the ordinary course of business;; and
(m) obligations in respect of any Issuer Preferred Units so long as such obligations are not classified as debt under GAAP or no mandatory redemption payment is then due; provided, however, even if such Issuer Preferred Units are classified as debt under GAAP or a mandatory redemption payment is due thereunder (“Reclassified Units”), such Reclassified Units shall still be deemed permitted under this Section 9.02 as long as the Issuer is in pro forma compliance with the financial covenant set forth in Section 9.01 measured upon giving effect to such Reclassified Units.
Appears in 1 contract
Debt. Create, incur, assume Create or suffer to exist, or permit any of its Subsidiaries to create, incur, assume create or suffer to exist, any Debt other thanthan the following, provided that any Debt permitted by any clause below shall be permitted under this Section 5.02(d), notwithstanding that such Debt would not be permitted by any other clause:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor the Company or to a Consolidated Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding of the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi)Company, provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, all such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan Debt owed by a Loan Party to a non-Debtor Subsidiary Person that is not a Loan Party shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder subordinated to the Obligations of such Loan Party under this Agreement pursuant to an intercompany subordination agreement or other arrangements reasonably satisfactory to the Agent,
(ii) Debt existing on the Petition Date and described on Schedule 5.02(d) hereto (the other Loan Documents “Existing Debt”), and any Permitted Refinancing thereof,
(iii) Debt secured by Liens of the type described in and to the extent permitted by Section 5.02(a)(iii) and (zvi) each intercompany loan owed in an aggregate amount not to exceed $25,000,000 at any time outstanding,
(iv) Debt of a Loan Party shall be pledged by that Loan Party as security under Person existing at the Collateral Documents and will be subject to a perfected Lien granted in favor time such Person is amalgamated, merged into or consolidated with the Company or any Subsidiary of the Administrative Agent and Company or becomes a Subsidiary of the Lenders pursuant to the Orders;Company; provided that such Debt was not created in contemplation of such amalgamation, merger, consolidation or acquisition,
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after under the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding;Loan Documents,
(vi) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;[reserved],
(vii) Debt incurred by Kodak International Finance Limited, a company organized and existing under the laws of England, (x) in connection with short term working capital needs in an aggregate amount not to exceed $25,000,000 at any time outstanding and (y) consisting of guaranty Hedge Agreement Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;business to protect the Company and its Subsidiaries against fluctuations in commodities, interest or exchanges rates,
(viii) Debt incurred by Subsidiaries organized under the laws of any jurisdiction outside of the United States or Canada in an aggregate amount not to exceed $20,000,000 at any time outstanding,
(ix) Debt of Subsidiaries that are not Loan Parties in respect of (a) treasury management services, clearing, corporate credit card and related services provided to any such Subsidiaries, (b) letters of credit issued for the benefit of any such Subsidiaries,
Appears in 1 contract
Samples: Debt Agreement (Eastman Kodak Co)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition in the case of TCML, Debt outstanding owed to a wholly owned Subsidiary of TCML, which Debt (x) shall constitute Pledged Debt, (y) shall be on subordinated terms reasonably acceptable to the Petition Date Administrative Agent and set forth (z) shall be evidenced by promissory notes in Schedule 4.01(r) (including, without limitation, form and substance reasonably satisfactory to the Indebtedness Administrative Agent and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Prepetition Loan Note Documents to which such holder is a party and delivered to the Senior Subordinated Notes) without giving effect Collateral Agent pursuant to any extensions, renewals and replacements the terms of any such Debtthe Security Agreement;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course case of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any Subsidiary of its Subsidiaries’ operationsTCML, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor TCML or to a wholly owned Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi)TCML, provided that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall be on terms reasonably acceptable to the extent that the Administrative Agent requires that an intercompany loan is and (z) shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance reasonably satisfactory to the Administrative Agent to and such promissory notes shall be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to pledged as security for the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security holder thereof under the Note Documents to which such holder is a party and delivered to the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;terms of the Security Agreement; and
(viii) the Guaranties and, in the case of TCML and its Subsidiaries,
(A) Debt under the Note Documents,
(B) so long as no Default has occurred and is continuing, Debt secured by Liens permitted by Section 5.02(a)(iv4.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed in the aggregate $3,000,000 at any time outstanding,
(C) Capitalized Leases not to exceed in the aggregate $3,000,000 at any time outstanding,
(D) the Existing Debt and any Debt extending the maturity of, or refunding or refinancing, in whole or in part, any Existing Debt; provided that the terms of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are otherwise permitted by the Note Documents; provided further that the principal amount of such Existing Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing; and provided further that the terms relating to this principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Note Parties or the Holders than the terms of any agreement or instrument governing the Existing Debt being extended, refunded or refinanced and the interest rate applicable to any such extending, refunding or refinancing Debt does not exceed the then applicable market interest rate,
(E) any Permitted Refinancing Debt in an aggregate principal amount equal not to exceed $2,500,000 120,000,000 at any one time outstanding;, and
(vi) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viiF) Debt consisting of guaranty Obligations in under the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;First Lien Facilities.
Appears in 1 contract
Samples: Second Lien Senior Secured Note Agreement (Triple Crown Media, Inc.)
Debt. CreateNot, incur, assume or suffer to exist, or and not permit any of its Subsidiaries to other Loan Party to, create, incur, assume or suffer to existexist any Debt, any Debt other thanexcept:
(ia) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersDocuments;
(vb) Debt secured by Liens permitted by Section 5.02(a)(iv11.2(d); provided that the aggregate amount of all such Debt at any time outstanding shall not exceed $2,000,000;
(i) unsecured Debt owing by any Borrower to any other Loan Party, (ii) unsecured Debt owing by any Loan Party (other than a Borrower) which is a Wholly-Owned Subsidiary to any other Loan Party (other than a Borrower), (iii) unsecured Debt owing by any Loan Party (other than a Borrower or a Wholly-Owned Subsidiary) to any other Loan Party, in an aggregate amount at any time outstanding not to exceed $3,000,000 among all Loan Parties, and (iv) unsecured Debt owing by any Loan Party to a First-Tier Foreign Subsidiary of any Loan Party, in an aggregate amount at any time outstanding not to exceed $3,000,000 among all Loan Parties; provided that in each of the cases of (i), (ii) and Capitalized Leases arising after (iii) above, any such Debt shall be evidenced by a demand note in the form of Exhibit H attached hereto and pledged and delivered to the Administrative Agent pursuant to the Collateral Documents as additional collateral security for the Obligations; provided, further that in each of the cases of clause (i), (ii) and (iii) any such Debt shall be subordinated to the Obligations of the Loan Parties hereunder in a manner reasonably satisfactory to the Administrative Agent (it being agreed that the subordination provisions set forth in the demand note referred to above shall be deemed to be reasonably satisfactory to the Administrative Agent);
(d) unsecured Subordinated Debt (other than Debt described in clause (c) above) in an amount at any time outstanding not to exceed $7,500,000; provided that such Debt remains subject to subordination agreements reasonably acceptable to the Administrative Agent;
(e) unsecured Hedging Obligations for bona fide hedging purposes and not for speculation and the Hedging Agreement required by Section 10.13 hereof,;
(f) Debt existing on the date hereof described on Schedule 9.26 and any extension, renewal or refinancing thereof so long as neither the principal amount thereof is increased, the weighted average life to maturity decreased or, if secured, any additional collateral is granted as security therefor;
(g) the Debt to be Repaid (so long as such Debt is repaid on the Closing Date not with the proceeds of the initial Loans hereunder);
(h) unsecured Contingent Liabilities arising with respect to exceed an aggregate principal amount equal customary indemnification obligations in favor of sellers in connection with Permitted Acquisitions and purchasers in connection with dispositions permitted under Section 11.4;
(i) up to $2,500,000 at any time outstandingoutstanding of Acquired Debt assumed in Permitted Acquisitions which, if secured, the Liens thereunder would be of a type permitted pursuant to Section 11.2(d);
(vij) endorsement unsecured Debt in respect of negotiable instruments for deposit bid, performance or collection surety, appeal or similar transactions bonds issued for the account of and completion guarantees provided by the Loan Parties in the ordinary course of business;
(viik) Debt consisting arising from the honoring by a bank or other financial institution of guaranty Obligations in the ordinary course of business of the obligations of suppliersa check, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt draft or similar facilities entered into instrument inadvertently drawn against insufficient funds in the ordinary course of business; provided, however, that such Debt is extinguished within five Business Days of incurrence;
(l) unsecured Debt under and in respect of the CoCaLo Note (including the guaranty thereof pursuant to the Kids Line/CoCaLo Guaranty) incurred pursuant to and in accordance with the CoCaLo Acquisition Documents; and
(m) Debt arising in connection with endorsement of instruments for deposit in the ordinary course of business.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries Amazonia, Ylopa and any Intermediate Holding Company to create, incur, assume or suffer to exist, any Debt, except, (w) in the case of I.I.I. upon the occurrence of the Zoompart Succession, unsecured Debt other thanwhich may be payable in Equity Interests in I.I.I., in form and substance satisfactory to the Majority Lenders, of I.I.I, to Zoompart incurred in connection with the accession by Zoompart to the Subordinated Loans described in clause (z)(iv) below, (x) Existing Debt, (y) Debt of any such Person to any Subsidiary of the Borrower for the sole purpose of facilitating the upstreaming of Distributions to the Borrower in accordance with Section 5.01(q), provided, that (i) the proceeds of any such Debt are immediately upstreamed, (ii) any such Debt shall bear an interest rate no higher than the market interest rate for comparable Debt, (iii) any such Debt shall be payable exclusively with the proceeds of dividends received from the relevant lender of such Debt and (iv) to the extent such Debt is incurred by the Borrower, such Debt shall be in the form of a Subordinated Loan, and (z) in the case of the Borrower:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or currency exchange rates relevant to the Borrower’s and its Material Subsidiaries’ principal business, in each case incurred in the ordinary course of business for non-speculative purposes and providing protection to consistent with prudent business practice,
(ii) Debt under this Agreement,
(iii) the Borrower assumption of Debt initially incurred for the sole purpose of facilitating the upstreaming of Distributions by Ylopa and its Subsidiaries against fluctuations in currency values or commodity prices in connection Amazonia, provided, that (i) any such Debt shall bear an interest rate no higher than the market interest rate for comparable Debt and (ii) any such Debt shall be payable exclusively with the Borrower’s or any proceeds of its Subsidiaries’ operations, in either case; provided that dividends received from the relevant lender of such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;Debt,
(iv) (A) unsecured Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations form of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor Subordinated Loans constituting all or part of the Administrative Agent and the Lenders pursuant to the Orders;Capital Contribution, and
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after extensions, renewals or replacements of any of the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding;
(vi) endorsement of negotiable instruments foregoing for deposit or collection or similar transactions the same or, except in the ordinary course case of business;
clause (viiii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliersabove, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;a lesser amount.
Appears in 1 contract
Samples: Credit Agreement (Ternium S.A.)
Debt. Create, incur, assume or suffer to exist, or permit in any of its Subsidiaries to create, incur, assume manner become or suffer to existbe liable in respect of, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(iia) Debt under the Loan Documents;
(iiib) Debt in respect described in, or incurred under commitments described in, Schedule 6.02 , and any Debt refinancing, extending, renewing or replacing any such Debt to the extent the principal amount of Hedge Agreements incurred in such refinancing, extending, renewing or replacing Debt does not exceed the ordinary course principal amount of business and providing protection such Debt being refinanced, extended, renewed or replaced;
(c) unsecured Debt of the Borrower or any Subsidiary owing to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either caseother Subsidiary; provided that (i) any such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by of any Loan Party owing to any other Subsidiary that is not a Loan PartyParty is subordinated to the obligations of such Loan Party hereunder on terms in form and substance reasonably acceptable to the Administrative Agent, (Bii) any such Debt owed to of any non-Debtor Subsidiary by any that is not a Loan Party owing to a Loan Party is permitted under Section 6.05 and (Ciii) if any such Debt owed by of any non-Debtor Subsidiary to any that is not a Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) owing to the extent that the Administrative Agent requires that an intercompany loan a Loan Party is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory pledged to the Administrative Agent to be contained in for the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor benefit of the Administrative Agent and the Lenders pursuant to the OrdersSecured Parties;
(vd) Guarantees of the Borrower or any Subsidiary in respect of Debt secured by Liens of the Borrower or any Wholly Owned Subsidiary permitted hereunder;
(e) Capital Leases incurred to make Capital Expenditures permitted pursuant to Section 6.14;
(f) Capital Leases incurred in connection with any Sale and Leaseback Transaction permitted by Section 5.02(a)(iv6.13(a)(ii);
(g) and Capitalized Leases arising after the Closing Date not to exceed Debt in an aggregate principal amount equal not to exceed $2,500,000 20,000,000 at any time outstanding; provided that the aggregate principal amount of any such Debt that is secured may not exceed $5,000,000 at any time outstanding;
(vih) endorsement Debt incurred in connection with the construction or development of negotiable instruments any Governmental Fueling Facility; provided the aggregate principal amount of such Debt does not exceed $20,000,000 at any time outstanding for deposit all Governmental Fueling Facilities in the Construction Phase;
(i) Debt consisting of the financing of insurance premiums; provided that the final scheduled maturity of such Debt shall not exceed one (1) year after the date of incurrence thereof;
(j) Debt incurred solely for the purpose of financing the acquisition, construction or collection improvement of any fixed or capital assets, including Capital Leases and any Debt assumed in connection with the acquisition of any such assets; provided that (i) the principal amount of such Debt does not exceed the cost of acquiring, constructing or improving such fixed or capital assets, (ii) the aggregate principal amount of Debt permitted under this clause (j) shall not exceed $20,000,000 at any time outstanding and (iii) such Debt is incurred pursuant to, or within 180 days after, the acquisition, construction or improvement thereof;
(k) Debt of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the Closing Date, or Debt of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a transaction permitted under Section 6.05; provided that (i) such Debt exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation) or such assets being acquired and (ii) the aggregate principal amount of Debt permitted by this clause (k) shall not exceed $10,000,000 at any time outstanding;
(l) Debt owed in respect of any overdrafts and related liabilities arising from treasury, depository and cash management and other bank product services (including purchase card services) or in connection with any automated clearing-house transfers of funds; provided that such Debt shall be repaid in full within twenty (20) Business Days of the incurrence thereof;
(m) Permitted ABL Debt in an aggregate principal amount not to exceed $200,000,000 at any time outstanding; provided that at any time no more than $25,000,000 of such Debt outstanding may be the primary obligation (as borrower or account party) of Subsidiaries that are not Loan Parties; and
(n) reimbursement obligations in respect of surety, appeal or performance bonds or similar transactions obligations incurred in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries or any Excluded Subsidiary (other than Excluded Subsidiaries of the type referred to in clause (b) or (c) of the definition thereof) to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(ii) to the extent constituting Debt, Obligations under the Contract Support Documents; provided that at no time shall any such Obligations constitute Contract Support First Lien Advances to the extent that the outstanding principal amount of such Contract Support First Lien Advances when taken together with the Maximum First Lien Claims under any Permitted Commodity Hedge and Power Sale Agreement then in effect exceed $475,000,000;
(iii) without duplication of clause (i) above, secured Debt under any letter of credit facility (including, without limitation, any Debt incurred under the Special L/C Facility, any Special L/C Incremental Facility (as defined in the First Lien Loan Agreement), this Agreement, any First Lien Incremental Facility or any Second Lien Incremental Facility to be used for such purposes, but excluding any letters of credit issued under the working capital facility under the First Lien Credit Agreement) that supports Obligations of the Loan Parties under the Purchase Agreement, Permitted Commodity Hedge and Power Sale Agreements or other Obligations incurred in connection with the operation of the Projects, in an aggregate principal amount not to exceed $650,000,000 at any one time outstanding; provided that (A) the lender(s) or letter of credit issuer(s) (or agent on behalf of such lender(s) or letter of credit issuer(s)) of such Debt are party to the Intercreditor Agreement as, and shall have the obligations of a First Lien Secured Party or Second Lien Secured Party thereunder, (B) such Debt shall only be secured by the Liens created by the Collateral Documents or the Second Lien Collateral Documents, and (C) such Debt shall not mature earlier than the Maturity Date;
(iv) secured Debt to finance the acquisition of the Ontelaunee Project (including any Debt under any First Lien Incremental Facility or any Second Lien Incremental Facility to be used for such purposes) in an aggregate amount not to exceed $165,000,000 in the aggregate; provided that (A) the lender(s) or letter of credit issuer(s) (or agent on behalf of such lender(s) or letter of credit issuer(s)) of such Debt are party to the Intercreditor Agreement as, and shall have the obligation of, either a First Lien Secured Party or Second Lien Secured Party thereunder; (B) such Debt shall only be secured by the Liens created by the Collateral Documents or the Second Lien Collateral Documents; (C) such Debt shall not mature earlier than the Maturity Date, and (D) the Borrower shall have received a Ratings Reaffirmation;
(v) secured Debt in the form of term loans or revolving credit facilities (including any Debt under any First Lien Incremental Facility or any Second Lien Incremental Facility to be used for such purposes) in an aggregate amount not to exceed $100,000,000 in the aggregate; provided that (A) the lender(s) or letter of credit issuer(s) (or agent on behalf of such lender(s) or letter of credit issuer(s)) of such Debt are party to the Intercreditor Agreement as, and shall have the obligation of, either a First Lien Secured Party or Second Lien Secured Party thereunder, (B) such Debt shall only be secured by the Liens created by the Collateral Documents or the Second Lien Collateral Documents (as defined in the Intercreditor Agreement), (C) such Debt shall not mature earlier than the Maturity Date, and (D) the Borrower shall have received a Ratings Reaffirmation;
(vi) (A) Debt under the First Lien Loan Documents in an aggregate principal amount that is not in excess of $1,090,000,000 plus the amount of any Debt incurred under the First Lien Loan Documents to the extent such Debt is incurred pursuant to clauses (iii), (iv) or (v); and (B) Debt under the Second Lien Loan Documents in an aggregate principal amount that is not in excess of $150,000,000 plus the amount of any Debt incurred under the Second Lien Loan Documents to the extent such Debt is incurred pursuant to clauses (iii), (iv) or (v);
(vii) to the extent constituting Debt, obligations under (A) Contractual Obligations in effect as of the date hereof to the extent not constituting Debt for Borrowed Money and (B) Commodity Hedge and Power Sale Agreements to the extent permitted under Section 5.02(l).
(viii) Debt secured by Liens permitted by clause (q) of the definition of “Permitted Liens” not to exceed in the aggregate, when taken together with any Debt permitted to be incurred pursuant to Section 5.02(b)(ix), $75,000,000 at any time outstanding;
(ix) Capitalized Leases not to exceed in the aggregate, when taken together with any Debt permitted to be incurred pursuant to Section 5.02(b)(viii), $75,000,000 at any time outstanding;
(x) South Bay Lease Obligations; provided that the Borrower shall have taken the actions contemplated by Section 3.01(c)(ii);
(xi) to the extent constituting Debt, payment obligations under Hedge Agreements designed to hedge against fluctuations in interest rates in respect of Hedge Agreements the L/C Facility and Second Lien Obligations incurred in the ordinary course of business and providing protection to the Borrower consistent with prudent business practice (it being acknowledged and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or agreed that any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposesthe purpose of complying with Section 5.01(o) above shall be deemed to be permitted Debt under this clause (xi));
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (Bxii) Debt owed to any nonLoan Party, which Debt shall (A) constitute Pledged Debt or Pledged Parent Debt, (B) be on terms reasonably acceptable to the Administrative Agent and (C) be otherwise permitted under the provisions of Section 5.02(f);
(xiii) in the case of any Non-Debtor Recourse Subsidiary, Non-Recourse Debt; provided that (A) before and after giving effect to the incurrence of such Non-Recourse Debt, no Default or Event of Default shall have occurred and be continuing, and (B) any Letter of Credit issued for the benefit of such Group II Portfolio Company shall be terminated, returned for cancellation or cash collateralized in an amount equal to 102.5% of the Available Amount thereof prior to or simultaneously with the incurrence of such Non-Recourse Debt;
(A) Debt of a Person or Debt attaching to assets of a Person that, in either case becomes a Subsidiary of the Borrower and is a Guarantor hereunder or Debt attaching to assets that are acquired by the Borrower or any Guarantor as a result of a Permitted Acquisition; provided that (1) such Debt existed at the time such Person became a Subsidiary of the Borrower or at the time such assets were acquired and, in each case, was not created in anticipation thereof, (2) such Debt is not guaranteed in any respect by any Loan Party (other than any such Person that becomes a Guarantor hereunder) and (C3) (x) the Equity Interests in such Person are or will be pledged to the First Lien Collateral Agent to the extent required under Section 5.01(q) and (y) all other steps required to be taken in connection with the granting of a Lien over the Property (other than Excluded Property) of such Person pursuant to Section 5.01(q) shall have been or will be taken; and (B) any refinancing, refunding, renewal or extension of any Debt owed specified in clause (A); provided that (I) the principal amount of such Debt is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, (II) the direct and contingent obligors with respect to such Debt are not changed and (III) the final maturity of such refinancing, refunding, renewal or extension Debt is no earlier than the existing scheduled maturity date of the Debt being refinanced, renewed or extended;
(A) unsecured subordinated Debt of the Borrower or any Guarantor incurred to finance a Permitted Acquisition in an aggregate amount not to exceed $150,000,000 at any one time outstanding; provided that (1) such Debt is not guaranteed in any respect by any non-Debtor Subsidiary to any Loan Party (other than any Person acquired (the “Acquired Person”) as a result of such Permitted Acquisition or the Loan Party so incurring such Debt) or, in an amount not exceeding the amount case of any Investment made Debt of any Guarantor, by the Borrower, (2)(x) the Borrower pledges or will pledge the Equity Interests of such Acquired Person to the First Lien Collateral Agent to the extent required under extent required under Section 5.01(q) and (y) all other steps required to be taken in connection with the granting of a Lien over the Property (other than Excluded Property) of such Acquired Person pursuant toto Section 5.01(q) shall have been or will be taken, (3) any such Debt is incurred prior to or within 90 days after such Permitted Acquisition, (4) both before and permitted under, Section 5.02(e)(vi), provided that, after giving effect to the incurrence of such Debt (x) no Default or Event of Default shall have occurred and be continuing and (y) the Borrower would be in compliance with the Financial Covenants as of the most recently completed Measurement Period ending prior to the extent that incurrence of such Debt for which financial statements and certificates required by Section 5.03(b) or 5.03(c) were required to be delivered, after giving pro forma effect to the Administrative Agent requires that an intercompany loan incurrence of such Debt and the related Permitted Acquisition and to any other event occurring after such Measurement Period as to which pro forma recalculation is evidenced by a promissory note, appropriate as if such promissory note shall be in form incurrence of Debt and substance the related Permitted Acquisition had occurred as of the first day of such Measurement Period and (5) such Debt is subordinated to the L/C Advances on either customary market terms at the time such Debt is incurred or otherwise on terms reasonably satisfactory to the Administrative Agent; and (B) any refinancing, refunding, renewal or extension of any Debt specified in clause (A); provided that (I) the principal amount of such Debt is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, (yII) each intercompany loan owed by a Loan Party the direct and contingent obligors with respect to a non-Debtor Subsidiary shall be subject such Debt are not changed, (III) the final maturity of such refinancing, refunding, renewal or extension Debt is no earlier than the existing scheduled maturity date of the Debt being refinanced, renewed or extended, and (IV) such Debt is subordinated to subordination provisions in form and substance the L/C Advances on either customary market terms at the time such Debt is incurred or otherwise on terms reasonably satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersAgent;
(vxvi) Debt secured by Liens arising from agreements of the Loan Party, any Guarantor or any of their Subsidiaries providing for indemnification, adjustment of purchase price, earn-out, non-complete, consulting, deferred compensation or other similar obligations in connection with any Permitted Acquisition or Asset Sale permitted by in accordance with Section 5.02(a)(iv5.02(e); provided that (A) such Debt is not reflected on the balance sheet of the Borrower, such Guarantor or such Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for the purposes of this clause (A)) and Capitalized Leases arising after (B) in the Closing Date case of any Asset Sale, the maximum assumable liability in respect of all such Debt shall at no time exceed the gross proceeds, including noncash proceeds (the fair market value of such noncash proceeds being measured at the time received and without giving effect to any subsequent change in value), actually received by the Borrower, such Guarantor or such Subsidiary in connection with such Asset Sale;
(xvii) other unsecured Debt in an aggregate amount not to exceed an aggregate principal amount equal to $2,500,000 35,000,000 at any one time outstanding;
(vixviii) endorsement to the extent constituting Debt, Debt in respect of negotiable instruments for deposit performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees, indemnification obligations, obligations to pay insurance premiums, take or collection or pay obligations and similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations obligations incurred in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiariesnot in connection with Debt for Borrowed Money;
(viiixix) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;business and not in respect of Hedge Agreements or Permitted Commodity Hedge and Power Sale Agreements; and
(xx) Debt incurred to Refinance the Working Capital Facility (as defined in the First Lien Credit Agreement) and any Debt permitted to be incurred under Section 5.02(b)(v) (a “Permitted Working Capital Refinancing”); provided that (A) the aggregate principal amount of such Debt does not exceed the sum of (1) the aggregate amount of the commitments in respect of the Working Capital Facility immediately prior to such refinancing plus (2) an amount, when taken together with any Debt outstanding pursuant to Section 5.02(b)(v), not to exceed $100,000,000, plus (3) the amount of any accrued and unpaid interest in respect of such outstanding principal amount plus (4) the amount of any reasonable fees and expenses incurred in connection with such Refinancing, (B) the lenders (or agents on behalf of the lenders) of such Debt have become a party to the Intercreditor Agreement as, and have the obligations of, the First Lien Secured Parties or the Second Lien Secured Parties thereunder, (C) the maturity date of such Debt is no earlier than the Maturity Date, (D) such Permitted Working Capital Refinancing shall only be secured by the Liens created by the Collateral Documents or the Second Lien Collateral Documents, and (E) to the extent that the aggregate principal amount of such Debt exceeds the sum of the aggregate principal amount of the commitments in respect of the Working Capital Facility immediately prior to such refinancing plus the amount of any accrued and unpaid interest in respect of such outstanding principal amount the amount of any reasonable fees and expenses incurred in connection with such Refinancing, the Borrower shall have received a Ratings Reaffirmation; and
Appears in 1 contract
Samples: First Lien Letter of Credit Facility Agreement (Dynegy Inc /Il/)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on in the Petition Date case of USI and set forth in Schedule 4.01(r) (includingits Subsidiaries, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements (A) designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection consistent with prudent business practice with the Borrower’s or aggregate Agreement Value thereof not to exceed $15,000,000 at any time outstanding in the case of its Subsidiaries’ operations, in either case; provided that such interest rate xxxxxx (excluding for purposes of this calculation Hedge Agreements are bona fide hedging activities and are not entered into in order to comply with Section 6.01(q)) and an aggregate notional amount not to exceed $20,000,000 at any time outstanding in the case of foreign exchange rate xxxxxx (excluding for speculative purposes;purposes of this amount Hedge Agreements entered into in reasonable anticipation of the consummation of an Asset Disposition) and (B) with respect to commodity hedging entered into in the ordinary course of business consistent with past practice and in compliance with Section 6.02(o),
(ivii) in the case of any Loan Party (A) Debt owed by any Loan Party to any other that is a Shared Collateral Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any another Shared Collateral Loan Party and (CB) that is a Non-Shared Collateral Loan Party, Debt owed by any nonto another Non-Debtor Subsidiary to any Shared Collateral Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi)Party, provided that, in each case, such Debt (x) to the extent that the Administrative Agent requires that an intercompany loan is shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative AgentDebt Coordinator and (y) shall constitute Pledged Debt and be pledged as security for the Obligations under the Senior Debt or Bank Debt, as applicable, and delivered to the Collateral Trustees pursuant to the terms of the Pledge and Security Agreement,
(iii) in the case of any Foreign Subsidiary, Debt owed to (x) any other Foreign Subsidiary, (y) each intercompany loan owed by a Loan Party to a non-Debtor USI or any other Subsidiary shall be of USI (subject to subordination provisions the limitations set forth in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and Section 6.02(f)) or (z) each intercompany loan any other Person, so long as such Debt is either (1) Surviving Debt (whether or not funded) and any Debt extending the maturity of, or refunding or refinancing, in whole or in part, such Surviving Debt that meets the requirements set forth in the first two provisos of clause (iv)(D) below, or (2) other Debt in an aggregate principal or face amount owed by all Foreign Subsidiaries to a all such other Persons not to exceed $10,000,000 at any time, and
(iv) in the case of any Loan Party shall be pledged by that Loan Party as security Party,
(A) Debt under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;Transaction Documents,
(vB) Debt secured by Liens permitted by Section 5.02(a)(iv6.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to for all Loan Parties $2,500,000 10,000,000 at any time outstanding;,
(viC) endorsement of negotiable instruments for deposit or collection or similar transactions Capitalized Leases not to exceed in the ordinary course of business;aggregate for all Loan Parties $10,000,000 at any time outstanding,
(viiD) the Surviving Debt, and any Debt extending the maturity of, or refunding or refinancing, in whole or in part, any Surviving Debt, provided that the terms of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are otherwise permitted by the Amendment Documents and the Credit Documents, provided further that the principal amount of such Surviving Debt shall not be increased above the maximum principal amount permitted to be incurred under the commitment thereof immediately prior to such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing, provided still further that the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Banks than the terms of any agreement or instrument governing the Surviving Debt being extended, refunded or refinanced and the interest rate applicable to any such extending, refunding or refinancing Debt does not exceed the then applicable market interest rate,
(E) Debt consisting owed to Foreign Subsidiaries, provided that (i) such Debt shall be subordinated, on terms satisfactory to the Debt Coordinator, to all Bank Debt and (ii) unless such Debt is Debt of guaranty Obligations in a Non-Shared Collateral Loan Party, the ordinary course proceeds of business of such Debt shall be applied concurrently to prepay revolving credit or swingline borrowings (without any required commitment reduction) under the obligations of suppliersUSI Credit Agreement, customers, franchisees and licensees of the Borrower and its Subsidiaries;and
(viiiF) Debt in respect of any bankers’ acceptanceowed to Foreign Loan Parties, letter of creditprovided that such Debt shall be subordinated, warehouse receipt or similar facilities entered into in on terms satisfactory to the ordinary course of business;Debt Coordinator, to all Bank Debt.
Appears in 1 contract
Samples: Amendment, Restatement, General Provisions and Intercreditor Agreement (Us Industries Inc /De)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course case of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party, (B) Debt owed to Party or any nonwholly-Debtor owned Subsidiary by of any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi)Party, provided that, in each case, such Debt (xy) shall be on terms acceptable to the extent that the Administrative Agent requires that an intercompany loan is and (z) shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (yunless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(ii) in the case of each intercompany loan owed by Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt under the Loan Documents and the Revolving Loan Documents,
(B) (1) Capitalized Leases not to exceed in the aggregate $5,000,000 at any time outstanding, and (2) in the case of Capitalized Leases to which any Subsidiary of a Loan Party to is a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany noteparty, subordinating the obligations Debt of such Loan Party thereunder to of the type described in clause (i) of the definition of “Debt” guaranteeing the Obligations of such Loan Party Subsidiary under such Capitalized Leases,
(C) the Surviving Debt described on Schedule 4.01(o) hereto and any Refinancing Debt that extends, refunds or refinances such Surviving Debt,
(D) Debt in respect of Hedge Agreements entered into by the Borrower and designed to hedge against fluctuations in interest rates incurred in the ordinary course of business and consistent with prudent business practice,
(E) Non-Recourse Debt the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement Agreement, and the obligations under any Customary Carve-Out Agreements related thereto,
(F) Secured Recourse Debt the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement, provided that each individual obligation included within Secured Recourse Debt shall not exceed 80% of the value of the collateral securing such Secured Recourse Debt as reasonably determined by Borrower and approved by Administrative Agent,
(G) Unsecured Debt the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement, and
(H) Qualifying Trust Preferred Obligations;
(iii) in the case of the Parent Guarantor,
(A) Debt under the Loan Documents and the Revolving Loan Documents,
(zB) each intercompany loan owed Obligations under any Carve-Out Agreements related to a Loan Party shall be pledged by that Loan Party as security any Non-Recourse Debt permitted under the Collateral Documents and will be subject to a perfected Lien granted Section 5.02(b)(ii)(E), and
(C) Debt in favor respect of the Administrative Agent and the Lenders pursuant to the OrdersCompletion Guaranties;
(viv) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding;
(vi) endorsement endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viiv) Debt consisting of guaranty Obligations in the ordinary course case of business American Campus (U of H), Ltd., the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;Cullen Oaks Phase II Loan; and
(viiivi) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course case of business;ACCSI, the Cullen Oaks Phase II Guaranty; provided that, notwithstanding anything herein to the contrary, no Loan Party shall, nor shall it permit any of its Subsidiaries (including without limitation the On-Campus Participating Entities) to, create, incur or assume any Debt relating to the On-Campus Participating Entities or the On-Campus Participating Properties after the date hereof other than the Cullen Oaks Phase II Loan and the Cullen Oaks Phase II Guaranty.
Appears in 1 contract
Samples: Senior Secured Term Loan Agreement (American Campus Communities Inc)
Debt. CreateNot, incur, assume or suffer to exist, or and not permit any of its Subsidiaries to Loan Party or Subsidiary thereof to, create, incur, assume or suffer to existexist any Debt, any Debt other thanexcept:
(ia) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness Obligations under the Prepetition Loan Documents this Agreement and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the other Loan Documents;
(iiib) the Senior Credit Facility;
(c) [Intentionally Omitted];
(i) Purchase Money Debt in incurred (for avoidance of doubt, other than pursuant to an Acquisition) by a Loan Party or Subsidiary thereof with respect of Hedge Agreements incurred to Equipment that is being acquired (by, and will be used in the ordinary course of business of, such Loan Party or Subsidiary (and providing protection any extension, renewal, or refinancing thereof), and (ii) Capitalized Lease Obligations incurred (for avoidance of doubt, other than pursuant to an Acquisition) by a Loan Party or Subsidiary thereof with respect to Equipment that is being acquired by, and will be used in the ordinary course of business of, such Loan Party or Subsidiary (and any extension, renewal, or refinancing thereof), in the cases of clauses (i) and (ii), in an aggregate principal outstanding amount for all Loan Parties and their Subsidiaries under this Section 11.1(d) not to exceed the product of (x) U.S.$1,500 multiplied by (y) the number of people (x) employed on a full-time basis by members of the Consolidated Group, and (y) employed by others, but who are working on a full-time equivalent basis on projects for the Consolidated Group, in each case as of the last day of the most recently ended Computation Period for which financial statements have been delivered (or were required to be delivered) to Administrative Agent under and in accordance with Section 10.1.2;
(e) (i) Permitted Earn-out Obligations, and (ii) Subordinated Debt (other than, for avoidance of doubt, any Earn-out Obligations) incurred after the Closing Date in an aggregate outstanding amount for all Loan Parties and their Subsidiaries not to exceed U.S.$2,000,000 at any time, so long as such Subordinated Debt is subject to a Subordination Agreement;
(f) unsecured Debt of any Loan Party (other than Intermediate Holdings) to any other Loan Party (other than Intermediate Holdings), as long as (i) such Debt is evidenced by the Master Intercompany Note and pledged and delivered to Administrative Agent pursuant to the Borrower Loan Documents as additional collateral security for the Obligations and its Subsidiaries against fluctuations (ii) the obligations under the Master Intercompany Note are subordinated to the Obligations of Borrowers hereunder on terms and in currency values a manner satisfactory to the Required Lenders, in their discretion (but which terms shall in any event permit payments to be made to any Loan Party so long as no Event of Default of the type described in Sections 13.1.1 or commodity prices 13.1.4 shall be continuing);
(g) unsecured Debt in respect of netting services and overdraft protections in connection with the Borrower’s Deposit Accounts, in an aggregate outstanding amount for all Loan Parties and their Subsidiaries under this Section 11.1(g) not to exceed U.S.$100,000 at any time;
(h) loans or advances to employees, officers or directors of any Loan Party or any of its Subsidiaries’ operations, in either case; provided that an aggregate outstanding amount for all Loan Parties and their Subsidiaries not to exceed U.S.$250,000 in any Fiscal Year, made in the ordinary course of business for travel and related expenses;
(i) Contingent Liabilities of a Loan Party consisting of guarantees of trade accounts payable of another Loan Party;
(j) unsecured Debt owed to any Person providing worker’s compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Loan Parties and their Subsidiaries incurred in connection with such Hedge Agreements are Person providing such benefits or insurance pursuant to customary reimbursement obligations to such Person;
(k) unsecured Hedging Obligations incurred for bona fide hedging activities purposes and are not entered into for speculative purposesspeculation with respect to risks arising in the ordinary course of Borrowers’ business, in an aggregate outstanding amount for all Loan Parties and their Subsidiaries under this Section 11.1(k) not to exceed U.S.$1,000,000 at any time;
(ivl) unsecured Debt in respect of performance, surety or appeal bonds provided in the ordinary course of business, but excluding (Ain each case) Debt owed incurred through the borrowing of money or Contingent Liabilities in respect thereof;
(m) unsecured, non-recourse Debt incurred by any Loan Party or Subsidiary thereof to finance the payment of insurance premiums of such Person, in an aggregate outstanding amount for all Loan Parties and their Subsidiaries under this Section 11.1(m) not to exceed U.S.$250,000 at any other Loan Party, time;
(Bn) Debt owed to described on Schedule 11.1, and any non-Debtor Subsidiary by any Loan Party and extension, renewal or refinancing thereof so long as the principal amount thereof is not increased; and
(Co) Debt owed by of any non-Debtor Excluded Foreign Subsidiary to any Loan Party in an aggregate amount not exceeding to exceed U.S.$1,000,000 in the amount of aggregate at any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, time outstanding as long as (xi) to the extent that the Administrative Agent requires that an intercompany loan such Debt is evidenced by a promissory note, such promissory note shall be in form the Master Intercompany Note and substance satisfactory pledged and delivered to Collateral Agent pursuant to the Administrative Agent, Loan Documents as additional collateral security for the Obligations and (yii) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder under the Master Intercompany Note are subordinated to the Obligations of such Borrowers hereunder on terms and in a manner satisfactory to the Required Lenders, in their discretion (but which terms shall in any event permit payments to be made to any Loan Party under this Agreement and so long as no Event of Default of the other Loan Documents and (z) each intercompany loan owed to a Loan Party type described in Sections 13.1.1 or 13.1.4 shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orderscontinuing);
(vp) other unsecured Debt secured by Liens permitted by Section 5.02(a)(iv) owed to any Person that is not an Affiliate of any Loan Party or Subsidiary thereof, in an aggregate outstanding amount for all Loan Parties and Capitalized Leases arising after the Closing Date their Subsidiaries not to exceed an aggregate principal amount equal to $2,500,000 U.S.$250,000 at any time outstanding;
(vi) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;time.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition in the case of the Borrower,
(A) Debt outstanding on in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or commodity pricing, in each case incurred in the Petition Date ordinary course of business and consistent with prudent business practice,
(B) Debt owed to a Loan Party; and
(C) Debt incurred by the Borrower (which may be guaranteed by the Guarantors) in connection with the issuance of unsecured senior notes (the “Permitted Senior Notes”); provided that (1) no Default or Event of Default shall have occurred and be continuing at the time of any such issuance or would be caused by such issuance, (2) the Borrower shall be in pro forma compliance with the financial covenants set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without Section 5.04 after giving effect to any extensions, renewals the incurrence of such Debt and replacements shall provide the Administrative Agent and Lenders with a pro forma compliance certificate evidencing such compliance at least 10 days (or such shorter period as may be agreed to by the Administrative Agent) in advance of any such Debt;Debt issuance, (3) such Debt shall rank no higher than pari passu with the Obligations, (4) the maturity of such Debt shall be at least six (6) months after the latest Termination Date, (5) the terms of such Debt may not restrict, limit or otherwise encumber the ability of the Borrower or any Subsidiary to grant Liens in favor of the Administrative Agent or any Lender under this Agreement or any other Loan Document, and (6) such Debt shall otherwise be issued on terms and conditions reasonably satisfactory to the Administrative Agent.
(ii) in the case of any Subsidiary of the Borrower, (a) with respect to any Subsidiary of the Borrower that is a Loan Party, Debt owed to the Borrower or to any other Loan Party and (b) with respect to any Subsidiary of the Borrower that is not a Loan Party, Debt owed to any other Subsidiary of the Borrower that is not a Loan Party; and
(iii) the Guaranties and, in the case of the Loan Parties and their Subsidiaries,
(A) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party So long as no Default has occurred and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant tois continuing, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed in the aggregate $10,000,000 at any time outstanding; provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (B) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (B) in the event that a Default has occurred and is continuing;
(C) Capitalized Leases (other than those permitted by clause (F) below) not to exceed in the aggregate $10,000,000 at any time outstanding, and in the case of Capitalized Leases to which any Subsidiary of a Loan Party is a party, Debt of the Loan Party of the type described in clause (j) of the definition of Debt guaranteeing the obligations of such Subsidiary under the Capitalized Leases permitted under this clause (C);
(D) Debt of any Person that becomes a Subsidiary of the Borrower after the Effective Date in accordance with the terms of Section 5.02(f) which Debt does not exceed $10,000,000 in the aggregate and is existing at the time such Person becomes a Subsidiary of the Borrower;
(E) So long as no Default has occurred and is continuing, other unsecured Debt of the Borrower in an aggregate principal amount equal not to exceed $2,500,000 10,000,000 at any one time outstanding; provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (E) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (E) in the event that a Default has occurred and is continuing;
(viF) endorsement the Surviving Debt set forth on Schedule 5.02(b), and any Debt extending the maturity of, or refunding or refinancing, in whole or in part, any Surviving Debt; provided that the terms of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are otherwise permitted by the Loan Documents; provided further that the principal amount of such Surviving Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing;
(G) Contingent obligations of the Loan Parties or any of their Subsidiaries in an amount not to exceed $10,000,000; provided that such contingent obligations are unsecured;
(H) Endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viiiI) Debt in respect of letters of credit in an aggregate amount not to exceed $10,000,000 at any bankers’ acceptancetime outstanding;
(J) Debt in respect of indemnification obligations in connection with bonds and letters of credit related to self insurance and insurance programs and policies of the Loan Parties and their respective Subsidiaries;
(K) Obligations in respect of the Borrower’s Non-Qualified Deferred Compensation Plan to the extent of assets of such plan are on the Borrower’s balance sheet;
(L) Guarantee obligations of the Guarantors in respect of Debt of the Borrower permitted pursuant to Section 5.02(b)(i)(C); and
(M) Permitted Convertible Indebtedness; provided, letter that (A) no Default or Event of creditDefault shall exist immediately before or immediately after giving effect thereto on a pro forma basis, warehouse receipt (B) the Borrower shall deliver to the Administrative Agent a certificate from a Responsible Officer, in form and detail reasonably satisfactory to the Administrative Agent, confirming the foregoing and demonstrating compliance with the financial covenants set forth in Section 5.04 after giving effect thereto on a pro forma basis, (C) such Debt is not at any time guaranteed by any Subsidiary that is not a Guarantor, (D) the terms thereof may not restrict, limit or similar facilities entered into otherwise encumber the ability of the Borrower or any Subsidiary to grant Liens in favor of the Administrative Agent or any Lender under this Agreement or any other Loan Document, and (E) no such Debt shall (x) have a scheduled maturity or require any regularly scheduled amortization payment to be made prior to the date that is 91 days after the Termination Date with respect to the Revolving A Credit Facility or (y) be subject to any mandatory redemption, mandatory repurchase or other mandatory prepayments of principal (including early conversion triggers) other than those that, in the ordinary course of business;Borrower’s good faith judgment, are customary for such Debt (it being understood that any mandatory redemption, mandatory repurchase or other mandatory prepayments contained in the 2021 Convertible Notes shall be deemed customary in the Borrower’s good faith judgment).
Appears in 1 contract
Samples: Credit Agreement (Cracker Barrel Old Country Store, Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iiiii) Debt in respect of Hedge Agreements incurred in the ordinary course case of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party, (B) Debt owed to Party or any nonwholly-Debtor owned Subsidiary by of any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi)Party, provided that, in each case, such Debt (xy) shall be on terms acceptable to the extent that the Administrative Agent requires that an intercompany loan is and (z) shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory unless payable to the Administrative Agent to Borrower) by their terms be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder subordinated to the Obligations of such the Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security Parties under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersLoan Documents;
(viii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt; 67
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsement endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt consisting of guaranty Obligations (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the ordinary course aggregate at any time outstanding 10% of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;a Default under Section 5.04.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition in the case of the Borrower,
(A) Debt outstanding in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or currency rates incurred in the ordinary course of business and consistent with prudent business practice, and
(B) Debt owed to, or guarantees in favor of, a wholly owned Subsidiary of the Borrower, which Debt, if such Subsidiary is a Loan Party, (x) shall be subordinated to the Obligations and (y) shall, in the case of intercompany advances, be evidenced by promissory notes pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement;
(ii) in the case of any Subsidiary of the Borrower
(A) which is a Loan Party, Debt owed to, or guarantees in favor of, the Borrower or to a wholly owned Subsidiary of the Borrower which is a Loan Party, provided that, in each case, such Debt shall, in the case of intercompany advances, be evidenced by promissory notes pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement, and
(B) which is not a Loan Party, (1) Debt owed to any Loan Party which is permitted by Section 5.02(f)(x) and (2) Debt used to finance working capital needs of such Subsidiary, provided that such Debt is not supported by a guarantee or collateral provided by a Loan Party and the aggregate amount of Debt permitted under this clause (B)(2) does not exceed $10,000,000; and
(iii) the Guaranties and, in the case of the Borrower and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) so long as no Default has occurred and is continuing, Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(C) Capitalized Leases not to exceed in the aggregate $20,000,000 at any time outstanding,
(D) Debt of any Person that becomes a Subsidiary of the Borrower after the date hereof in accordance with the terms of Section 5.02(f) which Debt does not exceed $10,000,000 in the aggregate, is existing at the time such Person becomes a Subsidiary of the Borrower and is not created in contemplation of or in connection with such Person becoming a Subsidiary of the Borrower,
(E) Debt under or in respect of the First Lien Senior Credit Facilities,
(F) Surviving Debt existing on the Petition Date date hereof and set forth in Schedule 4.01(r4.01(t) (including, without limitation, the Indebtedness under the Prepetition Loan Documents hereto and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;, provided that such extending, renewal or replacement Debt (1) shall not add guarantors, obligors or security from that which applied to the Debt being extended, renewed or replaced, (2) shall not be in principal amount that exceeds the principal amount of the Debt being extended, renewed or replaced (plus accrued interest and premium thereon), (3) shall not have an earlier maturity date or a decreased Weighted Average Life to Maturity than the Debt being extended, renewed or replaced, (4) shall be subordinated to the Obligations on the same terms (or, from the perspective of the Lenders, better terms), if any, as the Debt being extended, renewed or replaced and (5) shall not have terms relating to collateral (if any) or other material terms (taken as a whole) that are materially less favorable to the Loan Parties than the terms of the Debt being extended, renewed or replaced,
(iiG) Debt under owed to any Person providing workers' compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the Loan Documents;ordinary course of business,
(iii1) Debt of the Borrower or any Subsidiary of the Borrower in respect of Hedge Agreements incurred performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees and similar obligations, in each case provided in the ordinary course of business and providing protection to the Borrower (2) any refinancings, renewals and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount replacements of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders Debt pursuant to the Orders;preceding clause (1) that do not increase the outstanding principal amount thereof (plus accrued interest and premium in respect thereof),
(vI) Debt secured arising from the honoring by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding;
(vi) endorsement a bank or other financial institution of negotiable instruments for deposit or collection a check, draft or similar transactions instrument drawn against insufficient funds in the ordinary course of business;, provided that such Debt is extinguished within two Business Days of its incurrence,
(viiJ) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees arising from agreements of the Borrower and its Subsidiaries;or a Subsidiary of the Borrower providing for indemnification in connection with the disposition of any business, any assets or any Subsidiary of the Borrower, other than Guarantees of Debt incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition; and
(viiiK) So long as no Default has occurred and is continuing, other Debt of the Borrower in respect of an aggregate principal amount not to exceed $7,500,000 at any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;one time outstanding.
Appears in 1 contract
Debt. CreateBorrower shall not, incur, assume or suffer to exist, or and shall not permit any of its Subsidiaries to createto, incur, assume create or suffer to existexist any Debt, any Debt other than:
(i) Prepetition Debt outstanding on owed to the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such DebtLender;
(ii) Capital Leases and Debt under incurred to finance the Loan Documentsacquisition, construction or improvement of any equipment or capital assets in an aggregate principal amount not to exceed $200,000,000 at any time outstanding;
(iii) obligations (contingent or otherwise) existing or arising under any Hedge Agreement, provided that if such obligations are not with the Lender or any of its Affiliates, (x) such obligations are (or were) entered into by such Loan Party in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates and (y) such Hedge Agreement does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(iv) to the extent constituting Debt, investments permitted under Section 6.02(e), including intercompany Debt in respect of Hedge Agreements the Borrower and the Subsidiaries to the extent permitted by Section 6.02(e); provided that any such Debt that is owed by a Loan Party to a Subsidiary that is not a Loan Party is subordinated to the Obligations on the terms satisfactory to the Lender;
(v) Cash Management Obligations, provided that if such Cash Management Obligations are not with the Lender or any of its Affiliates, to the extent incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are a manner not entered into for speculative purposes;
(iv) (A) Debt owed prohibited by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstandingAgreement;
(vi) endorsement Debt existing on the date of negotiable instruments for deposit this AgreementAmendment No. 4 Effective Date and set forth on Schedule 6.02(b) to the Disclosure Letter, together with any Permitted Refinancing;
(vii) Debt assumed in connection with a Permitted Acquisition, so long as such Debt (A) does not exceed $5,000,00010,000,000 in the aggregate at any time outstanding and (B) was not incurred in contemplation of such Permitted Acquisition;
(viii) Debt under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or collection or similar transactions with respect to workers’ compensation claims, in each case incurred in the ordinary course of business;
(viiix) Guaranties with respect to Debt permitted by this Section;
(x) Debt consisting in respect of guaranty Obligations letters of credit or bankers’ acceptances supporting facility leases in an aggregate principal or face amount not exceeding $5,000,000 at any time;
(xi) Debt secured by Liens permitted by Sections 6.02(a)(iii), (iv), (vii), (viii) , (x), (xi), and (xiii);
(xii) Debt of the Borrower or any of its Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn by the Borrower or such Subsidiary in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiariesagainst insufficient funds;
(viiixiii) Debt in the form of earn-outs in respect of any bankers’ acceptancePermitted Acquisition or any other investments permitted by Section 6.02(e) and Debt which may be deemed to exist in connection with agreements providing for indemnification, letter purchase price adjustments and similar obligations or guarantees, in each case incurred or assumed in connection with the acquisition or disposition of credit, warehouse receipt or similar facilities entered into any assets permitted by this Agreement;
(xiv) Debt owing to any insurance company in connection with the financing of any insurance premiums permitted by such insurance company in the ordinary course of business;
(xv) unsecured Debt constituting, including Convertible Debt Securities of the Borrower, not otherwise permitted pursuant to this Section, in an aggregate principal amount not to exceed the greater of (x) $350,000,000 and (y) immediately after giving pro forma effect to the incurrence of such Debt, an amount that would not cause the Total Leverage Ratio (calculated to include the proposed Debt contemplated under this Section 6.02(b)(xv)) to exceed 6.00 to 1.00 (based on the financial statements for the most recent fiscal quarter end for which financial statements have been provided), which may be incurred on a one-time basis (and which may be refinanced pursuant to a Permitted Refinancing)provided that, in each case, that complies with each of clauses (A)-(F) below; provided that (A) immediately after giving effect to the incurrence of such Debt, the Borrower shall be in compliance with the financial covenants set forth in Section 6.03, on a pro forma basis (based on the financial statements for the most recent fiscal quarter end for which financial statements have been provided), (B) the final maturity of such Debt shall not be prior to the date that is one-hundred eighty (180) days after the Maturity Date, (C) such Debt will not have mandatory prepayment, amortization, redemption, sinking fund or similar prepayments (other than asset sale, casualty, condemnation, nationalization or extraordinary receipts events, change of control, fundamental change, make-whole fundamental change or similar event risk provisions providing for mandatory offers to repurchase customary for debt securities, and, for the avoidance of doubt, any Net Share Settlement provisions) prior to the date that is one-hundred eighty (180) days after the Maturity Date at the time of the issuance of such Debt, (D) such Debt is not guaranteed by any Subsidiary that has not guaranteed the Obligations, (E) the covenants, events of default and other terms of such Debt, taken as a whole, are not more restrictive on Borrower and its Subsidiaries than the terms of the Loan Documents, taken as a whole (as determined in good faith by Borrower, it being understood that (1) customary repurchase or redemption obligations described in the parenthetical to clause (C) above and (2) customary additional interest provisions for failure to file required reports or additional interest in lieu of customary events of default, in each case shall not be more restrictive), and (F) no Event of Default shall have occurred and be continuing or result from the incurrence of such Debt;
Appears in 1 contract
Samples: Credit Agreement (Box Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other than:
(i) Prepetition Debt outstanding on in the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, case of the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;Parent Borrower,
(ii) Debt under the Loan Documents;
(iiiA) Debt in respect of Hedge Agreements with one or more Secured Parties designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection consistent with prudent business practice with the Borrower’s or aggregate Agreement Value thereof not to exceed $1,000,000 at any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;time outstanding,
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Subordinated Debt owed in an aggregate amount not to exceed $20,000,000 at any non-Debtor Subsidiary by time outstanding issued or incurred to finance, in whole or in part, any acquisition under Section 5.02(f)(viii) which Debt has been issued to the seller of the company or business being acquired at the time of such acquisition; PROVIDED, HOWEVER, that such Debt shall be subordinated to the Obligations of the Loan Party Parties under the Loan Documents on terms and conditions satisfactory to the Required Lenders,
(C) Debt owed by any non-Debtor to a wholly owned Subsidiary to any Loan Party in an amount not exceeding of the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(viParent Borrower (other than the Sub Borrower), provided that, so long as no Default shall have occurred and be continuing at the time of issuance or incurrence of such Debt or would result therefrom and which Debt (x) shall, in the case of Debt owed to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory noteLoan Party, such promissory note shall be in form and substance satisfactory to the Administrative Agentconstitute Pledged Debt, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject on terms acceptable to subordination provisions the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent to be contained and such promissory notes, in the respective intercompany notecase of Debt owed to a Loan Party, subordinating the obligations of such Loan Party thereunder to shall be pledged as security for the Obligations of the holder thereof under the Loan Documents and delivered to the Administrative Agent pursuant to the terms of the Security Agreement,
(D) Debt under the Senior Notes Indenture in an aggregate principal amount not to exceed $180,000,000 in original issue amount, and
(E) unsecured Debt incurred in the ordinary course of business and aggregating not more than $5,000,000 at any one time outstanding,
(ii) in the case of the Parent Borrower's Subsidiaries,
(A) in the case of the Specified Subsidiaries, Debt owed to the Sub Borrower; PROVIDED that, in each case, such Debt (w) shall constitute Pledged Debt, (x) shall be on terms acceptable to the Administrative Agent, (y) shall be evidenced by promissory notes in substantially the form of Exhibit I-1 hereto, such promissory notes shall be secured by the personal property, and such other property as the Administrative Agent shall require from time to time, of the makers thereof and such promissory notes shall be pledged as security for the Obligations of the Sub Borrower under the Loan Party under this Documents and delivered to the Administrative Agent pursuant to the terms of the Security Agreement and the other Loan Documents Section 5.01(o) and (z) the Obligations of the Specified Subsidiaries under such promissory notes shall be guaranteed by the Foreign Guarantors pursuant to the Foreign Guaranty, PROVIDED FURTHER, HOWEVER, that no such Debt may be incurred by any such Specified Subsidiary unless and until the requirements of Section 5.01(q) and of clauses (w) through (z) above, in each intercompany loan case relating to such Specified Subsidiary, shall, in the judgment of the Administrative Agent, have been satisfied, and
(B) in the case of any of the Subsidiaries of the Parent Borrower (other than the Sub Borrower and any Excluded Subsidiary), Debt owed to a Loan Party the Parent Borrower; PROVIDED that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall be pledged by that Loan Party as security under the Collateral Documents and will be subject on terms acceptable to a perfected Lien granted in favor of the Administrative Agent and (z) shall be evidenced by promissory notes in substantially the Lenders form of Exhibit I-2 hereto or otherwise in form and substance satisfactory to the Administrative Agent and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents and delivered to the Administrative Agent pursuant to the Orders;terms of the Security Agreement and Section 5.01(o),
(viii) in the case of the Parent Borrower and its Subsidiaries (other than the Sub Borrower and the Excluded Subsidiaries),
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section 5.02(a)(iv5.02(a)(iii) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 5,000,000 at any time outstanding;,
(viC) endorsement Debt consisting of Capitalized Leases not to exceed in the aggregate at any time outstanding the sum of (1) $5,000,000 and (2) an amount equal to the amount by which the aggregate Working Capital Commitments in effect immediately prior to giving effect to the incurrence of such Debt pursuant to this subclause (2) exceeds $20,000,000, PROVIDED, HOWEVER, that immediately upon the incurrence of any Debt pursuant to this subclause (2), an amount equal to the amount of such Debt shall be applied to prepay the Advances pursuant to Section 2.06(b)(i) and the Facilities shall be permanently reduced by the amount of such Debt pursuant to Section 2.05(b)(i),
(D) the Surviving Debt, and any Debt extending the maturity of, or refunding or refinancing, in whole or in part, any Surviving Debt; PROVIDED that the terms of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are on substantially the same terms as the Debt being extended, refunded or refinanced otherwise permitted by the Loan Documents; and PROVIDED FURTHER that the principal amount of such Surviving Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing, and
(E) indorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;, and
(viiiv) in the case of the Sub Borrower,
(A) Debt consisting of guaranty Obligations in under the ordinary course of business of the obligations of suppliersLoan Documents, customers, franchisees and licensees of the Borrower and its Subsidiaries;and
(viiiB) Debt in respect indorsement of any bankers’ acceptance, letter of credit, warehouse receipt negotiable instruments for deposit or collection or similar facilities entered into transactions in the ordinary course of business;.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any Subsidiary of its Subsidiaries Parent to create, incur, assume or suffer to exist, any Debt Debt, except prior to the initial Borrowings on the Closing Date (x) to the extent permitted under Section 7.02 of the Existing Parent Credit Agreement (as in effect on the date hereof) or (y) any other thantransaction to the extent the restriction of such transaction by this Agreement is prohibited by Section 7.17 of the Existing Parent Credit Agreement (as in effect on the date hereof), and from and after the Closing Date except:
(ia) Prepetition Debt outstanding on in the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements case of any such Debt;
Loan Party, (ii) Debt under the Loan Documents;
(iiii) Debt in respect of Hedge Agreements required to be maintained pursuant to Section 6.15, and such other Hedge Agreements entered into to hedge against fluctuations in interest rates or foreign exchange rates and the price of metals incurred in the ordinary course of business and providing protection to the Borrower consistent with prudent business practice, and its Subsidiaries against fluctuations (ii) Debt in currency values or commodity prices in connection with the Borrower’s respect of any Existing Letter of Credit or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) Bank Guarantee to the extent that the Administrative Agent requires that an intercompany loan a Letter of Credit has been issued and is evidenced by a promissory note, outstanding hereunder to support such promissory note shall be Loan Party’s reimbursement obligation in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations respect of such Loan Party thereunder to the Obligations Existing Letter of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersCredit or Bank Guarantee;
(vb) Debt constituting Intercompany Loans to the extent permitted by Section 7.06(f) or other Intercompany Debt otherwise permitted by Section 7.06;
(c) in the case of Parent and its Subsidiaries,
(i) Debt under the Loan Documents,
(ii) Debt secured by Liens permitted by Section 5.02(a)(iv7.01(d) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 100,000,000 at any time outstanding;,
(viiii) endorsement of negotiable instruments for deposit or collection or similar transactions unsecured trade payables not overdue by more than 60 days incurred in the ordinary course of business;,
(viiiv) Debt consisting of guaranty Obligations under Capitalized Leases, as determined in the ordinary course of business of the obligations of suppliersaccordance with GAAP, customers, franchisees and licensees of the Borrower and its Subsidiaries;in an aggregate amount not to exceed $50,000,000 at any time outstanding; and
(viiiv) Debt in respect of letters of credit or Bank Guarantees (other than those issued pursuant to this Agreement) in an aggregate amount not to exceed $200,000,000 outstanding at any bankers’ acceptancetime;
(d) Surviving Debt outstanding on the Closing Date without any extension, letter renewal or refinancing thereof, other than Permitted Refinancing Debt incurred in respect of creditany such Surviving Debt , warehouse receipt provided that the aggregate principal amount of Debt under this clause (d) shall not exceed the $370,000,000;
(e) unsecured Debt of Parent, so long as (A) such Debt does not mature until at least six months after the Maturity Date in respect of the Term B Facility and has no scheduled amortization prior to that date, (B) after giving effect to the incurrence of such Debt, Parent shall be in pro forma compliance with the financial covenants set forth in Section 6.18, (C) at the time of incurrence of such Debt and after giving effect thereto, no Default or similar facilities entered into Event of Default shall have occurred or be continuing and (D) the documentation governing such Debt contains customary market terms reasonably satisfactory to the Administrative Agent, including, without limitation, if such Debt is subordinated Debt, provisions subordinating such Debt to the Obligations of the Loan Parties under the Loan Documents;
(f) Closing Date Preferred Equity issued by Parent in an aggregate principal amount outstanding not to exceed $450,000,000;
(g) Debt of Foreign Subsidiaries under lines of credit to any such Foreign Subsidiary from Persons other than Parent or any of its Subsidiaries, the proceeds of which Debt are used for such Foreign Subsidiary’s working capital and other general corporate purposes, provided that the aggregate principal amount of all such Debt outstanding at any time for all such Foreign Subsidiaries shall not exceed $200,000,000;
(h) unsecured Debt of Parent consisting of unsecured guarantees by Parent of obligations (which guaranteed obligations do not themselves constitute Debt) of one or more Wholly-Owned Subsidiaries of Parent;
(i) unsecured Debt of Parent evidenced by a guaranty of the Debt or other obligations of any other Person (including Debt of Foreign Subsidiaries permitted pursuant to clause (g) above), so long as at the time of such incurrence of Debt, after giving pro forma effect to such incurrence, Parent shall be in pro forma compliance with all financial covenants set forth in Section 6.18;
(j) Debt of Parent under the Shareholder Subordinated Notes issued after the Effective Date in connection with a redemption or repurchase of common stock of Parent pursuant to Section 7.07(a);
(k) unsecured Debt of the Purchaser consisting of Loan Notes (as defined in the ordinary course Press Release on the date hereof) and any unsecured guaranty of business;such Debt by Parent; and
(l) Debt of Parent and its Subsidiaries in an aggregate amount not to exceed $100,000,000 at any time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Colfax CORP)
Debt. Create, incur, assume or suffer to exist, or permit any ---- of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other than:
(i) Prepetition in the case of the Borrower,
(A) Debt under the Synthetic Lease Documents in a principal amount outstanding not to exceed the principal amount outstanding on the Petition Date and set forth in Schedule 4.01(rClosing Date,
(B) (includingx) the Secured Hedge Agreements between the Borrower and BNP Paribas and between the Borrower and Union Bank of California, without limitationN.A. and (y) other Hedge Agreements whose purpose is to hedge against fluctuations in interest rates and are entered into by the Borrower in the ordinary course of business, consistent with prudent business practice and not entered into for speculative purposes; provided that the Indebtedness under aggregate notional amount of such Secured Hedge Agreements and other Hedge Agreements shall not exceed $100,000,000 at any time outstanding, and
(C) Debt owed to a wholly-owned Domestic Subsidiary of the Prepetition Borrower that is a Loan Documents and Party; provided that such Debt -------- is evidenced by a promissory note that has been pledged to the Senior Subordinated Notes) without giving effect Administrative Agent pursuant to any extensions, renewals and replacements of any such Debt;the Security Agreement.
(ii) in the case of any wholly-owned Domestic Subsidiary of the Borrower that is a Loan Party, Debt owed to the Borrower or to another wholly-owned Domestic Subsidiary of the Borrower that is a Loan Party so long as such Debt is evidenced by a promissory note that has been pledged to the Administrative Agent pursuant to the Security Agreement; and
(iii) in the case of the Borrower and any of its Subsidiaries,
(A) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv6.02(a)(v) and Capitalized Leases arising after the Closing Date (vi) not to exceed an in the aggregate the amounts set forth in such Sections,
(C) the Surviving Debt, and any Debt issued in exchange for, or the net proceeds of which are used to refinance, all or a part of the Surviving Debt; provided, however, that the -------- ------- principal amount equal to $2,500,000 at any time outstanding;of such refinancing Debt does not exceed the principal amount, plus accrued interest (if any), of the Surviving Debt so refinanced,
(viD) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;,
(viiE) unsecured Debt consisting of guaranty Obligations the Borrower in respect of its daily overdraft facility but only to the extent such Debt (1) is incurred in the ordinary course of the Borrower's business consistent with past practices (2) does not exceed $7,500,000 in principal amount at any time outstanding, and (3) is repaid in full within 3 Business Days of the obligations incurrence of supplierssuch Debt, customers, franchisees and licensees and
(F) other unsecured Debt (other than Debt owed to Casino) of the Borrower and its Subsidiaries;
(viii) Debt Subsidiaries in respect of an aggregate principal amount at any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;time outstanding not to exceed $10,000,000.
Appears in 1 contract
Debt. Create, incur, assume or suffer to existassume, permit, guarantee, or permit otherwise become or remain, directly or indirectly, liable with respect to any of its Subsidiaries to createDebt, incur, assume or suffer to exist, any Debt other thanexcept:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(iia) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersDocuments;
(vb) Debt secured incurred by Liens permitted by any Loan Party, provided that at the time of incurrence of such Debt and after giving pro-forma effect thereto, the Borrower would be in compliance with Section 5.02(a)(iv) 6.13 and Capitalized Leases arising after so long as no Unmatured Event of Default or Event of Default has occurred and is continuing at the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstandingof such incurrence;
(vic) Contingent Obligations resulting from the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viid) Debt consisting of guaranty Obligations (i) any Subsidiary to Borrower or to any Guarantor, (ii) Borrower or any Guarantor to any other Borrower or any Guarantor, or (iii) any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party;
(e) Debt which may be deemed to exist pursuant to any performance bonds, surety bonds, statutory bonds, appeal bonds or similar obligations incurred in the ordinary course of business;
(f) Debt in respect of netting services, overdraft protections and otherwise in connection with deposit accounts incurred in the ordinary course of business;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower Loan Parties and its their Subsidiaries;
(viiih) Debt of a Loan Party or any of its Subsidiaries under any Hedging Agreement so long as such Hedging Agreements are used solely as a part of its normal business operations as a risk management strategy or hedge against changes resulting from market operations and not as a means to speculate for investment purposes on trends and shifts in financial or commodities markets;
(i) Debt of any Loan Party under Back-to-Back Lending Facilities, in an aggregate principal amount not to exceed $50,000,000;
(j) Debt incurred in the ordinary course of business under incentive, non-compete, consulting, deferred compensation, or other similar arrangements incurred by any Loan Party;
(k) Debt incurred in the ordinary course of business with respect to the financing of insurance premiums;
(l) Debt in respect of taxes, assessments or governmental charges to the extent that payment thereof shall not at the time be required to be made hereunder; and
(m) other Debt of the Subsidiaries (other than any bankers’ acceptanceLoan Party) in an aggregate principal amount for all such Subsidiaries not to exceed $40,000,000 at any one time and so long as no Unmatured Event of Default or Event of Default has occurred and is continuing at the time of incurrence of any such other Debt;
(n) Debt (not to exceed $200,000,000 for all such Foreign Subsidiaries at any one time) incurred by any Foreign Subsidiary in connection with, letter or otherwise to finance (directly or indirectly) any Investment made to comply with any regulatory requirements (including, without limitation, risk retention requirements) provided that any such Debt is non-recourse to the Borrower or any Loan Party (provided, no Subsidiary other than a Foreign Subsidiary shall be liable for such Debt except to the extent such Debt is permitted pursuant to clause (m) above);
(o) guaranties by Loan Parties or other Subsidiaries in respect of credit, warehouse receipt or similar facilities entered into real estate lease obligations incurred in the ordinary course of business;; and
(p) Purchase Money Debt.
Appears in 1 contract
Samples: Amendment No. 4 (Ares Management Lp)
Debt. Create, incur, assume or suffer to existassume, permit, guarantee, or permit otherwise become or remain, directly or indirectly, liable with respect to any of its Subsidiaries to createDebt, incur, assume or suffer to exist, any Debt other thanexcept:
(ia) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents evidenced by this Agreement and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the other Loan Documents;
(iiib) Debt incurred by any Loan Party, provided that at the time of incurrence of such Debt and after giving pro-forma effect thereto, the Borrower would be in respect compliance with Section 6.13 and so long as no Unmatured Event of Hedge Agreements Default or Event of Default has occurred and is continuing at the time of such incurrence, provided further, that the Loan Parties shall cause any Debt incurred pursuant to this clause (b) and owed to any Subsidiary or any other Subordinated Creditor (as defined in the Intercompany Subordination Agreement) to be subordinated to the Loans on substantially the same terms as set forth in the Intercompany Subordination Agreement;
(c) Contingent Obligations resulting from the endorsement of instruments for collection in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposesbusiness;
(iv) (Ad) Debt owed by of (i) any Subsidiary to a Loan Party, (ii) any Loan Party to any other Loan Party, (Biii) Debt owed to any non-Debtor Restricted Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor any other Restricted Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by or (iv) any Subsidiary that is not a Restricted Subsidiary of a Loan Party as security under the Collateral Documents and will be subject to any other Subsidiary that is not a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersLoan Party;
(ve) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not which may be deemed to exceed an aggregate principal amount equal exist pursuant to $2,500,000 at any time outstanding;
(vi) endorsement of negotiable instruments for deposit or collection performance bonds, surety bonds, statutory bonds, appeal bonds or similar transactions obligations incurred in the ordinary course of business;
(viif) Debt consisting in respect of guaranty Obligations netting services, overdraft protections and otherwise in connection with deposit accounts incurred in the ordinary course of business;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower Loan Parties and its their Subsidiaries;
(viiih) Debt of a Loan Party or any of its Subsidiaries under any Hedging Agreement so long as such Hedging Agreements are used solely as a part of its normal business operations as a risk management strategy or hedge against changes resulting from market operations and not as a means to speculate for investment purposes on trends and shifts in financial or commodities markets;
(i) Debt of any Loan Party or Subsidiary under Back-to-Back Lending Facilities, in an aggregate principal amount not to exceed $50,000,000;
(j) Debt incurred in the ordinary course of business under incentive, non-compete, consulting, deferred compensation, or other similar arrangements incurred by any Loan Party or Subsidiary;
(k) Debt incurred in the ordinary course of business with respect to the financing of insurance premiums;
(l) Debt in respect of taxes, assessments or governmental charges to the extent that payment thereof shall not at the time be required to be made hereunder; and
(m) other Debt of the Subsidiaries (other than any bankers’ acceptanceLoan Party) in an aggregate principal amount for all such Subsidiaries not to exceed $40,000,000 at any one time and so long as no Unmatured Event of Default or Event of Default has occurred and is continuing at the time of incurrence of any such other Debt;
(n) Debt incurred by any CLO Management Subsidiary in connection with, letter or otherwise to finance (directly or indirectly) any Investment made to comply with any regulatory requirements (including, without limitation, risk retention requirements) provided that any such Debt is non-recourse to any Loan Party or any Restricted Subsidiary (provided, that an Unrestricted Subsidiary shall only be liable for such Debt to the extent such Debt is permitted pursuant to clause (p) of credit, warehouse receipt this Section 6.1);
(o) guaranties by Loan Parties or similar facilities entered into other Subsidiaries in respect of real estate lease obligations incurred in the ordinary course of business;
(p) Debt (not to exceed $300,000,000 at any one time) incurred by any Unrestricted Subsidiary provided that any such Debt is non-recourse to any Loan Party or any Restricted Subsidiary (provided, that a CLO Management Subsidiary shall only be liable for such Debt to the extent such Debt is permitted pursuant to clause (n) of this Section 6.1); and
Appears in 1 contract
Samples: Amendment No. 6 (Ares Management Lp)
Debt. CreateBorrower will not incur, incurcreate, assume or suffer permit to exist, or and will not permit any of its Subsidiaries Subsidiary to incur, create, incur, assume or suffer permit to exist, any Debt other than:
Debt, except (ia) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan PartyObligations, (Bb) purchase money Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed Lease Obligations in an aggregate principal amount equal to which does not exceed $2,500,000 250,000 outstanding (or, in the case of the SPEs, such amounts as may be set forth in the applicable SPE Mortgage Debt documents) at any time outstanding;
time, (vic) Debt arising from the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
, (viid) Debt consisting of guaranty Obligations in the ordinary course of business of the owed by (i) one Credit Party to another Credit Party or (ii) any Subsidiary to Borrower, (e) obligations of suppliersany Credit Party for taxes, customersassessments or other governmental charges which are (i) not at the time delinquent or thereafter payable without penalty or (ii) being contested in good faith by appropriate proceedings and, franchisees and licensees in each case, for which such Credit Party maintains adequate reserves in accordance with GAAP, (f) the SPE Mortgage Debt, (g) Debt arising from one or more judgments which do not, in themselves, give rise to an Event of Default, provided such judgments are satisfied or stayed within thirty (30) days of their rendering, (h) Debt set forth on Schedule 9.1, (i) Debt arising under Rate Management Transactions so long as entered into for bona fide hedging of liabilities of the Borrower and its Subsidiaries;
Subsidiaries and not for speculative purposes, and (viiij) unsecured Debt in respect of Borrower or any bankers’ acceptanceof its Subsidiaries to the extent not permitted by any of the foregoing clauses, letter provided that the aggregate outstanding principal amount of creditall such Debt pursuant to this clause (j) does not exceed $250,000 at any time (or, warehouse receipt or similar facilities entered into in the ordinary course case of business;the SPEs, such amounts as may be set forth in the applicable SPE Mortgage Debt documents).
Appears in 1 contract
Debt. CreateBorrower shall not, incur, assume or suffer to exist, or and shall not permit any of its Subsidiaries to Guarantor to, create, incur, assume assume, suffer or suffer permit to exist, exist any Debt other than:
except (i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (includingBorrower's Obligations, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
Guarantor's Obligations, (iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operationsPermitted Senior Debt, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) the Debt owed by of Borrower to a Guarantor or the debt of any Loan Party Guarantor to Borrower or any other Loan Party, (BGuarantor arising after the date hereof pursuant to loans permitted by Congress Agent under Section 9.10(g) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
Congress Loan Agreement, (v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding;
(vi) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;business under interest rate protection agreements which is either (A) unsecured Debt or (B) Debt to Congress Agent, Congress Lenders or any of their Affiliates which is secured by the Congress Liens, but as to which additional Congress Reserves are actually established and maintained pursuant to, and in accordance with, Section 1.117(xx) of the Congress Loan Agreement (as in effect as of the date of this Loan Agreement), (vi) unsecured Debt arising after the date hereof in the ordinary course of business pursuant to guarantees in favor of third parties by Borrower or any Guarantor of the obligations of its customers under leases of real property from such third parties to such customers, provided that the maximum aggregate amount that the Obligors may be required to pay pursuant to all such guarantees in any fiscal year shall not exceed $2,500,000, (vii) unsecured Debt arising after the date hereof to any third person not to exceed in the aggregate $2,500,000, (viii) Debt arising after the date hereof issued in exchange for, or the proceeds of which are used to extend, refinance, replace or substitute Permitted Purchase Money Debt, (ix) Debt, existing as of the date hereof, which consists of unsecured obligations to pay the deferred purchase price of property or services and which is set forth on Schedule 7.1 attached hereto and (x) other unsecured Debt, existing as of the date hereof, which is set forth on Schedule 7.1 attached hereto.
Appears in 1 contract
Samples: Loan Agreement (Spartan Stores Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition in the case of the Borrowers, Debt outstanding owed to a wholly owned Subsidiary of such Borrower, which Debt (x) shall constitute Pledged Debt, (y) shall be on subordinated terms acceptable to the Petition Date Administrative Agent and set forth (z) shall be evidenced by promissory notes in Schedule 4.01(r) (including, without limitation, form and substance satisfactory to the Indebtedness Administrative Agent and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Prepetition Loan Documents to which such holder is a party and delivered to the Senior Subordinated NotesCollateral Agent pursuant to the terms of the Security Agreement, and
(ii) without giving effect to any extensions, renewals and replacements in the case of any Subsidiary of the Borrowers, Debt owed to a Borrower or to a wholly owned Subsidiary of a Borrower, provided that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall be on terms acceptable to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement; and
(iii) in the case of any Loan Party and its Subsidiaries:
(A) Debt in respect of either Secured Hedge Agreements or unsecured Hedge Agreements designed to hedge against fluctuations in interest rates and foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practice (as determined by Ceradyne in its reasonable business judgment);
(iiB) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant toso long as no Default has occurred or is continuing, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 10,000,000 at any time outstanding;
(viD) endorsement of negotiable instruments for deposit or collection or similar transactions Capitalized Leases not to exceed in the ordinary course of businessaggregate $15,000,000 at any time outstanding;
(viiE) so long as no Default has occurred or is continuing, Debt of any Person that becomes a Subsidiary of a Loan Party after the date hereof in accordance with the terms of Section 5.02(f) which Debt does not exceed $5,000,000 in the aggregate and is existing at the time such Person becomes a Subsidiary of such Loan Party (other than Debt incurred solely in contemplation of such Person becoming a Subsidiary of such Loan Party);
(F) performance guarantees in respect of obligations of any Loan Party;
(G) Unsecured Debt consisting of the deferred purchase price of acquisitions permitted hereunder (including any portion of such purchase price determined after the closing of the relevant acquisition), provided that all of such Debt shall not exceed $10,000,000 in the aggregate;
(H) so long as no Default has occurred and is continuing, other secured Debt of the Loan Parties in an aggregate principal amount not to exceed $3,000,000;
(I) Subordinated Debt; provided that in the case of each issuance of Subordinated Debt, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Debt, (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower will be in compliance with the financial covenants specified in Section 5.04 of this Agreement on a pro forma basis through the Termination Date for the Term Facility after giving effect to the issuance of any such Subordinated Debt, and (iii) the Borrower shall have complied with the requirements of Section 2.06(b)(ii);
(J) Debt consisting of guaranty Obligations Capitalized Leases entered into pursuant to Permitted Sale and Lease-back Arrangements; and
(K) so long as no Default has occurred and is continuing, other unsecured Debt in an aggregate amount not to exceed $10,000,000; provided, that, notwithstanding the ordinary course foregoing, the aggregate amount of business all Debt of Subsidiaries of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;Loan Parties that are not Guarantors hereunder shall at no time exceed $5,000,000.
Appears in 1 contract
Samples: Credit Agreement (Ceradyne Inc)
Debt. Create, incur, assume or suffer to existassume, permit, guarantee, or permit otherwise become or remain, directly or indirectly, liable with respect to any of its Subsidiaries to createDebt, incur, assume or suffer to exist, any Debt other thanexcept:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(iia) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersDocuments;
(vb) Debt secured incurred by Liens permitted by any Loan Party, provided that at the time of incurrence of such Debt and after giving pro-forma effect thereto, the Borrower would be in compliance with Section 5.02(a)(iv) 6.13 and Capitalized Leases arising after so long as no Unmatured Event of Default or Event of Default has occurred and is continuing at the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstandingof such incurrence;
(vic) Contingent Obligations resulting from the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viid) Debt consisting of guaranty Obligations (i) any Subsidiary to Borrower or to any Guarantor, (ii) Borrower or any Guarantor to any other Borrower or any Guarantor, or (iii) any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party;
(e) Debt which may be deemed to exist pursuant to any performance bonds, surety bonds, statutory bonds, appeal bonds or similar obligations incurred in the ordinary course of business;
(f) Debt in respect of netting services, overdraft protections and otherwise in connection with deposit accounts incurred in the ordinary course of business;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower Loan Parties and its their Subsidiaries;
(viiih) Debt of a Loan Party or any of its Subsidiaries under any Hedging Agreement so long as such Hedging Agreements are used solely as a part of its normal business operations as a risk management strategy or hedge against changes resulting from market operations and not as a means to speculate for investment purposes on trends and shifts in financial or commodities markets;
(i) Debt of any Loan Party under Back-to-Back Lending Facilities, in an aggregate principal amount not to exceed $50,000,000;
(j) Debt incurred in the ordinary course of business under incentive, non-compete, consulting, deferred compensation, or other similar arrangements incurred by any Loan Party;
(k) Debt incurred in the ordinary course of business with respect to the financing of insurance premiums;
(l) Debt in respect of taxes, assessments or governmental charges to the extent that payment thereof shall not at the time be required to be made hereunder; and
(m) other Debt of the Subsidiaries (other than any bankers’ acceptanceLoan Party) in an aggregate principal amount for all such Subsidiaries not to exceed $40,000,000 at any one time and so long as no Unmatured Event of Default or Event of Default has occurred and is continuing at the time of incurrence of any such other Debt;
(n) Debt (not to exceed $200,000,000 for all such Foreign Subsidiaries at any one time) incurred by any Foreign Subsidiary in connection with, letter or otherwise to finance (directly or indirectly) any Investment made to comply with any regulatory requirements (including, without limitation, risk retention requirements) provided that any such Debt is non-recourse to the Borrower or any Loan Party (provided, no Subsidiary other than a Foreign Subsidiary shall be liable for such Debt except to the extent such Debt is permitted pursuant to clause (m) above);
(o) guaranties by Loan Parties or other Subsidiaries in respect of credit, warehouse receipt or similar facilities entered into real estate lease obligations incurred in the ordinary course of business;; and
Appears in 1 contract
Debt. CreateNo Loan Party shall incur or maintain any Debt, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other than:
(ia) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such DebtObligations;
(iib) Debt under the Loan Documents[Reserved];
(iiic) Debt (i) in respect of Hedge Agreements incurred Capital Leases and purchase money obligations for fixed or capital assets or (ii) of any Person acquired in the ordinary course of business and providing protection a Permitted Acquisition (so long as such Debt (A) existed prior to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s acquisition of such Person by a Loan Party or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party is not created in contemplation of such acquisition and (C) Debt owed by any non-Debtor Subsidiary to is solely the obligation of such Person, and not of any Loan Party or any other Subsidiary), which in the case of each of clauses (i) and (ii) may be secured by Liens under and within the applicable limitations set forth in clause (i) of the definition of Permitted Lien; provided, however, that the aggregate amount of all such Debt at any one time outstanding pursuant to this clause (c) shall not exceed the greater of (i) $10,000,000 and (ii) 2.50% of the consolidated total assets of the Loan Parties and their Subsidiaries;
(d) Debt incurred under sale and leaseback transactions permitted under Section 10.11;
(e) Debt secured by Real Estate and Equipment and/or proceeds thereof in an aggregate principal amount at any time outstanding not exceeding to exceed $10,000,000;
(f) Permitted Subordinated Debt;
(g) Debt incurred under the Term Loan Facility in an aggregate principal amount at any time outstanding not to exceed the sum of (i) $250,000,000, (ii) incremental facilities provided, that the principal amount of such incremental facilities do not exceed $50,000,000; and any Investment made pursuant toRefinancing Notes, Permitted Debt Exchange Notes or Credit Agreement Refinancing Indebtedness (each as defined in the Term Loan Agreement) issued in respect of any such Debt, and permitted underin each case, Section 5.02(e)(vi)unless unsecured, provided that, (x) subject to the extent that terms and conditions of the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance Intercreditor Agreement (or other intercreditor agreement reasonably satisfactory to the Administrative Agent);
(h) [Reserved];
(i) unsecured Debt outstanding under the PBGC Note in an aggregate principal amount at any time outstanding not to exceed $900,000;
(j) [Reserved];
(k) Debt outstanding on the Closing Date and set forth on Schedule 8.8;
(l) Debt of any Parent or any of its Subsidiary owing to a Parent any other Subsidiary of Parent, (y) each intercompany loan which if such Debt is owed by a Loan Party to a non-Debtor Subsidiary that is not a Loan Party, shall be subject expressly subordinated in right of payment to subordination provisions the Obligations pursuant to the Intercompany Subordination Agreement or otherwise in form and substance satisfactory a manner reasonably acceptable to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersAgent;
(vm) Debt secured obligations (contingent or otherwise) of Parent or any Subsidiary of Parent existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by Liens permitted such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by Section 5.02(a)(ivsuch Person, or changes in the value of securities issued by such Person, and not for purposes of speculation and (ii) and Capitalized Leases arising after such Swap Contract does not contain any provision exonerating the Closing Date not non-defaulting party from its obligation to exceed an aggregate principal amount equal make payments on outstanding transactions to $2,500,000 at any time outstandingthe defaulting party (other than pursuant to customary netting or setoff provisions);
(vin) endorsement Guarantees of negotiable instruments for deposit any Loan Party in respect of Debt otherwise permitted hereunder of any other Loan Party;
(o) [Reserved];
(p) Debt of consisting of obligations to pay insurance premiums or collection or similar transactions take-or-pay obligations contained in supply arrangements incurred in the ordinary course of business;
(viiq) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries[Reserved];
(viiir) Debt in respect of any bankers’ acceptanceoverdraft facilities, letter of creditautomatic clearinghouse arrangements, warehouse receipt or similar facilities entered into employee credit card programs and other business cash management arrangements in the ordinary course of business;
(s) notes issued in connection with cashless stock repurchases to the extent otherwise permitted hereunder in an aggregate principal amount not to exceed $5,000,000 in any Fiscal Year;
(t) Debt representing deferred compensation to employees of Loan Parties or any of their Subsidiaries incurred in the ordinary course of business,
(u) [Reserved];
(v) [Reserved];
(w) [Reserved];
(x) Debt to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Capital Stock of Parent or any direct or indirect parent of Parent permitted by Section 10.2; and
(y) Debt not otherwise permitted pursuant to clauses (c) through (x) of this Section 10.5 in an aggregate principal amount at any one time outstanding not to exceed the greater of (i) $25,000,000 and (ii) 6.25% of the consolidated total assets of the Loan Parties and their Subsidiaries.
(z) Permitted Refinancing Debt in respect of the foregoing.
Appears in 1 contract
Samples: Loan and Security Agreement (EveryWare Global, Inc.)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries or any Excluded Subsidiary (other than any Excluded Subsidiary of the type referred to in clause (b) or (c) of the definition thereof) to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(ii) to the extent constituting Debt, Obligations under the Contract Support Documents; provided that at no time shall any such Obligations constitute Contract Support First Lien Advances to the extent that the outstanding principal amount of such Contract Support First Lien Advances when taken together with the Maximum First Lien Claims under any Permitted Commodity Hedge and Power Sale Agreement then in effect exceed $475,000,000;
(iii) secured Debt under any letter of credit facility (including, without limitation, the Special L/C Facility, any Special L/C Incremental Facility, any Debt incurred under any Second Lien Incremental Facility to be used for such purposes and any Synthetic L/C Facility) that supports Obligations of the Loan Parties under the Purchase Agreement, Permitted Commodity Hedge and Power Sale Agreements or other Obligations incurred in connection with the operation of the Projects, in an aggregate principal amount not to exceed $650,000,000 at any one time outstanding; provided that (A) the lender(s) or letter of credit issuer(s) (or agent on behalf of such lender(s) or letter of credit issuer(s)) of such Debt are party to the Intercreditor Agreement as, and shall have the obligations of a First Lien Secured Party or Second Lien Secured Party thereunder, (B) such Debt shall only be secured by the Liens created by the Collateral Documents or the Second Lien Collateral Documents, and (C) such Debt shall not mature earlier than the Termination Date; LSP Gen Finance First Lien Credit Agreement
(iv) secured Debt to finance the acquisition of the Ontelaunee Project (including any Debt under any Second Lien Incremental Facility or Special L/C Incremental Facility to be used for such purposes and any Ontelaunee Credit Increase) in an aggregate amount not to exceed $165,000,000 in the aggregate; provided that (A) the lender(s) or letter of credit issuer(s) (or agent on behalf of such lender(s) or letter of credit issuer(s)) of such Debt are party to the Intercreditor Agreement as, and shall have the obligation of, either a First Lien Secured Party or Second Lien Secured Party thereunder; (B) such Debt shall only be secured by the Liens created by the Collateral Documents or the Second Lien Collateral Documents; (C) such Debt shall not mature earlier than the Term Maturity Date, and (D) the Borrower shall have received a Ratings Reaffirmation;
(v) secured Debt in the form of term loans or revolving credit facilities (including any Debt under any Second Lien Incremental Facility or Special L/C Incremental Facility to be used for such purposes and any General Working Capital Credit Increase) in an aggregate amount not to exceed $100,000,000 in the aggregate; provided that (A) the lender(s) or letter of credit issuer(s) (or agent on behalf of such lender(s) or letter of credit issuer(s)) of such Debt are party to the Intercreditor Agreement as, and shall have the obligation of, either a First Lien Secured Party or Second Lien Secured Party thereunder, (B) such Debt shall only be secured by the Liens created by the Collateral Documents or the Second Lien Collateral Documents (as defined in the Intercreditor Agreement), (C) such Debt shall not mature earlier than the Termination Date, and (D) the Borrower shall have received a Ratings Reaffirmation;
(vi) Debt under the Second Lien Loan Documents in an aggregate principal amount that is not in excess of $150,000,000 plus the amount of any Debt incurred under the Second Lien Loan Documents to the extent such Debt is incurred pursuant to clauses (iii), (iv) or (v);
(vii) to the extent constituting Debt, obligations under (A) Contractual Obligations in effect as of the date hereof to the extent not constituting Debt for Borrowed Money and (B) Commodity Hedge and Power Sale Agreements to the extent permitted under Section 7.02(l);
(viii) Debt secured by Liens permitted by clause (q) of the definition of “Permitted Liens” not to exceed in the aggregate, when taken together with any Debt permitted to be incurred pursuant to Section 7.02(b)(ix), $75,000,000 at any time outstanding;
(ix) Capitalized Leases not to exceed in the aggregate, when taken together with any Debt permitted to be incurred pursuant to Section 7.02(b)(viii), $75,000,000 at any time outstanding;
(x) South Bay Lease Obligations; provided that the Borrower shall have taken the actions contemplated by Section 5.01(c)(ii); LSP Gen Finance First Lien Credit Agreement
(xi) to the extent constituting Debt, payment obligations under Hedge Agreements designed to hedge against fluctuations in interest rates in respect of Hedge Agreements the Facilities and Second Lien Obligations incurred in the ordinary course of business and providing protection to the Borrower consistent with prudent business practice (it being acknowledged and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or agreed that any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposesthe purpose of complying with Section 7.01(o) above shall be deemed to be permitted Debt under this clause (xi));
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (Bxii) Debt owed to any nonLoan Party, which Debt shall (A) constitute Pledged Debt or Pledged Parent Debt, (B) be on terms reasonably acceptable to the Administrative Agent and (C) be otherwise permitted under the provisions of Section 7.02(f);
(xiii) in the case of any Non-Debtor Recourse Subsidiary, Non-Recourse Debt; provided that (A) before and after giving effect to the incurrence of such Non-Recourse Debt, no Default or Event of Default shall have occurred and be continuing, and (B) any Working Capital Letter of Credit issued for the benefit of such Group II Portfolio Company shall be terminated, returned for cancellation or cash collateralized in an amount equal to 102.5% of the Available Amount thereof prior to or simultaneously with the incurrence of such Non-Recourse Debt;
(A) Debt of a Person or Debt attaching to assets of a Person that, in either case becomes a Subsidiary of the Borrower and is a Guarantor hereunder or Debt attaching to assets that are acquired by the Borrower or any Guarantor as a result of a Permitted Acquisition; provided that (1) such Debt existed at the time such Person became a Subsidiary of the Borrower or at the time such assets were acquired and, in each case, was not created in anticipation thereof, (2) such Debt is not guaranteed in any respect by any Loan Party (other than any such Person that becomes a Guarantor hereunder) and (C3) (x) the Equity Interests in such Person are or will be pledged to the First Lien Collateral Agent to the extent required under Section 7.01(q) and (y) all other steps required to be taken in connection with the granting of a Lien over the Property (other than Excluded Property) of such Person pursuant to Section 7.01(q) shall have been or will be taken; and (B) any refinancing, refunding, renewal or extension of any Debt owed specified in clause (A); provided that (I) the principal amount of such Debt is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, (II) the direct and contingent obligors with respect to such Debt are not changed and (III) the final maturity of such refinancing, refunding, renewal or extension Debt is no earlier than the existing scheduled maturity date of the Debt being refinanced, renewed or extended;
(A) unsecured subordinated Debt of the Borrower or any Guarantor incurred to finance a Permitted Acquisition in an aggregate amount not to exceed $150,000,000 at any one time outstanding; provided that (1) such Debt is not guaranteed in any respect by any non-Debtor Subsidiary to any Loan Party (other than any Person acquired (the “Acquired Person”) as a result of such Permitted Acquisition or the LSP Gen Finance First Lien Credit Agreement Loan Party so incurring such Debt) or, in an amount not exceeding the amount case of any Investment made Debt of any Guarantor, by the Borrower, (2)(x) the Borrower pledges or will pledge the Equity Interests of such Acquired Person to the First Lien Collateral Agent to the extent required under extent required under Section 7.01(q) and (y) all other steps required to be taken in connection with the granting of a Lien over the Property (other than Excluded Property) of such Acquired Person pursuant toto Section 7.01(q) shall have been or will be taken, (3) any such Debt is incurred prior to or within 90 days after such Permitted Acquisition, (4) both before and permitted under, Section 5.02(e)(vi), provided that, after giving effect to the incurrence of such Debt (x) no Default or Event of Default shall have occurred and be continuing and (y) the Borrower would be in compliance with the Financial Covenants as of the most recently completed Measurement Period ending prior to the extent that incurrence of such Debt for which financial statements and certificates required by Section 7.03(b) or 7.03(c) were required to be delivered, after giving pro forma effect to the Administrative Agent requires that an intercompany loan incurrence of such Debt and the related Permitted Acquisition and to any other event occurring after such Measurement Period as to which pro forma recalculation is evidenced by a promissory note, appropriate as if such promissory note shall be in form incurrence of Debt and substance the related Permitted Acquisition had occurred as of the first day of such Measurement Period and (5) such Debt is subordinated to the Advances on either customary market terms at the time such Debt is incurred or otherwise on terms reasonably satisfactory to the Administrative Agent; and (B) any refinancing, refunding, renewal or extension of any Debt specified in clause (A); provided that (I) the principal amount of such Debt is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, (yII) each intercompany loan owed by a Loan Party the direct and contingent obligors with respect to a non-Debtor Subsidiary shall be subject such Debt are not changed, (III) the final maturity of such refinancing, refunding, renewal or extension Debt is no earlier than the existing scheduled maturity date of the Debt being refinanced, renewed or extended, and (IV) such Debt is subordinated to subordination provisions in form and substance the Advances on either customary market terms at the time such Debt is incurred or otherwise on terms reasonably satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersAgent;
(vxvi) Debt secured by Liens arising from agreements of the Loan Party, any Guarantor or any of their Subsidiaries providing for indemnification, adjustment of purchase price, earn-out, non-complete, consulting, deferred compensation or other similar obligations in connection with any Permitted Acquisition or Asset Sale permitted by in accordance with Section 5.02(a)(iv7.02(e); provided that (A) such Debt is not reflected on the balance sheet of the Borrower, such Guarantor or such Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for the purposes of this clause (A)) and Capitalized Leases arising after (B) in the Closing Date case of any Asset Sale, the maximum assumable liability in respect of all such Debt shall at no time exceed the gross proceeds, including noncash proceeds (the fair market value of such noncash proceeds being measured at the time received and without giving effect to any subsequent change in value), actually received by the Borrower, such Guarantor or such Subsidiary in connection with such Asset Sale;
(xvii) other unsecured Debt in an aggregate amount not to exceed an aggregate principal amount equal to $2,500,000 35,000,000 at any one time outstanding;; LSP Gen Finance First Lien Credit Agreement
(vixviii) endorsement to the extent constituting Debt, Debt in respect of negotiable instruments for deposit performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees, indemnification obligations, obligations to pay insurance premiums, take or collection or pay obligations and similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations obligations incurred in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiariesnot in connection with Debt for Borrowed Money;
(viiixix) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;business and not in respect of Hedge Agreements or Permitted Commodity Hedge and Power Sale Agreements; and
(xx) Debt incurred to Refinance the Working Capital Facility and any Debt permitted to be incurred under Section 7.02(b)(v) (a “Permitted Working Capital Refinancing”); provided that (A) the aggregate principal amount of such Debt does not exceed the sum of (1) the aggregate amount of the Working Capital Commitments immediately prior to such refinancing plus (2) an amount, when taken together with any Debt outstanding pursuant to Section 7.02(b)(v), not to exceed $100,000,000 plus (3) the amount of any accrued and unpaid interest in respect of such outstanding principal amount plus (4) the amount of any reasonable fees and expenses incurred in connection with such Refinancing, (B) the lenders (or agents on behalf of the lenders) of such Debt have become a party to the Intercreditor Agreement as, and have the obligations of, the First Lien Secured Parties or the Second Lien Secured Parties thereunder, (C) the maturity date of such Debt is no earlier than the Termination Date, (D) such Permitted Working Capital Refinancing shall only be secured by the Liens created by the Collateral Documents or the Second Lien Collateral Documents, and (E) to the extent that the aggregate principal amount of such Debt exceeds the sum of the aggregate principal amount of the Working Capital Commitments immediately prior to such refinancing plus the amount of any accrued and unpaid interest in respect of such outstanding principal amount the amount of any reasonable fees and expenses incurred in connection with such Refinancing, the Borrower shall have received a Ratings Reaffirmation; and
Appears in 1 contract
Debt. CreateNo Loan Party shall, incur, assume or suffer to exist, or nor shall it permit any of its Restricted Subsidiaries to createto, directly or indirectly, incur, assume create, assume, or suffer permit to existexist any Debt, any Debt other thanexcept:
(ia) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such DebtObligations;
(iib) existing Debt under the Loan Documentsdescribed on Schedule 8.1;
(iiic) Purchase Money Debt and Capitalized Lease Obligations in respect of Hedge Agreements incurred in an aggregate principal amount at the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection time incurred, together with the Borrower’s or any principal amount outstanding of its Subsidiaries’ operationsall other Debt incurred pursuant to this clause (c), in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposesto exceed the Threshold Amount;
(ivd) Debt associated with worker’s compensation claims;
(Ae) unsecured intercompany Debt owed by any Loan Party to any other another Loan Party, (Bii) Debt owed to any non-Debtor Subsidiary by any Loan Party to a Restricted Subsidiary that is not a Loan Party; provided that such Debt (A) shall be subordinated to the Obligations in a manner reasonably satisfactory to Administrative Agent and (CB) Debt owed does not require the payment of cash interest by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Loan Party, and (iii) owed by a Restricted Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such that is not a Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party Party; provided that such Debt (A) is permitted under Section 8.5 and (B) shall be evidenced by a promissory note pledged by that Loan Party as security under the Collateral Documents and will be subject delivered to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersSecurity Documents;
(vf) Guarantees by any Loan Party of Debt secured by Liens permitted by of any other Loan Party not otherwise prohibited pursuant to this Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding8.1;
(vig) endorsement Debt associated with financing of negotiable instruments for deposit or collection or similar transactions insurance premiums in the ordinary course of business;
(viih) Debt consisting arising from the honoring by a bank or other financial institution of guaranty Obligations a check, draft, payment order or other debit drawn, presented or issued against insufficient funds in the ordinary course of business so long as such Debt is extinguished within three (3) Business Days of its incurrence;
(i) any unsecured senior or unsecured senior subordinated Debt of Borrower or any Restricted Subsidiary and guarantees thereof by Borrower or any Restricted Subsidiary; provided that, in each case: (i) such Debt shall solely be comprised of unsecured senior or unsecured senior subordinated Debt, (ii) such Debt shall not provide for any amortization of principal or any scheduled prepayments of principal on any date prior to 180 days after the obligations Maturity Date in effect at the time of suppliersincurrence or issuance, customers(iii) such Debt shall not contain a scheduled maturity date that is earlier than 180 days after the Maturity Date in effect at the time of incurrence or issuance, franchisees and licensees of (iv) such Debt (or the documents governing such Debt) shall not contain (A) financial maintenance covenants that are more restrictive or onerous with respect to Borrower and its Subsidiaries;Restricted Subsidiaries than the financial maintenance covenants in this Agreement (as determined in good faith by senior management of Borrower), (B) covenants (other than financial maintenance covenants) or events of default, taken as a whole, that are more restrictive or onerous with respect to Borrower and the Restricted Subsidiaries than the covenants (other than financial maintenance covenants) and events of default in this Agreement (as determined in good faith by senior management of Borrower), (C) restrictions on the ability of Borrower or any of its Subsidiaries to guarantee the Obligation or to pledge assets as collateral security for the Obligations, (D) any mandatory prepayment or Redemption provisions which would require a mandatory prepayment or Redemption of such Debt (other than provisions requiring Redemption or offers to Redeem in connection with asset sales or a “change in control”) or (E) any prohibition on the prior repayment of any Obligations, (v) immediately after giving effect to the incurrence or issuance of such other Debt, the application of the proceeds thereof, and any automatic reduction of the Borrowing Base pursuant to Section 2.8(f) on account thereof and on the date of such incurrence or issuance of such Debt: (A) Borrower shall be in pro forma compliance with each of the Financial Covenants, in each case, for the Rolling Period most recently ended for which financial statements are available and (B) no Event of Default or Borrowing Base Deficiency shall exist and (vi) the Borrowing Base shall automatically be reduced on the date of the incurrence or issuance of such Debt to the extent (if any) required by Section 2.8(f); and
(viiij) other Debt in respect an aggregate principal amount at the time incurred, together with the principal amount outstanding of any bankers’ acceptanceall other Debt incurred pursuant to this clause (j), letter of credit, warehouse receipt or similar facilities entered into in not to exceed the ordinary course of business;Threshold Amount.
Appears in 1 contract
Debt. CreateThe Borrower will not, nor will it permit any other Credit Party to, incur, create, assume or suffer to existexist any Debt, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanexcept:
(ia) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt Notes or other Obligations arising under the Loan Documents, or Cash Management Agreements or the Secured Swap Agreements;
(iiib) Debt under Capital Leases or that constitutes Purchase Money Indebtedness; provided that the aggregate principal amount of all Debt described in this Section 9.02(b) at the time incurred (after giving effect to such incurrence) shall not exceed the greater of (i) $50,000,000 and (ii) five percent (5%) of the Borrowing Base;
(c) intercompany Debt between the Borrower and any other Credit Party or between Credit Parties; provided that such Debt is not held, assigned, transferred, negotiated or pledged to any Person other than a Credit Party; and, provided further, that any such Debt owed by a Credit Party shall be subordinated to the Obligations on terms set forth in the Guarantee Agreement;
(d) Debt constituting a Guarantee by a Credit Party of the Obligations;
(e) other Debt not to exceed in the aggregate at the time incurred (after giving effect to such incurrence) the greater of (i) $50,000,000 and (ii) five percent (5%) of the Borrowing Base;
(f) Debt in respect of Hedge Agreements incurred in the ordinary course 7.50% Senior Notes, the 5.00% Senior Notes and any other additional secured or unsecured Debt; provided that, (i) no Default or Borrowing Base Deficiency exists at the time of business and providing protection the incurrence of such Debt or would result therefrom (including, with respect to the Borrower incurrence of any such Debt after the Effective Date, after giving effect to any automatic reduction of the Borrowing Base and its Subsidiaries against fluctuations in currency values or commodity prices in connection with any concurrent repayment required pursuant to Section 2.06(e)), (ii) after giving pro forma effect to the Borrower’s or incurrence of such Debt and any of its Subsidiaries’ operationsconcurrent repayments, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) the Leverage Ratio does not exceed 3.00 to 1.00 and (B) the Current Ratio is not less than 1.00 to 1.00, (iii) the documents governing such Debt owed by do not (x) require any Loan Party scheduled amortization of principal or have a maturity date prior to one hundred eighty (180) days after the Stated Revolving Credit Maturity Date at the time of the incurrence of such Debt and (y) contain any other Loan Partymandatory prepayment or Redemption provisions (provided that the following exceptions shall be deemed not to violate the requirements of this clause (iii): (A) customary change of control or asset sale tender offer provisions, (B) Debt owed customary “bridge” facilities which, subject to any non-Debtor Subsidiary by any Loan Party customary conditions (including no payment or bankruptcy event of default) would either automatically be converted into or required to be exchanged for permanent refinancing and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party customary special mandatory Redemption provisions in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(viconnection with mergers or acquisitions), provided that, (xiv) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form covenants and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be events of default contained in the respective intercompany notedocumentation governing such Debt are (A) in the case of financial covenants, subordinating not more restrictive than the obligations financial covenants of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (zB) in the case of other covenants and events of default, taken as a whole, not more restrictive than the corresponding terms of this Agreement and the other Loan Documents in each intercompany loan owed case as reasonably determined in good faith by the Borrower, (v) such Debt does not prohibit prior repayment of the Obligations and (vi) if such Debt is secured, (A) a Junior Lien Intercreditor Agreement shall have been entered into with respect to a Loan Party such Debt and (B) there shall be pledged by that Loan no Lien on the assets of any Credit Party as security under securing any such Debt if the Collateral Documents and will be same assets are not subject to a perfected Lien granted in favor of securing the Administrative Agent and the Lenders pursuant to the OrdersObligations;
(vg) Debt secured by Liens permitted by which constitutes a Permitted Refinancing of Debt outstanding or incurred under Section 5.02(a)(iv9.02(f) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstandingor Section 9.02(j);
(vih) endorsement of negotiable instruments for deposit Debt incurred or collection deposits made by the Credit Parties (i) under worker’s compensation laws, unemployment insurance laws or similar transactions legislation, (ii) in connection with bids, tenders, contracts (other than for the payment of Debt) or leases to which such Credit Party is a party, (iii) to secure public or statutory obligations of such Credit Party, and (iv) of cash or U.S. government securities made to secure the performance of statutory obligations, surety, stay, customs and appeal bonds to which such Credit Party is a party in connection with the operation of the Hydrocarbon Interests in the ordinary course of business;
(viii) Debt consisting of guaranty Obligations any Credit Party assumed in connection with any acquisition permitted by Section 9.05 so long as such Debt is not incurred in contemplation of such acquisition, and any Permitted Refinancing thereof; provided that after giving pro forma effect to such acquisition and the ordinary course assumption of business of such Debt, (i) the obligations of suppliers, customers, franchisees Leverage Ratio does not exceed 3.00 to 1.00 and licensees of (ii) the Borrower and its SubsidiariesCurrent Ratio is not less than 1.0 to 1.0;
(viiij) Permitted Pari Term Loan Debt incurred on or prior to the date that is one year after the Third Amendment Effective Date, and any guarantees thereof; provided that the aggregate principal amount of Permitted Pari Term Loan Debt permitted by this clause (j) shall not exceed, at the time of incurrence thereof, an aggregate principal amount equal to the least of: (i) the Borrowing Base then in effect minus the aggregate Elected Loan Limit then in effect, (ii) an amount equal to the aggregate Elected Loan Limit at such time and (iii) the greater of (x) $1,000,000,000 and (y) 33 1/3% of the sum of the Elected Loan Limit plus the aggregate principal amount of such Permitted Pari Term Loan Debt (after giving effect to the incurrence thereof); and
(k) Debt of the type described in respect clause (c) of the definition thereof in connection with the Fifth Amendment Acquisition or any bankers’ acceptance, letter of credit, warehouse receipt other Investment or similar facilities entered into acquisition permitted hereunder in an amount not to exceed $550,000,000 in the ordinary course of business;aggregate at the time incurred.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries or any Excluded Subsidiary (other than Excluded Subsidiaries of the type referred to in clause (b) or (c) of the definition thereof) to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(ii) to the extent constituting Debt, Obligations under the Contract Support Documents; provided that at no time shall any such Obligations constitute Contract Support First Lien Advances to the extent that the outstanding principal amount of such Contract Support First Lien Advances when taken together with the Maximum First Lien Claims under any Permitted Commodity Hedge and Power Sale Agreement then in effect exceed $475,000,000; LSP Gen Finance Special L/C Facility Agreement
(iii) without duplication of clause (i) above, secured Debt under any letter of credit facility (including, without limitation, any Debt incurred under any First Lien Incremental Facility or any Second Lien Incremental Facility to be used for such purposes, but excluding any letters of credit issued under the working capital facility under the First Lien Credit Agreement) that supports Obligations of the Loan Parties under the Purchase Agreement, Permitted Commodity Hedge and Power Sale Agreements or other Obligations incurred in connection with the operation of the Projects, in an aggregate principal amount not to exceed $650,000,000 at any one time outstanding; provided that (A) the lender(s) or letter of credit issuer(s) (or agent on behalf of such lender(s) or letter of credit issuer(s)) of such Debt are party to the Intercreditor Agreement as, and shall have the obligations of a First Lien Secured Party or Second Lien Secured Party thereunder, (B) such Debt shall only be secured by the Liens created by the Collateral Documents or the Second Lien Collateral Documents, and (C) such Debt shall not mature earlier than the Maturity Date;
(iv) secured Debt to finance the acquisition of the Ontelaunee Project (including any Debt under any First Lien Incremental Facility or any Second Lien Incremental Facility to be used for such purposes) in an aggregate amount not to exceed $165,000,000 in the aggregate; provided that (A) the lender(s) or letter of credit issuer(s) (or agent on behalf of such lender(s) or letter of credit issuer(s)) of such Debt are party to the Intercreditor Agreement as, and shall have the obligation of, either a First Lien Secured Party or Second Lien Secured Party thereunder; (B) such Debt shall only be secured by the Liens created by the Collateral Documents or the Second Lien Collateral Documents; (C) such Debt shall not mature earlier than the Maturity Date, and (D) the Borrower shall have received a Ratings Reaffirmation;
(v) secured Debt in the form of term loans or revolving credit facilities (including any Debt under any First Lien Incremental Facility or any Second Lien Incremental Facility to be used for such purposes) in an aggregate amount not to exceed $100,000,000 in the aggregate; provided that (A) the lender(s) or letter of credit issuer(s) (or agent on behalf of such lender(s) or letter of credit issuer(s)) of such Debt are party to the Intercreditor Agreement as, and shall have the obligation of, either a First Lien Secured Party or Second Lien Secured Party thereunder, (B) such Debt shall only be secured by the Liens created by the Collateral Documents or the Second Lien Collateral Documents (as defined in the Intercreditor Agreement), (C) such Debt shall not mature earlier than the Maturity Date, and (D) the Borrower shall have received a Ratings Reaffirmation;
(vi) (A) Debt under the First Lien Loan Documents in an aggregate principal amount that is not in excess of $1,090,000,000 plus the amount of any Debt incurred under the First Lien Loan Documents to the extent such Debt is incurred pursuant to clauses (iii), (iv) or (v); and (B) Debt under the Second Lien LSP Gen Finance Special L/C Facility Agreement Loan Documents in an aggregate principal amount that is not in excess of $150,000,000 plus the amount of any Debt incurred under the Second Lien Loan Documents to the extent such Debt is incurred pursuant to clauses (iii), (iv) or (v);
(vii) to the extent constituting Debt, obligations under (A) Contractual Obligations in effect as of the date hereof to the extent not constituting Debt for Borrowed Money and (B) Commodity Hedge and Power Sale Agreements to the extent permitted under Section 5.02(l).
(viii) Debt secured by Liens permitted by clause (q) of the definition of “Permitted Liens” not to exceed in the aggregate, when taken together with any Debt permitted to be incurred pursuant to Section 5.02(b)(ix), $75,000,000 at any time outstanding;
(ix) Capitalized Leases not to exceed in the aggregate, when taken together with any Debt permitted to be incurred pursuant to Section 5.02(b)(viii), $75,000,000 at any time outstanding;
(x) South Bay Lease Obligations; provided that the Borrower shall have taken the actions contemplated by Section 3.01(c)(ii);
(xi) to the extent constituting Debt, payment obligations under Hedge Agreements designed to hedge against fluctuations in interest rates in respect of Hedge Agreements the Special L/C Facility and Second Lien Obligations incurred in the ordinary course of business and providing protection to the Borrower consistent with prudent business practice (it being acknowledged and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or agreed that any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposesthe purpose of complying with Section 5.01(o) above shall be deemed to be permitted Debt under this clause (xi));
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (Bxii) Debt owed to any nonLoan Party, which Debt shall (A) constitute Pledged Debt or Pledged Parent Debt, (B) be on terms reasonably acceptable to the Administrative Agent and (C) be otherwise permitted under the provisions of Section 5.02(f);
(xiii) in the case of any Non-Debtor Recourse Subsidiary, Non-Recourse Debt; provided that (A) before and after giving effect to the incurrence of such Non-Recourse Debt, no Default or Event of Default shall have occurred and be continuing, and (B) any Special Letter of Credit issued for the benefit of such Group II Portfolio Company shall be terminated, returned for cancellation or cash collateralized in an amount equal to 102.5% of the Available Amount thereof prior to or simultaneously with the incurrence of such Non-Recourse Debt;
(A) Debt of a Person or Debt attaching to assets of a Person that, in either case becomes a Subsidiary of the Borrower and is a Guarantor hereunder or Debt attaching to assets that are acquired by the Borrower or any Guarantor as a result of a Permitted Acquisition; provided that (1) such Debt existed at the time such Person became a Subsidiary of the Borrower or at the time such assets were LSP Gen Finance Special L/C Facility Agreement acquired and, in each case, was not created in anticipation thereof, (2) such Debt is not guaranteed in any respect by any Loan Party (other than any such Person that becomes a Guarantor hereunder) and (C3) (x) the Equity Interests in such Person are or will be pledged to the First Lien Collateral Agent to the extent required under Section 5.01(q) and (y) all other steps required to be taken in connection with the granting of a Lien over the Property (other than Excluded Property) of such Person pursuant to Section 5.01(q) shall have been or will be taken; and (B) any refinancing, refunding, renewal or extension of any Debt owed specified in clause (A); provided that (I) the principal amount of such Debt is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, (II) the direct and contingent obligors with respect to such Debt are not changed and (III) the final maturity of such refinancing, refunding, renewal or extension Debt is no earlier than the existing scheduled maturity date of the Debt being refinanced, renewed or extended;
(A) unsecured subordinated Debt of the Borrower or any Guarantor incurred to finance a Permitted Acquisition in an aggregate amount not to exceed $150,000,000 at any one time outstanding; provided that (1) such Debt is not guaranteed in any respect by any non-Debtor Subsidiary to any Loan Party (other than any Person acquired (the “Acquired Person”) as a result of such Permitted Acquisition or the Loan Party so incurring such Debt) or, in an amount not exceeding the amount case of any Investment made Debt of any Guarantor, by the Borrower, (2)(x) the Borrower pledges or will pledge the Equity Interests of such Acquired Person to the First Lien Collateral Agent to the extent required under extent required under Section 5.01(q) and (y) all other steps required to be taken in connection with the granting of a Lien over the Property (other than Excluded Property) of such Acquired Person pursuant toto Section 5.01(q) shall have been or will be taken, (3) any such Debt is incurred prior to or within 90 days after such Permitted Acquisition, (4) both before and permitted under, Section 5.02(e)(vi), provided that, after giving effect to the incurrence of such Debt (x) no Default or Event of Default shall have occurred and be continuing and (y) the Borrower would be in compliance with the Financial Covenants as of the most recently completed Measurement Period ending prior to the extent that incurrence of such Debt for which financial statements and certificates required by Section 5.03(b) or 5.03(c) were required to be delivered, after giving pro forma effect to the Administrative Agent requires that an intercompany loan incurrence of such Debt and the related Permitted Acquisition and to any other event occurring after such Measurement Period as to which pro forma recalculation is evidenced by a promissory note, appropriate as if such promissory note shall be in form incurrence of Debt and substance the related Permitted Acquisition had occurred as of the first day of such Measurement Period and (5) such Debt is subordinated to the Special L/C Advances on either customary market terms at the time such Debt is incurred or otherwise on terms reasonably satisfactory to the Administrative Agent; and (B) any refinancing, refunding, renewal or extension of any Debt specified in clause (A); provided that (I) the principal amount of such Debt is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, (yII) each intercompany loan owed by a Loan Party the direct and contingent obligors with respect to a non-Debtor Subsidiary shall be subject such Debt are not changed, (III) the final maturity of such refinancing, refunding, renewal or extension Debt is no earlier than the existing scheduled LSP Gen Finance Special L/C Facility Agreement maturity date of the Debt being refinanced, renewed or extended, and (IV) such Debt is subordinated to subordination provisions in form and substance the Special L/C Advances on either customary market terms at the time such Debt is incurred or otherwise on terms reasonably satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersAgent;
(vxvi) Debt secured by Liens arising from agreements of the Loan Party, any Guarantor or any of their Subsidiaries providing for indemnification, adjustment of purchase price, earn-out, non-complete, consulting, deferred compensation or other similar obligations in connection with any Permitted Acquisition or Asset Sale permitted by in accordance with Section 5.02(a)(iv5.02(e); provided that (A) such Debt is not reflected on the balance sheet of the Borrower, such Guarantor or such Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for the purposes of this clause (A)) and Capitalized Leases arising after (B) in the Closing Date case of any Asset Sale, the maximum assumable liability in respect of all such Debt shall at no time exceed the gross proceeds, including noncash proceeds (the fair market value of such noncash proceeds being measured at the time received and without giving effect to any subsequent change in value), actually received by the Borrower, such Guarantor or such Subsidiary in connection with such Asset Sale;
(xvii) other unsecured Debt in an aggregate amount not to exceed an aggregate principal amount equal to $2,500,000 35,000,000 at any one time outstanding;
(vixviii) endorsement to the extent constituting Debt, Debt in respect of negotiable instruments for deposit performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees, indemnification obligations, obligations to pay insurance premiums, take or collection or pay obligations and similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations obligations incurred in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiariesnot in connection with Debt for Borrowed Money;
(viiixix) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;business and not in respect of Hedge Agreements or Permitted Commodity Hedge and Power Sale Agreements; and
(xx) Debt incurred to Refinance the Working Capital Facility (as defined in the First Lien Credit Agreement) and any Debt permitted to be incurred under Section 5.02(b)(v) (a “Permitted Working Capital Refinancing”); provided that (A) the aggregate principal amount of such Debt does not exceed the sum of (1) the aggregate amount of the commitments in respect of the Working Capital Facility immediately prior to such refinancing plus (2) an amount, when taken together with any Debt outstanding pursuant to Section 5.02(b)(v), not to exceed $100,000,000, plus (3) the amount of any accrued and unpaid interest in respect of such outstanding principal amount plus (4) the amount of any reasonable fees and expenses incurred in connection with such Refinancing, (B) the lenders (or agents on behalf of the lenders) of such Debt have become a party to the Intercreditor Agreement as, and have the obligations of, the First Lien Secured Parties or the Second Lien Secured Parties thereunder, (C) the maturity date of such Debt is no LSP Gen Finance Special L/C Facility Agreement earlier than the Maturity Date, (D) such Permitted Working Capital Refinancing shall only be secured by the Liens created by the Collateral Documents or the Second Lien Collateral Documents, and (E) to the extent that the aggregate principal amount of such Debt exceeds the sum of the aggregate principal amount of the commitments in respect of the Working Capital Facility immediately prior to such refinancing plus the amount of any accrued and unpaid interest in respect of such outstanding principal amount the amount of any reasonable fees and expenses incurred in connection with such Refinancing, the Borrower shall have received a Ratings Reaffirmation; and
Appears in 1 contract
Samples: Special Letter of Credit Facility Agreement (Dynegy Inc /Il/)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(vii) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 20,000,000 at any time outstanding;
(iii) (A) Capitalized Leases not to exceed in the aggregate $25,000,000 at any time outstanding, and (B) in the case of Capitalized Leases to which any Subsidiary of such Loan Party is a party, Debt of such Loan Party of the type described in clause (i) of the definition of “Debt” guaranteeing the Obligations of such Subsidiary under such Capitalized Leases;
(iv) the Surviving Debt, and any Refinancing Debt of any Surviving Debt;
(v) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates incurred in the ordinary course of business and consistent with prudent business practice;
(vi) endorsement in the case of negotiable instruments any Loan Party, Debt owed to the Revolving Credit Borrower or wholly-owned Subsidiary of the Revolving Credit Borrower, which Debt shall be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(vii) in the case of any Non-Guarantor Subsidiary, Debt owed to the Revolving Credit Borrower or Subsidiary of the Revolving Credit Borrower;
(viii) So long as no Default has occurred and is continuing or would result from such incurrence or issuance (unless the Net Cash Proceeds therefrom are applied to the prepayment of the Term B Advances pursuant to Section 2.06), Non-Recourse Debt under Mortgage Financings in respect of Real Property Collateral or other Real Property of the Loan Parties and their Subsidiaries (other than the CMBS Subsidiaries);
(ix) unsecured Debt incurred in the ordinary course of business, maturing within one year from the date incurred, and aggregating on a Consolidated basis, not more than $25,000,000 at any one time outstanding;
(x) Debt of the CMBS Subsidiaries under the CMBS Bridge Financing and the CMBS Mortgage Financings; provided, however, that the initial net cash proceeds thereof in excess of $900,000,000 (such excess amount being the “Excess CMBS Financing Proceeds”) shall be restricted in use to (A) up to $100,000,000 in the aggregate in (1) Investments in Southern California Office Real Properties comparable to the Revolving Credit Borrower’s existing portfolio which generate stabilized Net Operating Income returns of 7.0% on acquisition cost thereof (including, without limitation, the San Diego Tech Center) and (2) income-accretive Capital Expenditures for deposit improvements on existing Southern California Office Real Properties of the Revolving Credit Borrower and its Subsidiaries which generate stabilized Net Operating Income returns of 7.0% on the amount expended, provided that such Office Real Property is subject to a Mortgage or collection that the Equity Interests in a Property-Level Subsidiary that directly or similar transactions indirectly owns such Real Property constitute Pledged Equity, (B) up to $25,000,000 in required reserves for future leasing costs, (C) up to $45,000,000 to prepay in full the Park Place Facility, (D) prepay the Term B Advances pursuant to Section 2.06(a) (the Investments and uses described in the foregoing sub-clauses (A) through (C) and this sub-clause (D) being, collectively, the “Specified Applications”) and (E) to repay Revolving Credit Advances pursuant to Section 2.06(a); provided, further, that the aggregate amount used pursuant to clauses (A), (B), (C) and (E) of the foregoing proviso shall not exceed the sum of (1) $125,000,000 and (2) an amount equal to the amount used pursuant to clause (C) of the foregoing proviso in Bosa Sale Proceeds; and provided, further, that prior to the making of any Investment or application of any reserve referred to in the preceding proviso, such excess amount shall be deposited in the Collateral Account to cash collateralize the Facilities, and any such Investment, when made, shall secure the Facilities, in each case on terms acceptable to the Administrative Agent (it being understood that pledges of Equity Interests in the Property-Level Subsidiary that owns the Real Property purchased through such Investment would be acceptable);
(xi) Debt of any Person that becomes a Subsidiary of the Revolving Credit Borrower after the date hereof in accordance with the terms of Section 5.02(f), which Debt is existing at the time such Person becomes a Subsidiary of the Revolving Credit Borrower (other than Debt incurred solely in contemplation of such Person becoming a Subsidiary of the Revolving Credit Borrower);
(xii) Debt consisting of Guarantee Obligations in respect of Permitted Construction Financing in an aggregate amount not to exceed $50,000,000;
(xiii) Debt consisting of Limited Recourse Guarantee Obligations incurred in the ordinary course of business;
(viixiv) Debt incurred to finance customary leasehold improvements required by the terms of, or as a condition to the entering into of, Tenant Leases (including, with respect to the 777 Tower, Guarantee Obligations of the General Partner in an aggregate not to exceed $10,000,000);
(xv) Guarantee Obligations consisting of guaranty master leases with Subsidiaries and guaranties covering rent abatements or other rent concessions or rent and other income with respect to vacancies or other property-related sources of potential revenue in an aggregate amount not to exceed $15,000,000 in any fiscal year;
(xvi) Permitted Construction Financing and Refinancing Debt of Permitted Construction Financing;
(xvii) in the case of the TRS Subsidiaries, Guarantee Obligations incurred in the ordinary course of business of the obligations TRS Subsidiaries arising under management, leasing and development agreements entered into by the TRS Subsidiaries relating to the provision of suppliersadministrative and operational, customersmanagement, franchisees and licensees leasing and/or development services, so long as the aggregate amount of the Borrower and its Subsidiariessuch Guarantee Obligations does not at any time exceed $50,000,000;
(viiixviii) Debt of Park Place MD under the Park Place Facility and Guarantee Obligations of the Revolving Credit Borrower and the General Partner in respect of any bankers’ acceptance, letter the Park Place Facility in an aggregate principal amount not to exceed $45,000,000; and
(xix) Debt assumed as part of credit, warehouse receipt or similar facilities entered into the purchase of the 777 Tower in the ordinary course of business;an aggregate principal amount not to exceed $155,000,000.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iiiii) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or commodity pricing, in each case incurred in the ordinary course of business and providing protection consistent with prudent business practice,
(iii) Debt owed to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposesa Loan Party;
(iv) Debt incurred by the Borrower (Awhich may be guaranteed by the Guarantors) Debt owed in connection with the issuance of unsecured senior notes (the “Permitted Senior Notes”); provided that (1) no Default or Event of Default shall have occurred and be continuing at the time of any such issuance or would be caused by any Loan Party to any other Loan Partysuch issuance, (B2) Debt owed the Consolidated Total Leverage Ratio shall not exceed 3.50 to any non-Debtor Subsidiary by any Loan Party 1.00 on a pro forma basis and (C) Debt owed by any non-Debtor Subsidiary the Borrower shall otherwise be in pro forma compliance with the financial covenants set forth in Section 5.04, in each case after giving effect to any Loan Party in an amount not exceeding the amount incurrence of any Investment made pursuant tosuch Debt, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that shall provide the Administrative Agent requires that an intercompany loan is evidenced and Lenders with a pro forma compliance certificate evidencing such compliance at least 10 days (or such shorter period as may be agreed to by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent) in advance of any such Debt issuance, (y3) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary such Debt shall rank no higher than pari passu with the Obligations, (4) the maturity of such Debt shall be subject to subordination provisions in form at least six (6) months after the latest Termination Date and substance satisfactory to maturity of any other term loan or facility hereunder, (5) the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations terms of such Loan Party thereunder Debt may not restrict, limit or otherwise encumber the ability of the Borrower or any Subsidiary to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted grant Liens in favor of the Administrative Agent or any Lender under this Agreement or any other Loan Document, and the Lenders pursuant (6) such Debt shall otherwise be issued on terms and conditions reasonably satisfactory to the Orders;Administrative Agent.
(v) in the case of any Subsidiary of the Borrower, (a) with respect to any Subsidiary of the Borrower that is a Loan Party, Debt owed to the Borrower or to any other Loan Party and (b) with respect to any Subsidiary of the Borrower that is not a Loan Party, Debt owed to any other Subsidiary of the Borrower that is not a Loan Party;
(vi) so long as no Default has occurred and is continuing, Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed in an aggregate principal amount equal not to exceed, at the time of incurrence of any such Debt (and measured after giving effect to the incurrence thereof), the greater of (x) $2,500,000 at 25,000,000 and (y) 10.0% of Consolidated EBITDA (as of the last day of the most recently ended four fiscal quarter period for which financial statements have been delivered pursuant to Section 5.03(b) or 5.03(c)); provided that to the extent any time outstandingDebt is created, incurred or assumed in compliance with this clause (B) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (B) in the event that a Default has occurred and is continuing;
(vivii) Capitalized Leases (other than those permitted by clause (x) below) in an aggregate principal amount not to exceed, at the time of incurrence of any such Capitalized Lease (and measured after giving effect to the incurrence thereof), the greater of (x) $25,000,000 and (y) 10.0% of Consolidated EBITDA (as of the last day of the most recently ended four fiscal quarter period for which financial statements have been delivered pursuant to Section 5.03(b) or 5.03(c)), and in the case of Capitalized Leases to which any Subsidiary of a Loan Party is a party, Debt of the Loan Party of the type described in clause (j) of the definition of Debt guaranteeing the obligations of such Subsidiary under the Capitalized Leases permitted under this clause (vii);
(viii) Debt of any Person that becomes a Subsidiary of the Borrower after the Effective Date in accordance with the terms of Section 5.02(f) which Debt is existing at the time such Person becomes a Subsidiary of the Borrower (and is not incurred in connection with or in contemplation of such Person becoming a Subsidiary of the Borrower), in an aggregate principal amount not to exceed, at the time of incurrence of any such Debt (and measured after giving effect to the incurrence thereof), the greater of (x) $25,000,000 and (y) 10.0% of Consolidated EBITDA (as of the last day of the most recently ended four fiscal quarter period for which financial statements have been delivered pursuant to Section 5.03(b) or 5.03(c));
(ix) so long as no Default has occurred and is continuing, other unsecured Debt of the Borrower in an aggregate principal amount not to exceed, at the time of incurrence of any such Debt (and measured after giving effect to the incurrence thereof), the greater of (x) $25,000,000 and (y) 10.0% of Consolidated EBITDA (as of the last day of the most recently ended four fiscal quarter period for which financial statements have been delivered pursuant to Section 5.03(b) or 5.03(c)); provided that to the extent any Debt is created, incurred or assumed in compliance with this clause (ix) while no Default has occurred and is continuing, such Debt shall continue to be permitted under this clause (ix) in the event that a Default has occurred and is continuing;
(x) the Surviving Debt set forth on Schedule 5.02(b), and any Debt extending the maturity of, or refunding or refinancing, in whole or in part, any Surviving Debt; provided that the terms of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are otherwise permitted by the Loan Documents; provided further that the principal amount of such Surviving Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing;
(xi) contingent obligations of the Loan Parties or any of their Subsidiaries in an aggregate principal amount not to exceed, at the time of incurrence of any such Debt (and measured after giving effect to the incurrence thereof), the greater of (x) $25,000,000 and (y) 10.0% of Consolidated EBITDA (as of the last day of the most recently ended four fiscal quarter period for which financial statements have been delivered pursuant to Section 5.03(b) or 5.03(c)); provided that such contingent obligations are unsecured;
(xii) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viiixiii) Debt in respect of letters of credit in an aggregate principal amount not to exceed, at the time of incurrence of any bankers’ acceptancesuch Debt (and measured after giving effect to the incurrence thereof), letter the greater of credit(x) $50,000,000 and (y) 15.0% of Consolidated EBITDA (as of the last day of the most recently ended four fiscal quarter period for which financial statements have been delivered pursuant to Section 5.03(b) or 5.03(c));
(xiv) Debt in respect of indemnification obligations in connection with bonds and letters of credit related to self insurance and insurance programs and policies of the Loan Parties and their respective Subsidiaries;
(xv) obligations in respect of the Borrower’s Non-Qualified Deferred Compensation Plan to the extent of assets of such plan are on the Borrower’s balance sheet;
(xvi) Guarantee obligations of the Guarantors in respect of Debt of the Borrower permitted pursuant to Section 5.02(b)(iv);
(xvii) Permitted Convertible Indebtedness; provided, warehouse receipt that (A) no Default or similar facilities entered into Event of Default shall exist immediately before or immediately after giving effect thereto on a pro forma basis, (B) the Borrower shall deliver to the Administrative Agent a certificate from a Responsible Officer, in form and detail reasonably satisfactory to the Administrative Agent, confirming the foregoing and demonstrating that the Consolidated Total Leverage Ratio does not exceed 3.50 to 1.00 and the Borrower is in compliance with the other financial covenants set forth in Section 5.04, in each case after giving effect thereto on a pro forma basis, (C) such Debt is not at any time guaranteed by any Subsidiary that is not a Guarantor, (D) the terms thereof may not restrict, limit or otherwise encumber the ability of the Borrower or any Subsidiary to grant Liens in favor of the Administrative Agent or any Lender under this Agreement or any other Loan Document, and (E) no such Debt (other than the 2021 Convertible Notes, in the ordinary course case of business;the maturity thereof) shall (x) have a scheduled maturity or require any regularly scheduled amortization payment to be made prior to the date that is 91 days after the Termination Date with respect to the Revolving Credit Facility or maturity of any other term loan or facility hereunder or (y) be subject to any mandatory redemption, mandatory repurchase or other mandatory prepayments of principal (including early conversion triggers) other than those that, in the Borrower’s good faith judgment, are customary for such Debt (it being understood that any mandatory redemption, mandatory repurchase or other mandatory prepayments contained in the 2021 Convertible Notes shall be deemed customary in the Borrower’s good faith judgment); and
(xviii) other Debt not contemplated by the above provisions; provided that (A) no Default or Event of Default shall exist immediately before or immediately after giving effect thereto, (B) the Consolidated Total Leverage Ratio shall not exceed 3.00 to 1.00 on a pro forma basis after giving effect thereto, (C) the Consolidated Senior Secured Leverage Ratio shall not exceed 2.75 to 1.00 on a pro forma basis after giving effect thereto, (D) such Debt shall not have a maturity or be subject to any amortization payments or any mandatory prepayments or sinking fund payments, in each case prior to the date that is at least six (6) months after the latest Termination Date and maturity of any other term loan or facility hereunder, (E) such Debt shall rank no higher than pari passu with the Obligations, (F) the terms of such Debt may not restrict, limit or otherwise encumber the ability of the Borrower or any Subsidiary to grant Liens in favor of the Administrative Agent or any Lender under this Agreement or any other Loan Document and (G) such Debt is on terms and conditions that are not materially more restrictive than the terms and conditions of this Agreement and the other Loan Documents and shall otherwise be issued on terms and conditions reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Cracker Barrel Old Country Store, Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(ra) (including, without limitation, y) in the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements case of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s Credit Party or any Subsidiary of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan a Credit Party, (B) Debt owed to any nonother Credit Party or any wholly-Debtor owned Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(viCredit Party (other than an Excluded Subsidiary), provided that, in each case, such Debt (x1) shall be on terms acceptable to the extent that the Administrative Agent requires that (or, during the continuance of an intercompany loan is Event of Default, the Required Holders), and (2) shall be evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions notes in form and substance satisfactory to the Administrative Agent (or, during the continuance of an Event of Default, the Required Holders), which promissory notes shall (unless payable to the Company) by their terms be contained in the respective intercompany note, subordinating subordinated to the obligations of such Loan Party thereunder to the Obligations of such Loan Party Credit Parties evidenced by the Notes and under this Agreement and the other Loan Documents Transaction Documents, and (z) each intercompany loan in the case of any Excluded Subsidiary, Debt owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Ordersany other Excluded Subsidiary;
(vb) in the case of each Credit Party (other than the Parent Guarantor) or its Subsidiaries,
(i) Debt under the Transaction Documents,
(ii) Debt secured by Liens permitted by Section 5.02(a)(iv10.1(c) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 7,500,000 at any time outstanding,
(1) Capitalized Leases (other than with respect to Real Property) not to exceed in the aggregate $25,000,000 at any time outstanding, and (2) in the case of Capitalized Leases (other than with respect to Real Property) to which any Subsidiary of a Credit Party is a party, Debt of such Credit Party of the type described in clause (a) of the definition of “Debt” guaranteeing the obligations of such Subsidiary under such Capitalized Leases,
(iv) [intentionally omitted],
(v) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practice,
(vi) Unsecured Debt incurred in the ordinary course of business for borrowed money, maturing within one year from the date created, and aggregating, on a Consolidated basis, not more than $25,000,000 at any one time outstanding, and
(vii) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Unencumbered Assets, the incurrence of which would not result in a Default under Section 11 or any other provision of this Agreement;
(vic) In the case of the Parent Guarantor or any of its Subsidiaries:
(i) Debt under Customary Carve-Out Agreements,
(ii) the Surviving Debt described on Schedule 10.2(c) hereto and any Refinancing Debt, extending, refunding, or refinancing such Surviving Debt, and
(iii) Recourse Debt (whether secured or unsecured) in an amount not to exceed in the aggregate (1) 20% of Total Asset Value plus (2) an amount equal to the aggregate commitments under the Revolving Credit Agreement; provided, however, that any recourse guaranties of Non-Recourse Debt (exclusive of Customary Carve-Out Agreements) otherwise permitted under this clause (iii) shall not exceed in the aggregate 5% of Total Asset Value; provided, further, that during any period in which the Parent Guarantor shall maintain a Debt Rating of BBB-/Baa3 or better, then the Parent Guarantor and its Subsidiaries shall be permitted to incur Recourse Debt in any amount that would not result in a failure by the Company or the Parent Guarantor to comply with any of the financial covenants applicable to it contained in Section 11;
(d) in the case of the Parent Guarantor, Debt under the Transaction Documents; and
(e) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;.
Appears in 1 contract
Samples: Note Purchase and Private Shelf Agreement (Digital Realty Trust, Inc.)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course case of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor a wholly owned Subsidiary by any Loan Party and (C) of the Borrower which is a Subsidiary Guarantor, which Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form constitute Pledged Debt and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions evidenced by promissory notes in form and substance satisfactory to the Administrative Agent to be contained and such promissory notes shall, in the respective intercompany note, subordinating the obligations case of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan Debt owed to a Loan Party Party, be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement;
(ii) in the case of any Subsidiary of the Borrower, Debt owed to the Borrower or to a wholly owned Subsidiary of the Borrower, provided that, in each case, such Debt (w) shall be permitted under Section 5.02(f), (x) shall, in the case of Debt owed to a Loan Party, constitute Pledged Debt and (y) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent and such promissory notes shall, in the case of Debt owed to a Loan Party, be pledged by that Loan Party as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Documents Agent pursuant to the terms of the Security Agreement; and
(iii) in the case of the Borrower and will its Subsidiaries,
(A) Debt under the Loan Documents,
(B) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, the Borrower shall be subject in pro forma compliance with the provisions of Section 5.04, if applicable (such compliance to a perfected Lien granted in favor be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Lender Parties as though such Debt had been incurred as of the Orders;
first day of the fiscal period covered thereby), (vI) Debt secured by Liens permitted by Section 5.02(a)(iv), (II) and Capitalized Leases arising after permitted by Section 5.02(a)(v), (III) Debt secured by Liens on the Closing Borrower's or any of its Subsidiaries' fixed assets, and (IV) Debt in respect of sale-leaseback transactions permitted by Section 5.02(a)(vii), provided, however, that (i) such Debt incurred pursuant to this Section 5.02(b)(iii)(B) shall not have scheduled amortization payments prior to the Termination Date not to exceed in an aggregate principal amount in any Fiscal Year (together with the aggregate scheduled amortization payments in any Fiscal Year prior to the Termination Date of any Debt permitted pursuant to clauses (C), (E) and (J) below) greater than the Amortization Basket, and (ii) (a) Debt incurred pursuant to clauses (I), (II) and (IV) of this Section 5.02(b)(iii)(B) shall not exceed $100 million in the aggregate during the term of this Agreement, and (b) Debt incurred pursuant to clause (III) of this Section 5.02(b)(iii)(B) shall not exceed $200 million in the aggregate during the term of this Agreement.
(C) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, the Borrower shall be in pro forma 84 compliance with the provisions of Section 5.04, if applicable (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lender Parties as though such Debt had been incurred as of the first day of the fiscal period covered thereby), Debt extending the maturity of, or refunding or refinancing, in whole or in part (without any increase in the principal amount thereof or any change in any direct or contingent obligor thereof), any Debt under the Existing Indentures, provided that (x) the terms and conditions of such extending, refunding or refinancing Debt are market terms and conditions at the time of such extension, refunding or refinancing, (y) there are no scheduled amortization payments in respect of such extending, refunding or refinancing Debt prior to the Termination Date in an aggregate principal amount in any Fiscal Year (together with the aggregate scheduled amortization payments in any Fiscal Year prior to the Termination Date of any Debt permitted pursuant to clause (B) above and clauses (E) and (J) below) greater than the Amortization Basket and (z) any security arrangements in respect of such extended, refunded or refinanced Debt shall be no more onerous to the Lender Parties than those set forth in the security documentation in effect at such time; provided, further, that any Net Cash Proceeds received by the Borrower in connection with any refinancing of Debt issued under any of the Existing Indentures shall be applied within one Business Day to prepay Revolving Credit Advances, in which event (x) any Net Cash Proceeds in excess of the aggregate amount of outstanding Revolving Credit Advances shall be deposited and held either in a Deposit Account or a Security Account (as each term is defined in the Security Agreement) and (y) the Administrative Agent shall establish a reserve against the Loan Value equal to $2,500,000 at any time outstanding;the principal amount of the Senior Notes being refinanced plus the amount of unpaid interest on such Senior Notes as of the redemption date plus the premium, fees and expenses payable in connection with the redemption of such Senior Notes, which reserve the Administrative Agent will reduce on the Business Day following receipt of written certification by a Responsible Financial Officer of the Borrower that the Borrower will redeem Senior Notes with the proceeds of a Revolving Credit Advance within three Business Days of the date of such notice, together with a Notice of Borrowing for such Revolving Credit Advance,
(viD) endorsement The Surviving Debt,
(E) So long as (1) no Default has occurred and is continuing (both at the time of negotiable instruments for deposit such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, the Borrower shall be in pro forma compliance with the provisions of Section 5.04, if applicable (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lender Parties as though such Debt had been incurred as of the first day of the fiscal period covered thereby), Debt extending the maturity of, or collection refunding or refinancing, in whole or in part (without any increase in the principal amount thereof or any change in any direct or contingent obligor thereof), any Debt described in clause (B) above and any other Surviving Debt (other than Debt issued pursuant to the Existing Indentures) of the type described in clause (B) above, provided that (x) there are no remaining scheduled amortization payments in respect of such extending, refunding or refinancing Debt prior to December 31, 2011 that is more onerous than the remaining scheduled amortization prior to December 31, 2011, if any, applicable to the Debt being extended, refunded or refinanced, (y) any security arrangements in respect of such extended, refunded or refinanced Debt shall be no more onerous to the Lender Parties than those set forth in the security documentation in effect at such time, and (z) there are no scheduled amortization payments of principal in respect of such Debt prior to the Termination Date in an aggregate principal amount in any Fiscal Year (together with the aggregated scheduled amortization payments in any Fiscal Year prior to the Termination Date of any Debt permitted pursuant to clauses (B) and (C) above and clause (J) below) greater than the Amortization Basket; provided further that the principal amount of such Debt being extended, refunded or refinanced shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing and the direct and contingent obligors therefor shall not be changed as a result of or in connection with such extension, refunding or refinancing,
(F) So long as (1) no Default has occurred and is continuing (both at the time of such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, the Borrower shall be in pro forma compliance, with the provisions of Section 5.04, if applicable (such compliance to be determined on the basis of the required financial information most recently delivered to the Administrative Agent and the Lender Parties as though such Debt had been incurred as of the first day of the fiscal period covered thereby), unsecured, subordinated Debt owing to G-I Holdings or BMCA Holdings; provided, however, that no payments shall be made with respect to Debt permitted under this clause (F) unless after giving effect to each such payment, the Available Liquidity (as certified to the Administrative Agent by a Responsible Financial Officer of the Borrower) shall be least $25 million,
(G) Debt consisting of surety bonds or similar transactions instruments in favor of government agencies in connection with workers' compensation liabilities, taxes, assessments or other obligations, provided that such Debt is incurred in the ordinary course of business;,
(viiH) Debt of any entity acquired by the Borrower or its Subsidiaries in accordance with the terms hereof so long as (i) such Debt was incurred prior to such acquisition (and not in connection with or contemplation of, such acquisition), (ii) both before and after giving effect to such acquisition, no Default or Event of Default shall exist, and (iii) such Debt has no additional direct, indirect or contingent obligor,
(I) Debt of any Loan Party consisting of guaranty Contingent Obligations in respect of Debt of other Loan Parties, so long as such other Loan Parties are permitted to incur such Debt hereunder, and
(J) So long as (1) no Default has occurred and is continuing (both at the ordinary course time of business such incurrence and after giving pro forma effect thereto), and (2) after giving effect to such incurrence, the Borrower shall be in pro forma compliance, with the provisions of Section 5.04, if applicable (such compliance to be determined on the basis of the obligations of suppliers, customers, franchisees required financial information most recently delivered to the Administrative Agent and licensees the Lender Parties as though such Debt had been incurred as of the Borrower and its Subsidiaries;
first day of the fiscal period covered thereby), Debt ranked junior (viii) Debt in respect of any bankers’ acceptanceLiens securing such Debt, letter which Liens shall be ranked junior to the Liens securing the Senior Facility) to the Senior Facility , provided that there are no scheduled amortization payments of creditprincipal in respect of such Debt prior to the Termination Date in an aggregate principal amount in any Fiscal Year (together with the aggregated scheduled amortization payments in any Fiscal Year prior to the Termination Date of any Debt permitted pursuant to clauses (B), warehouse receipt or similar facilities entered into in (C) and (E) above) greater than the ordinary course of business;Amortization Basket.
Appears in 1 contract
Samples: Credit Agreement (Building Materials Corp of America)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other than:
(i) Prepetition Debt outstanding on in the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, case of the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;Parent Borrower,
(ii) Debt under the Loan Documents;
(iiiA) Debt in respect of Hedge Agreements with one or more Secured Parties designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection consistent with prudent business practice with the Borrower’s or aggregate Agreement Value thereof not to exceed $1,000,000 at any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;time outstanding,
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor a wholly owned Subsidiary by any Loan Party and of the Parent Borrower (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding other than the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(viSub Borrower), provided that, so long as no Default shall have occurred and be continuing at the time of issuance or incurrence of such Debt or would result therefrom and which Debt (x) shall, in the case of Debt owed to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory noteLoan Party, such promissory note shall be in form and substance satisfactory to the Administrative Agentconstitute Pledged Debt, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject on terms acceptable to subordination provisions the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent to be contained and such promissory notes, in the respective intercompany notecase of Debt owed to a Loan Party, subordinating shall be pledged as security for the obligations Obligations of the holder thereof under the Loan Documents and delivered to the Administrative Agent pursuant to the terms of the Security Agreement,
(C) Debt under the Senior Notes Indenture in an aggregate principal amount not to exceed $180,010,714 in original issue amount, and
(D) unsecured Debt incurred in the ordinary course of business and aggregating not more than $5,000,000 at any one time outstanding,
(ii) in the case of the Parent Borrower's Subsidiaries,
(A) in the case of the Specified Subsidiaries, Debt owed to the Sub Borrower; PROVIDED that, in each case, such Debt (w) shall constitute Pledged Debt, (x) shall be on terms acceptable to the Administrative Agent, (y) shall be evidenced by promissory notes in substantially the form of Exhibit I-1 hereto, such promissory notes shall be secured by the personal property, and such other property as the Administrative Agent shall require from time to time, of the makers thereof and such promissory notes shall be pledged as security for the Obligations of the Sub Borrower under the Loan Documents and delivered to the Administrative Agent pursuant to the terms of the Security Agreement and (z) the Obligations of the Specified Subsidiaries under such promissory notes shall be guaranteed by the Foreign Guarantors pursuant to the Foreign Guaranty, PROVIDED FURTHER, HOWEVER, that no such Debt may be incurred by any such Specified Subsidiary unless and until the requirements of clauses (w) through (z) above, in each case relating to such Specified Subsidiary, shall, in the judgment of the Administrative Agent, have been satisfied, and
(B) in the case of any of the Subsidiaries of the Parent Borrower (other than the Sub Borrower and any Excluded Subsidiary), Debt owed to the Parent Borrower; PROVIDED that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall be on terms acceptable to the Administrative Agent and (z) shall be evidenced by promissory notes in substantially the form of Exhibit I-2 hereto or otherwise in form and substance satisfactory to the Administrative Agent and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents and delivered to the Administrative Agent pursuant to the terms of the Security Agreement,
(iii) in the case of the Parent Borrower and its Subsidiaries (other than the Sub Borrower and the Excluded Subsidiaries),
(A) Debt under the Loan Documents,
(B) Subordinated Debt in an aggregate amount not to exceed $20,000,000 at any time outstanding issued or incurred to finance, in whole or in part, any acquisition under Section 5.02(f)(vii) which Debt has been issued to the seller of the company or business being acquired at the time of such Loan Party thereunder acquisition; PROVIDED, HOWEVER, that such Debt shall be subordinated to the Obligations of such the Loan Party Parties under this Agreement and the other Loan Documents on terms and (z) each intercompany loan owed conditions satisfactory to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;Agent,
(vC) Debt secured by Liens permitted by Section 5.02(a)(iv5.02(a)(iii) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 5,000,000 at any time outstanding;,
(viD) endorsement Debt consisting of Capitalized Leases not to exceed in the aggregate $40,000,000 at any time outstanding,
(E) [Intentionally Omitted],
(F) indorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;, and
(viiG) unsecured Debt consisting of guaranty Obligations in the ordinary course of business an aggregate amount not to exceed $15,000,000 issued to members of the obligations Marshalls Group in connection with the acquisition of suppliers, customers, franchisees and licensees Saturn pursuant to the terms of the Saturn Acquisition Agreement; PROVIDED, THAT, such Debt shall be unsecured and shall otherwise be on terms and conditions acceptable to the Administrative Agent; and PROVIDED, FURTHER, THAT, the Parent Borrower or its Subsidiaries may grant to the members of the Marshalls Group a right of offset (such right of offset to be on terms and in form and substance acceptable to the Administrative Agent) of amounts due by members of the Marshalls Group to the Parent Borrower or any of its Subsidiaries;
Subsidiaries against amounts which (viiix) Debt are owed by Parent Borrower or its Subsidiaries to members of the Marshalls Group and (y) are overdue in respect of any bankers’ acceptancesuch Debt incurred pursuant to this Section 5.02(b)(iii)(G), letter and
(iv) in the case of creditthe Sub Borrower,
(A) Debt under the Loan Documents, warehouse receipt and
(B) indorsement of negotiable instruments for deposit or collection or similar facilities entered into transactions in the ordinary course of business;.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on in the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, case of the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;Borrower,
(ii) Debt under the Loan Documents;
(iiiA) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates, and not for speculative purposes, incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection consistent with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;prudent business practice,
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor a wholly owned Subsidiary by any Loan Party and (C) of the Borrower, which Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) shall constitute Pledged Debt (unless owed to the extent a Subsidiary that the Administrative Agent requires that an intercompany loan is evidenced by not, or is not required to be, a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative AgentSubsidiary Guarantor), (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject on subordinated terms acceptable to subordination provisions the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent to and such promissory notes shall be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to pledged as security for the Obligations of such Loan Party the holder thereof under this Agreement and the other Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement,
(C) Debt in respect of the Senior Subordinated Notes, in an aggregate principal amount not to exceed $175,000,000 or, if the Senior <PAGE> 55 Subordinated Notes are not issued, Debt in respect of the Bridge Loans in an aggregate principal amount not to exceed $85,000,000, and
(D) Debt in respect of the Senior Notes, in an aggregate principal amount not to exceed $100,000,000.
(ii) in the case of any Subsidiary of the Borrower, Debt owed to the Borrower or to a wholly owned Subsidiary of the Borrower, provided that, in each case, such Debt (x) shall constitute Pledged Debt (unless owed to a Subsidiary that is not, or is not required to be, a Subsidiary Guarantor), (y) shall be on terms acceptable to the Administrative Agent and (z) each intercompany loan owed to a Loan Party shall be pledged evidenced by that Loan Party as security under the Collateral Documents promissory notes in form and will be subject substance satisfactory to a perfected Lien granted in favor of the Administrative Agent and such promissory notes shall be pledged as security for the Lenders Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the Orders;terms of the Security Agreement; and
(viii) in the case of the Borrower and its Subsidiaries,
(A) Debt under the Loan Documents (which, in the case of Secured Hedge Agreements, should be consistent with the terms of Section 5.02(b)(i)(A)),
(B) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 15,000,000 at any time outstanding;,
(viC) endorsement of negotiable instruments for deposit or collection or similar transactions Capitalized Leases not to exceed in the ordinary course of business;aggregate $15,000,000 at any time outstanding,
(viiD) the Surviving Debt, and any Debt consisting of guaranty Obligations extending the maturity of, or refunding or refinancing, in the ordinary course of business of the obligations of supplierswhole or in part, customers, franchisees any Surviving Debt and licensees of the Borrower and its Subsidiaries;
(viii) any Debt in respect of the Senior Subordinated Notes or the Senior Notes, provided that the terms of any bankers’ acceptancesuch extending, letter refunding or refinancing Debt, and of credit, warehouse receipt or similar facilities any agreement entered into and of any instrument issued in connection therewith, are not otherwise prohibited by the ordinary course Loan Documents, provided further that the principal amount of business;such Surviving Debt or Debt in respect of the Senior Subordinated Notes or the Senior Notes shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing, provided still further that the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lender Parties than the terms of any agreement or instrument governing the Debt being extended, refunded or refinanced and the interest rate applicable to any such extending, refunding or refinancing Debt does not exceed the then applicable market interest rate,
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any Subsidiary of its Subsidiaries Parent to create, incur, assume or suffer to exist, any Debt Debt, except prior to the initial Borrowings on the Closing Date (x) to the extent permitted under Section 7.02 of the Existing Parent Credit Agreement (as in effect on the date hereof) or (y) any other thantransaction to the extent the restriction of such transaction by this Agreement is prohibited by Section 7.17 of the Existing Parent Credit Agreement (as in effect on the date hereof), and from and after the Closing Date except:
(ia) Prepetition Debt outstanding on in the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements case of any such Debt;
Loan Party, (ii) Debt under the Loan Documents;
(iiii) Debt in respect of Hedge Agreements required to be maintained pursuant to Section 6.15, and such other Hedge Agreements entered into to hedge against fluctuations in interest rates or foreign exchange rates and the price of metals incurred in the ordinary course of business and providing protection to the Borrower consistent with prudent business practice, and its Subsidiaries against fluctuations (ii) Debt in currency values or commodity prices in connection with the Borrower’s respect of any Existing Letter of Credit or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) Bank Guarantee to the extent that the Administrative Agent requires that an intercompany loan a Letter of Credit has been issued and is evidenced by a promissory note, outstanding hereunder to support such promissory note shall be Loan Party’s reimbursement obligation in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations respect of such Loan Party thereunder to the Obligations Existing Letter of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersCredit or Bank Guarantee;
(vb) Debt constituting Intercompany Loans to the extent permitted by Section 7.06(f) or other Intercompany Debt otherwise permitted by Section 7.06;
(c) in the case of Parent and its Subsidiaries,
(i) Debt under the Loan Documents,
(ii) Debt secured by Liens permitted by Section 5.02(a)(iv7.01(d) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 100,000,000 at any time outstanding;,
(viiii) endorsement of negotiable instruments for deposit or collection or similar transactions unsecured trade payables not overdue by more than 60 days incurred in the ordinary course of business;,
(viiiv) Debt consisting of guaranty Obligations under Capitalized Leases, as determined in the ordinary course of business of the obligations of suppliersaccordance with GAAP, customers, franchisees and licensees of the Borrower and its Subsidiaries;in an aggregate amount not to exceed $50,000,000 at any time outstanding; and
(viiiv) Debt in respect of letters of credit or Bank Guarantees (other than those issued pursuant to this Agreement) in an aggregate principal amount not to exceed $200,000,000 outstanding at any bankers’ acceptancetime;
(d) Surviving Debt outstanding on the Closing Date without any extension, renewal or refinancing thereof, other than Permitted Refinancing Debt incurred in respect of any such Surviving Debt , provided that the aggregate principal amount of Debt under this clause (d) shall not exceed the $370,000,000;
(e) unsecured Debt of Parent, so long as (A) such Debt does not mature until at least six months after the Maturity Date in respect of the Term B Facility and has no scheduled amortization prior to that date, (B) after giving effect to the incurrence of such Debt, Parent shall be in pro forma compliance with the financial covenants set forth in Section 6.18, (C) at the time of incurrence of such Debt and after giving effect thereto, no Default or Event of Default shall have occurred or be continuing and (D) the documentation governing such Debt contains customary market terms reasonably satisfactory to the Administrative Agent, including, without limitation, if such Debt is subordinated Debt, provisions subordinating such Debt to the Obligations of the Loan Parties under the Loan Documents;
(f) Closing Date Preferred Equity issued by Parent in an aggregate principal amount outstanding not to exceed $450,000,000;
(g) Debt of Foreign Subsidiaries under lines of credit including, without limitation, the principal amount (or equivalent thereof) under letter of creditcredit facilities or Bank Guarantee facilities provided to any such Foreign Subsidiary from Persons other than Parent or any of its Subsidiaries, warehouse receipt the proceeds of which Debt are used for such Foreign Subsidiary’s working capital and other general corporate purposes, provided that the aggregate principal amount of all such Debt outstanding at any time for all such Foreign Subsidiaries shall not exceed $200,000,000;
(h) unsecured Debt of Parent or similar facilities entered into any Subsidiary consisting of unsecured guarantees by Parent or any Subsidiary of obligations (which guaranteed obligations do not themselves constitute Debt) of one or more Wholly-Owned Subsidiaries of Parent;
(i) unsecured Debt of Parent evidenced by a guaranty of the Debt or other obligations of any other Person (including Debt of Foreign Subsidiaries permitted pursuant to clause (g) above), so long as at the time of such incurrence of Debt, after giving pro forma effect to such incurrence, Parent shall be in pro forma compliance with all financial covenants set forth in Section 6.18;
(j) Debt of Parent under the Shareholder Subordinated Notes issued after the Effective Date in connection with a redemption or repurchase of common stock of Parent pursuant to Section 7.07(a);
(k) unsecured Debt of the Purchaser consisting of Loan Notes (as defined in the ordinary course Press Release on the date hereof) and any unsecured guaranty of business;such Debt by Parent; and
(l) Debt of Parent and its Subsidiaries in an aggregate amount not to exceed $100,000,000 at any time outstanding.; and
(m) Debt consisting of guaranties (x) by the Qualified Loan Parties of each other’s Debt to the extent such Debt being guaranteed is permitted under any of clauses (a) through (l) in this Section 7.02 and (y) by Subsidiaries of Parent that are not Qualified Loan Parties of the Debt of any Subsidiary of Parent to the extent such Debt being guaranteed is permitted under any of clauses (a) through (l) in this Section 7.02.
Appears in 1 contract
Samples: Credit Agreement (Colfax CORP)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on in the Petition Date case of the Loan Parties and set forth in Schedule 4.01(rMI,
(A) (includingother than BWXT), without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements with Hedge Banks designed to hedge against fluctuations in foreign exchange rates incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection consistent with prudent business practice with the Borrower’s or aggregate Agreement Value thereof not to exceed $25,000,000 at any time outstanding, unless, with respect to any such excess amount, the Loan Parties (other than BWXT) shall have deposited with the Collateral Agent as cash collateral for the Obligations of its Subsidiaries’ operations, in either case; provided that the Loan Parties under the Loan Documents an amount equal to such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) excess amount within three Business Days following the date on which the aggregate Agreement Value exceeds the amount permitted pursuant to this sub-clause (A) Debt owed by any Loan Party to any other Loan Party, ),
(B) Debt owed to any non-Debtor Subsidiary a Collateral Grantor or MII, which Debt (x) shall constitute Pledged Debt and (y) shall be evidenced by any promissory notes in form reasonably satisfactory to the Collateral Agent and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Party Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement,
(C) Debt owed by consisting of the MII Loans or Debt described in clause (ii) below,
(D) Debt consisting of Obligations of BWXT to lenders to CH2M Hill Mound, Inc. in an aggregate amount for all such Debt not to exceed $3,000,000 at any non-Debtor Subsidiary time outstanding, and
(E) Subordinated Debt owing to any Loan Party Persons other than MII and its Subsidiaries in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained exceed in the respective intercompany note, subordinating aggregate $25,000,000 at any time outstanding.
(ii) in the obligations case of such the Loan Party thereunder to the Obligations of such Loan Party under this Agreement Parties and the other Loan Documents and their Subsidiaries,
(zA) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security Debt under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;Loan Documents,
(vB) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 10,000,000 at any time outstanding;,
(viC) endorsement of negotiable instruments for deposit or collection or similar transactions Capitalized Leases entered into after the date hereof not to exceed in the ordinary course of business;aggregate $10,000,000 at any time outstanding,
(viiD) the Surviving Debt, and any Debt extending the maturity of, or refunding or refinancing (including reasonable fees, costs and expenses incurred in connection with such refunding or refinancing), in whole or in part, any Surviving Debt, provided that the terms of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are otherwise permitted by the Loan Documents, provided further that the principal amount of such Surviving Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing, provided still further that the terms relating to principal amount, rate of interest, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Borrowers or the Lender Parties than the terms of any agreement or instrument governing the Surviving Debt being extended, refunded or refinanced,
(1) Debt consisting of guaranty intercompany Debt between or among any of the Loan Parties or any of their respective Subsidiaries so long as the Obligations of the debtors thereunder are subordinated to their Obligations, if any, under the Loan Documents and are incurred in the ordinary course of business consistent with past practices, and (2) Debt consisting of intercompany Debt owing by the Loan Parties or any of their respective Subsidiaries to any Insurance Subsidiary, provided that such Debt is incurred in the ordinary course of business consistent with past practices,
(F) Debt consisting of Obligations to lenders to Construcciones Maritimas Mexicanas, S.A. de C.V., a Mexican corporation, and related unsecured guaranties by JRMSA or its Subsidiaries in the ordinary course of business consistent with past practices,
(G) Obligations under the Settlement Agreement, provided that such Obligations (other than interest payment Obligations) shall mature no earlier than on the third anniversary of the obligations confirmation of suppliers, customers, franchisees and licensees a plan of reorganization in the Borrower and its Subsidiaries;Chapter 11 case of B&W,
(viiiH) Debt in respect of letters of credit and Hedge Agreements issued by parties that are not Lender Parties; provided that, except as permitted under Section 5.02(a)(vi) or (x), such Debt shall be unsecured, and
(I) Debt under Bilateral Obligations.
(iii) Debt under the Asbestos Settlement Note.
(iv) unsecured Debt of JRMSA, JRMHI and JRMI, in an aggregate amount for all such Debt not to exceed $5,000,000.
(v) Notwithstanding any bankers’ acceptanceother provision contained in this Section 5.02(b), letter MII will not permit MI and its Subsidiaries, collectively, to create, incur, assume or suffer to exist consolidated Debt in excess of $100 million in the aggregate (excluding (A) existing Debt of MI and its Subsidiaries as shown on the December 31, 2002 balance sheet of MII and its Consolidated Subsidiaries, (B) any Debt extending the maturity of, or refunding or refinancing (including reasonable fees, costs and expenses incurred in connection with such refunding or refinancing), in whole or in part, any Debt described in clause (A) of this clause (v), (C) the MII Loan made to BWXT, (D) the Asbestos Settlement Note and (E) undrawn letters of credit, warehouse receipt or similar facilities entered into in but including Advances made to BWXT under the ordinary course of business;Facilities).
Appears in 1 contract
Samples: Omnibus Credit Agreement (McDermott International Inc)
Debt. CreateNo Note Party shall, at any time, create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(a) Debt under the Note Documents;
(b) Debt of the Note Parties in respect of (i)(A) the Existing 2019 Term Loans, (B) the Existing 2017 Term Loans, (C) the Existing 2017 Revolving Credit Commitments and (D) the Existing 2016 Term Loans and (ii) Refinancing Debt extending, refunding or refinancing any of the Debt described in clause (i);
(c) in the case of any Note Party or any Subsidiary of a Note Party, Debt owed to any other than:Note Party or any wholly-owned Subsidiary of any Note Party, provided that, in each case, such Debt (i) shall be on terms acceptable to the Controlling Party and (ii) shall be evidenced by promissory notes in form and substance satisfactory to the Controlling Party, which promissory notes shall (unless payable to the Issuer) by their terms be subordinated to the Note Obligations of the Note Parties under the Note Documents;
(d) the Surviving Debt described on Schedule 4.02 and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(e) in the case of each Note Party (other than the Parent Guarantor) and its Subsidiaries,
(i) Prepetition Debt outstanding on secured by Liens permitted by Section 4.01(d) not to exceed in the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to aggregate $10,000,000 at any extensions, renewals and replacements of any such Debt;time outstanding,
(ii) Debt (A) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (B) in the case of any Capitalized Lease to which any Subsidiary of a Note Party is a party, any Contingent Obligation of such Note Party guaranteeing the Note Obligations of such Subsidiary under the Loan Documents;such Capitalized Lease,
(iii) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection consistent with the Borrower’s or any of its Subsidiaries’ operationsprudent business practices, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;and
(iv) (A) Non-Recourse Debt owed by (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Loan Party Joint Venture) in respect of Assets other than Specified Debt Assets; provided that (1) the Leverage Ratio (on a pro forma basis after giving effect to any other Loan Partythe incurrence of such Debt and the use of proceeds thereof) is not greater than 60% and (2) the Secured Debt Leverage Ratio (on a pro forma basis after giving effect to the incurrence of such Debt and the use of proceeds thereof) is not greater than (x) for so long as the Senior Obligations constitute secured Debt, 50%, or (y) otherwise, 45%, and (B) Refinancing Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) extending, refunding or refinancing Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, under Section 5.02(e)(vi4.02(e)(iv)(A), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(vf) in the case of the Parent Guarantor and the Issuer, Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstandingconsisting of Customary Carve-Out Agreements;
(vig) endorsement endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viii) secured or unsecured Debt; provided that (A) in the case of secured Debt, (1) the Leverage Ratio (on a pro forma basis after giving effect to the incurrence of such Debt and the use of proceeds thereof) is not greater than 60% and (2) the Secured Debt Leverage Ratio (on a pro forma basis after giving effect to the incurrence of such Debt and the use of proceeds thereof) is not greater than (1) for so long as the Senior Obligations constitute secured Debt, 50%, or (2) otherwise, 45%, (B) in the case of unsecured Debt, the Leverage Ratio (on a pro forma basis after giving effect to the incurrence of such Debt and the use of proceeds thereof) is not greater than 60%, (C) such Debt does not constitute an obligation (including pursuant to a guarantee) of any Person other than a Note Party, (D) in the case of secured Debt, such Debt is not secured by any Lien on any asset other than the assets that secure the Credit Facilities (or would have been required to secure the Credit Facilities pursuant to the terms thereof), (E) the stated final maturity of such Debt shall not be earlier than (1) in the case of secured Debt, the date that is 180 days prior to the Final Maturity Date, and (2) in the case of unsecured Debt, the Final Maturity Date, (F) the Weighted Average Life to Maturity of such Debt shall not be shorter than (1) in the case of secured Debt, 180 days shorter than the Weighted Average Life to Maturity of the Notes and (2) in the case of unsecured Debt, the Weighted Average Life to Maturity of the Notes, in each case, remaining as of the date of the incurrence of such Debt and (G) the other material terms, taken as a whole, of any such Debt are no less favorable in any material respect to the Note Parties than the terms of the Note Documents and (ii) Refinancing Debt extending, refunding or refinancing Debt permitted under Section 4.02(h)(i); and
(i) Debt consisting for borrowed money from a Governmental Authority under the CARES Act or any other federal or state governmental program intended to mitigate the impact of guaranty Obligations the COVID-19 pandemic so long as (i) such Debt does not constitute an obligation (including pursuant to a guarantee) of any Note Party and (ii) the Specified Debt Assets and the Equity Interests in the ordinary course of business Note Parties do not become subject to any Liens in connection with such Debt (“Qualified Government Debt”); provided, however, that 100% of the obligations net cash proceeds of suppliersany Qualified Government Debt shall be used, customersin the Issuer’s discretion, franchisees only for Permitted Uses (as defined in Amendment No. 3 to the 2017 Credit Agreement as in effect on the Signing Date) or to repay the Senior Obligations. Notwithstanding anything to the contrary in this Indenture or any other Note Document, (a) all Debt under the Notes Documents will be deemed to have been incurred in reliance only on the exception in Section 4.02(a) and licensees of the Borrower and its Subsidiaries;
(viiib) all Debt in respect of any bankers’ acceptancethe Existing 2019 Term Loans, letter of creditthe Existing 2017 Term Loans, warehouse receipt or similar facilities entered into the Existing 2017 Revolving Credit Commitments and the Existing 2016 Term Loans will be deemed to have been incurred in reliance only on the ordinary course of business;exceptions in Section 4.02(b)(i)(A), Section 4.02(b)(i)(B), Section 4.02(b)(i)(C) and Section 4.02(b)(i)(D), respectively.
Appears in 1 contract
Samples: Indenture (Hersha Hospitality Trust)
Debt. CreateBorrower will not incur, incurcreate, assume or suffer permit to exist, or and will not permit any of its Subsidiaries Subsidiary to incur, create, incur, assume or suffer permit to exist, any Debt other than:
Debt, except (ia) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan PartyObligations, (Bb) purchase money Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed Lease Obligations in an aggregate principal amount equal to which does not exceed $2,500,000 250,000 outstanding (or, in the case of the SPEs, such amounts as may be set forth in the applicable SPE Mortgage Debt documents) at any time outstanding;
time, (vic) Debt arising from the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
, (viid) Debt consisting of guaranty Obligations in the ordinary course of business of the owed by (i) one Credit Party to another Credit Party or (ii) any Subsidiary to Borrower, (e) obligations of suppliersany Credit Party for taxes, customersassessments or other governmental charges which are not at the time delinquent or thereafter payable without penalty or being contested in good faith by appropriate proceedings and, franchisees and licensees in each case, for which such Credit Party maintains adequate reserves in accordance with GAAP, (f) the SPE Mortgage Debt, (g) Debt arising from one or more judgments which do not, in themselves, give rise to an Event of Default, provided such judgments are satisfied or stayed within thirty (30) days of their rendering, (h) Debt set forth on Schedule 9.1, (i) Debt arising under Rate Management Transactions so long as entered into for bona fide hedging of liabilities of the Borrower and its Subsidiaries;
Subsidiaries and not for speculative purposes, and (viiij) unsecured Debt in respect of Borrower or any bankers’ acceptanceof its Subsidiaries to the extent not permitted by any of the foregoing clauses, letter provided that the aggregate outstanding principal amount of creditall such Debt pursuant to this clause (j) does not exceed $250,000 at any time (or, warehouse receipt or similar facilities entered into in the ordinary course case of business;the SPEs, such amounts as may be set forth in the applicable SPE Mortgage Debt documents).
Appears in 1 contract
Samples: Loan Agreement (HG Holdings, Inc.)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(vii) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 40,000,000 at any time outstanding;
(iii) (A) Capitalized Leases not to exceed in the aggregate $50,000,000 at any time outstanding, and (B) in the case of Capitalized Leases to which any Subsidiary of such Loan Party is a party, Debt of such Loan Party of the type described in clause (i) of the definition of “Debt” guaranteeing the Obligations of such Subsidiary under such Capitalized Leases;
(iv) the Surviving Debt, and any Refinancing Debt of any Surviving Debt;
(v) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates incurred in the ordinary course of business and consistent with prudent business practice;
(vi) endorsement in the case of negotiable instruments for deposit any Loan Party, Debt owed to the Revolving Credit Borrower or collection wholly-owned Subsidiary of the Revolving Credit Borrower, which Debt shall be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(vii) in the case of any Non-Guarantor Subsidiary, Debt owed to the Revolving Credit Borrower or similar transactions Subsidiary of the Revolving Credit Borrower;
(viii) So long as no Default has occurred and is continuing or would result from such incurrence or issuance (unless the Net Cash Proceeds therefrom are applied to the prepayment of the Term B Advances pursuant to Section 2.06), Non-Recourse Debt under Mortgage Financings in respect of Real Property Collateral or other Real Property of the Loan Parties and their Subsidiaries (other than the CMBS Subsidiaries);
(ix) Debt incurred in the ordinary course of business, maturing within one year from the date incurred, and aggregating on a Consolidated basis, not more than $50,000,000 at any one time outstanding;
(x) Debt of the CMBS Subsidiaries under the CMBS Bridge Financing and the CMBS Mortgage Financings;
(xi) Debt of any Person that becomes a Subsidiary of the Revolving Credit Borrower after the date hereof in accordance with the terms of Section 5.02(f), which Debt is existing at the time such Person becomes a Subsidiary of the Revolving Credit Borrower (other than Debt incurred solely in contemplation of such Person becoming a Subsidiary of the Revolving Credit Borrower);
(xii) Debt consisting of (A) Guarantee Obligations in an aggregate amount not to exceed $75,000,000 and (B) customary completion guaranties incurred in the ordinary course of business, in each case in respect of Permitted Construction Financing;
(xiii) Debt consisting of Limited Recourse Guarantee Obligations incurred in the ordinary course of business;
(viixiv) Debt incurred to finance customary leasehold improvements required by the terms of, or as a condition to the entering into of, Tenant Leases;
(xv) Guarantee Obligations consisting of guaranty master leases with Subsidiaries and guaranties covering rent abatements or other rent concessions or rent and other income with respect to vacancies or other property-related sources of potential revenue in an aggregate amount not to exceed $30,000,000 in any fiscal year;
(xvi) Permitted Construction Financing and Refinancing Debt of Permitted Construction Financing;
(xvii) in the case of the TRS Subsidiaries, Guarantee Obligations incurred in the ordinary course of business of the obligations TRS Subsidiaries arising under management, leasing and development agreements entered into by the TRS Subsidiaries relating to the provision of suppliersadministrative and operational, customersmanagement, franchisees and licensees leasing and/or development services, so long as the aggregate amount of the Borrower and its Subsidiaries;such Guarantee Obligations does not at any time exceed $50,000,000; and
(viiixviii) Debt Guarantee Obligations in respect of any bankers’ acceptancemortgage financing of Xxxxxxx Macquarie Office, letter LLC in respect of credit, warehouse receipt or similar facilities entered into the Cerritos Center in the ordinary course of business;an aggregate amount not to exceed $95,000,000.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries or Non Recourse Subsidiaries to create, incur, assume or suffer to existexist any Debt, any Debt other thanexcept:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(ii) Debt under the First Lien Loan Documents in an aggregate principal amount that is not in excess of an amount equal to the aggregate of (A) $780,000,000 and (B) amounts permitted under subclauses (a)(ii) and (iii) in the definition of “Permitted Refinancing”;
(iii) secured Debt under any letter of credit facility that either (A) supports a Permitted Commodity Hedge Agreement (including, without limitation, the Special LC Facility) or (b) supports working capital obligations, in an aggregate principal amount not to exceed $384,000,000 at any one time outstanding; provided that (x) any lender or letter of credit issuer of such Debt has become a party to the Intercreditor Agreement as, and has obligations of, a First Lien Secured Party thereunder and (y) such Debt shall only be secured by the Liens created by the Collateral Documents;
(iv) Debt under the MSCG Hedging Facility, the MSCG Capacity Swap Agreement or any other Permitted Commodity Hedging Agreement;
(v) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates incurred in the ordinary course of business and providing protection consistent with prudent business practice;
(vi) Debt owed to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with a wholly owned Subsidiary of the Borrower’s or any , which Debt shall (x) in the case of its Subsidiaries’ operationsDebt owed to a Loan Party, in either case; provided that such Hedge Agreements are bona fide hedging activities constitute Pledged Debt, (y) be subordinated to the Facilities and are not entered into for speculative purposeson terms acceptable to the Administrative Agent and (z) be otherwise permitted under the provisions of Section 5.02(f);
(ivvii) (A) Debt owed of a Person or Debt attaching to assets of a Person that, in either case, becomes a Loan Party or Debt attaching to assets that are acquired by the Borrower or any Loan Party as the result of a Permitted Acquisition; provided that (1) such Debt existed at the time such Person became a Loan Party or at the time such assets were acquired and, in each case, was not created in anticipation thereof, (2) such Debt is not guaranteed in any respect by the Parent, the Borrower or any other Loan Party (other than any such Person that so becomes a Loan Party) and (3) (x) the Equity Interests in such Person are pledged to the Collateral Agent to the extent required under Section 5.01(k) and (y) such Person executes a supplement to the Subsidiary Guaranty and the Security Agreement (or alternative guarantee and security arrangements in relation to the Obligations) to the extent required under Section 5.01(k); and (B) any refinancing, refunding, renewal or extension of any Debt specified in subclause (A) above; provided that (I) the principal amount of such Debt is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, (II) the direct and contingent obligors with respect to such Debt are not changed and (III) the final maturity of such refinancing, refunding, renewal or extension Debt is no earlier than the existing scheduled maturity date of the Debt being refinanced, refunded, renewed or extended;
(A) unsecured subordinated Debt of the Borrower or any Loan Party incurred to finance a Permitted Acquisition in an aggregate amount not to exceed $180,000,000 at any one time outstanding; provided that (1) such Debt is not guaranteed in any respect by any Loan Party to (other than any other Person acquired (the “Acquired Person”) as a result of such Permitted Acquisition or the Loan PartyParty so incurring such Debt) or, in the case of Debt of any Subsidiary, by the Borrower, (B2)(x) Debt owed the Borrower pledges the Equity Interests of such acquired Person to any non-Debtor Subsidiary by any Loan Party the Collateral Agent to the extent required under Section 5.01(k) and (Cy) Debt owed by any non-Debtor Subsidiary such acquired Person executes a supplement to any Loan Party the Guarantee and the Security Agreement (or alternative guarantee and security arrangements in an amount not exceeding relation to the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (xObligations) to the extent that the Administrative Agent requires that an intercompany loan required under Section 5.01(k), (3) any such Debt is evidenced by a promissory noteincurred prior to or within 90 days after such Permitted Acquisition, such promissory note shall be in form (4) both before and substance satisfactory after giving effect to the Administrative Agent, incurrence of such Debt (x) no Default or Event of Default shall have occurred and be continuing and (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall the Parent would be subject to subordination provisions in form and substance satisfactory compliance with the covenants set forth in Section 5.04 as of the most recently completed Measurement Period ending prior to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations incurrence of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement Debt for which financial statements and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted certificates required by Section 5.02(a)(iv5.03(b) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding;
(vi) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;or
Appears in 1 contract
Samples: Second Lien Credit Agreement (US Power Generating CO)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course case of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party, (B) Debt owed to Party or any nonwholly-Debtor owned Subsidiary by of any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi)Party, provided that, in each case, such Debt (xy) shall be on terms acceptable to the extent that the Administrative Agent requires that an intercompany loan is and (z) shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (yunless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(ii) in the case of each intercompany loan owed by Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) (1) Capitalized Leases not to exceed in the aggregate $5,000,000 at any time outstanding, and (2) in the case of Capitalized Leases to which any Subsidiary of a Loan Party to is a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany noteparty, subordinating the obligations Debt of such Loan Party thereunder to of the type described in clause (i) of the definition of “Debt” guaranteeing the Obligations of such Loan Party Subsidiary under such Capitalized Leases,
(C) the Surviving Debt described on Schedule 4.01(o) hereto and any Refinancing Debt that extends, refunds or refinances such Surviving Debt,
(D) Debt in respect of Hedge Agreements entered into by the Borrower and designed to hedge against fluctuations in interest rates incurred in the ordinary course of business and consistent with prudent business practice,
(E) Non-Recourse Debt the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement Agreement, and the obligations under any Customary Carve-Out Agreements related thereto,
(F) Secured Recourse Debt the incurrence of which would not result in a Default under Section 5.04 or any other Loan Documents and provision of this Agreement, and
(zG) each intercompany loan owed to Unsecured Debt the incurrence of which would not result in a Loan Party shall be pledged by that Loan Party as security Default under Section 5.04 or any other provision of this Agreement;
(iii) in the case of the Parent Guarantor,
(A) Debt under the Collateral Documents and will be subject Loan Documents,
(B) Obligations under any Customary Carve-Out Agreements related to Non-Recourse Debt permitted under Section 5.02(b)(ii)(E),
(C) Debt in respect of Completion Guaranties,
(D) Debt in respect of Environmental Indemnities,
(E) Debt under the Xxxxxxx Mac/ACC Loan; and
(F) Unsecured Debt the incurrence of which would not result in a perfected Lien granted Default under Section 5.04 or any other provision of this Agreement;
(iv) in favor the case of the Administrative Agent and the Lenders pursuant to the OrdersBorrower;
(A) Debt in respect of Completion Guaranties, and
(B) Debt in respect of Environmental Indemnities; and
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding;
(vi) endorsement endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
; provided that, notwithstanding anything herein to the contrary, (viix) no Loan Party shall, nor shall it permit any of its Subsidiaries (including without limitation the On-Campus Participating Entities) to, create, incur, assume or suffer to exist any Debt consisting relating to the On-Campus Participating Entities or the On-Campus Participating Properties after the date hereof, (y) no Unencumbered Controlled Property Subsidiary shall create, incur, assume or suffer to exist any Debt other than Debt under the Loan Documents and (z) subject to the terms of guaranty Obligations in the ordinary course of business clauses (l) and (m) of the obligations definition of suppliersUnencumbered Property Conditions and subject to compliance with the terms of Section 5.01(r), customersno Qualifying Subsidiary which is the owner or lessee of a Unencumbered Property or any interest therein shall create, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) incur, assume or suffer to exist any Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;other than Unsecured Debt permitted by this Agreement.
Appears in 1 contract
Samples: Credit Agreement (American Campus Communities Operating Partnership LP)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on in the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, case of the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;Borrower,
(ii) Debt under the Loan Documents;
(iiiA) Debt in respect of Hedge Agreements required pursuant to Section 5.01(o) or other Hedge Agreements designed to hedge against fluctuations in interest rates incurred in the ordinary course of business and providing protection to consistent with prudent business practice; provided, that the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that aggregate notional amount for all such Hedge Agreements are bona fide hedging activities and are shall not entered into for speculative purposes;exceed $75,000,000 at any time, and
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor a wholly owned Subsidiary by any Loan Party and (C) of the Borrower, which Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) shall constitute Pledged Debt, (y) shall be on subordinated terms reasonably acceptable to the extent that the Administrative Agent requires that an intercompany loan is and (z) shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance reasonably satisfactory to the Administrative Agent to and such promissory notes shall be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to pledged as security for the Obligations of such Loan Party the holder thereof under this Agreement and the other Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement;
(ii) in the case of any Subsidiary of the Borrower, Debt owed to the Borrower or to a wholly owned Subsidiary of the Borrower, provided that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall be on terms reasonably acceptable to the Administrative Agent and (z) each intercompany loan owed to a Loan Party shall be pledged evidenced by that Loan Party as security under the Collateral Documents promissory notes in form and will be subject substance reasonably satisfactory to a perfected Lien granted in favor of the Administrative Agent and such promissory notes shall be pledged as security for the Lenders Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the Orders;terms of the Security Agreement; and
(viii) the Guaranties and, in the case of the Borrower and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) (x) so long as no Default has occurred and is continuing, Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 2,000,000 at any time outstanding;, and (y) Debt assumed pursuant to a Permitted Asset Exchange and secured by Liens permitted by Section 5.02(a)(iv) not to exceed, together with any Debt assumed pursuant to clause (C)(y) below, $1,000,000,
(viC) endorsement of negotiable instruments for deposit or collection or similar transactions (x) Capitalized Leases not to exceed in the ordinary course of business;
aggregate $2,000,000 at any time outstanding, and (viiy) Capitalized Leases assumed pursuant to a Permitted Asset Exchange not to exceed, together with any Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliersassumed pursuant to clause (B)(y) above, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;$1,000,000,
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition in the case of the Borrower,
(A) Debt owed to a Wholly Owned Subsidiary of the Borrower; provided that, any such Debt owed by the Borrower to any Wholly Owned Subsidiary of the Borrower that is not a Loan Party, shall be subordinated in right of payment to the Obligations of the Borrower under the Loan Documents and shall be evidenced by, and subject to the provisions of, an intercompany note that shall be pledged to the Collateral Agent in accordance with the terms of the Security Agreement,
(B) other unsecured Debt incurred in the ordinary course of business aggregating not more than $50,000,000 at any time outstanding other than Alliance Resource Fourth Amended and Restated Credit Agreement Guaranties or other contingent obligations of the Borrower with respect to any Debt or other obligation of any Subsidiary; provided that (I) the Borrower shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the Petition financial statements most recently delivered to the Lenders pursuant to Section 5.03 and as though such Debt had been incurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the chief financial officer (or person performing similar functions) of the Borrower delivered to the Administrative Agent demonstrating such compliance and (II) such unsecured Debt ranks junior to or pari passu with the Facilities,
(C) other unsecured Debt incurred in the ordinary course of business (including, for the avoidance of doubt, any long-term Debt incurred in connection with a note offering) other than Guaranties or other contingent obligations of the Borrower with respect to any Debt or other obligation of any Subsidiary; provided that (I) the Borrower shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lenders pursuant to Section 5.03 and as though such Debt had been incurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the chief financial officer (or person performing similar functions) of the Borrower delivered to the Administrative Agent demonstrating such compliance, (II) such unsecured Debt matures, and does not begin to amortize until, more than six months after the latest Termination Date for all Facilities and (III) the covenants and other material terms of such unsecured Debt are no more restrictive than those set forth in Schedule 4.01(rthe Loan Documents, and
(i) the Senior Notes and Permitted Junior Refinancing Debt in respect thereof in an aggregate principal amount not to exceed $145,000,000 and (includingii) junior secured Debt that is issued, without limitationincurred or otherwise obtained to refinance, in whole or in part, the Indebtedness under Revolving Credit Facility in an aggregate principal amount not to exceed $300,000,000 minus the Prepetition Loan Documents and aggregate principal amount of Permitted Junior Refinancing Debt incurred pursuant to clause (i); provided that, in the Senior Subordinated Notescase of this clause (ii), (a) without giving effect to any extensions, renewals and replacements upon the incurrence of any such Debt, the Borrower shall promptly provide notice of the incurrence thereof to the Administrative Agent and the Revolving Credit Commitments shall be automatically and permanently reduced (without further action on the part of any Person) on a dollar for dollar basis by the aggregate principal amount of such Debt, (b) such Debt shall (i) be secured by Liens on (x) the Collateral that are junior to the Liens on the Collateral securing the Obligations and/or (y) property of Persons other than the Borrower or its Subsidiaries, (ii) not secured by any property or assets of any Loan Party other than the Collateral and (iii) not guaranteed by Subsidiaries of the Borrower other than the Subsidiary Guarantors, (c) such Debt does not mature or have scheduled amortization or scheduled payments of principal and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligation (other than customary offers to repurchase upon a change of control, asset sale or casualty event and customary acceleration rights after an event of default), prior to the date that is the later of (i) September 23, 2019, and (ii) 90 days after the latest Alliance Resource Fourth Amended and Restated Credit Agreement Termination Date applicable to the Facilities at the time such Debt is incurred, (d) the security agreements (if such debt is secured by the Collateral) and guarantees (if such Debt is guaranteed by one or more Subsidiaries of the Borrower) of the Borrower and its Subsidiaries relating to such Debt have terms not more favorable to the respective creditors than the terms of the Collateral Documents and the Subsidiary Guaranty (with such differences as are appropriate to reflect the nature of such junior lien Debt and any other differences reasonably satisfactory to the Administrative Agent or the Collateral Agent) and (e) if such Debt is secured by the Collateral, a Representative acting on behalf of the holders of such Debt shall have become party to, or otherwise be subject to the provisions of, the Second Lien Intercreditor Agreement;
(ii) in the case of any Subsidiary of the Borrower, (A) Debt owed to the Borrower or to a Wholly Owned Subsidiary of the Borrower; provided that (I) any such Debt owed to any Wholly Owned Subsidiary of the Borrower that is not a Loan Party by any Subsidiary of the Borrower that is a Loan Party, shall be subordinated in right of payment to the Obligations of such Loan Party under the Loan Documents and shall be evidenced by, and subject to the provisions of, an intercompany note that shall be pledged to the Collateral Agent in accordance with the terms of the Security Agreement and (II) any such Debt owed to the Borrower or to a Wholly Owned Subsidiary of the Borrower that is a Loan Party in excess of $250,000 by any Subsidiary that is not a Loan Party shall be evidenced by a promissory note that shall be pledged to the Collateral Agent in accordance with the terms of the Security Agreement, and (B) Debt in the form of a Guaranty of Debt otherwise permitted under this Section 5.02(b); and
(iii) in the case of the Borrower and its Subsidiaries,
(A) Debt under the Loan Documents;,
(iiiB) the Surviving Debt set forth on Schedule 4.01(s) hereto (other than the Senior Notes),
(C) non-recourse Debt of the Borrower and Subsidiaries incurred solely to finance capital expenditures for the development of Greenfield Projects,
(D) non-recourse Debt secured by Liens permitted by Section 5.02(a)(iv),
(E) Debt in respect of Hedge Agreements (i) Swaps incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection consistent with prudent business practice with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date aggregate value thereof not to exceed an aggregate principal amount equal $10,000,000 at any time outstanding and (ii) interest rate Swaps incurred in the ordinary course of business and consistent with prudent business practice of up to $2,500,000 250,000,000 of notional indebtedness at any time outstanding;, Alliance Resource Fourth Amended and Restated Credit Agreement
(viF) endorsement any Debt extending the maturity of, or refunding or refinancing, in whole or in part, any Surviving Debt or other Debt permitted under this Section 5.02(b) (other than the Senior Notes); provided that the principal amount of negotiable instruments for deposit such Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or collection refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or similar transactions in connection with such extension, refunding or refinancing; provided further that the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are consistent with prudent business practice and incurred in the ordinary course of business;; provided further that the repayment in whole or in part of the Advances pursuant to Section 2.04 or Section 2.06 with the proceeds of Debt incurred pursuant to Section 5.02(b)(i)(B), Section 5.02(b)(i)(C) or Section 5.02(b)(iii)(G) shall not constitute an extension, refunding or refinancing under this subclause (F),
(viiG) Capital Lease Obligations aggregating not more than $100,000,000 and other unsecured Debt consisting of guaranty Obligations incurred in the ordinary course of business business; provided, in each case, that the Borrower shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lenders pursuant to Section 5.03 and as though such Debt or Capital Lease Obligations had been incurred at the beginning of the obligations four-quarter period covered thereby, as evidenced by a certificate of suppliersthe chief financial officer (or person performing similar functions) of the Borrower delivered to the Administrative Agent demonstrating such compliance, customers, franchisees and licensees and
(H) Debt of the Borrower and its Subsidiaries;
(viii) Debt , if any, arising in respect connection with receivables securitization programs on terms and conditions customary for transactions of that type in an aggregate principal amount not to exceed $100,000,000 at any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;time outstanding.
Appears in 1 contract
Samples: Credit Agreement
Debt. Create, incur, assume Create or suffer to exist, or permit any of its Subsidiaries to create, incur, assume create or suffer to exist, any Debt other thanthan the following, provided that any Debt permitted by any clause below shall be permitted under this Section 5.02(d), notwithstanding that such Debt would not be permitted by any other clause:
(i) Prepetition Debt outstanding on owed to the Petition Date Borrower or to a Consolidated Subsidiary of the Borrower to the extent constituting an Investment permitted under Section 5.02(i), provided that all such Debt owed by a Loan Party to a Person that is not a Loan Party (x) shall be subordinated to the Obligations of such Loan Party pursuant to an intercompany subordination agreement or other arrangements reasonably satisfactory to the Agent and set forth (y) shall be evidenced by an intercompany note, and pledged to the Agent (or the DIP Term Loan Agent in Schedule 4.01(raccordance with the Intercreditor Agreement) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;as Collateral,
(ii) Debt under existing on the Loan Documents;Effective Date and described on Schedule 5.02(d), and any Permitted Refinancing thereof,
(iii) Debt secured by Liens of the type described in respect and to the extent permitted by Section 5.02(a)(iii) and (vi) in an aggregate amount not to exceed $25,000,000 at any time outstanding,
(iv) Debt of a Person existing at the time such Person is amalgamated, merged into or consolidated with the Borrower or any Subsidiary of the Borrower or becomes a Subsidiary of the Borrower; provided that such Debt was not created in contemplation of such amalgamation, merger, consolidation or acquisition,
(v) Debt arising under the Loan Documents,
(vi) [reserved],
(vii) Debt incurred by Kodak International Finance Limited, a company organized and existing under the laws of England, (x) in connection with short term working capital needs in an aggregate amount not to exceed $25,000,000 at any time outstanding and (y) consisting of Hedge Agreements incurred Agreement Obligations entered into in the ordinary course of business and providing protection to protect the Borrower and its Subsidiaries against fluctuations in currency values commodities, interest or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities exchanges rates and are not entered into for speculative purposes;permitted under Section 5.02(m),
(iv) (Aviii) Debt owed incurred by Subsidiaries organized under the laws of any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party jurisdiction outside of the United States in an aggregate amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 40,000,000 at any time outstanding;,
(viix) Debt of Subsidiaries that are not Loan Parties in respect of (a) treasury management services, clearing, corporate credit card and related services provided to any such Subsidiaries, (b) letters of credit issued for the benefit of any such Subsidiaries, (c) Hedge Agreements entered into by any such Subsidiaries and permitted under Section 5.02(m), and (d) bank guarantees with respect to such Subsidiaries, in an aggregate amount for this clause (ix) not to exceed $10,000,000 at any time outstanding,
(x) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;,
(viixi) Debt which exists or may exist under the Secured Agreements in existence from time to time,
(xii) Debt which exists or may exist under the Existing Secured Agreements in existence from time to time; provided that such Debt shall not be secured by any Lien other than a Lien permitted under Section 5.02(a)(x),
(xiii) unsecured Debt consisting of guaranty Obligations guarantees of amounts owing by customers of the Borrower under equipment and vendor financing programs in an aggregate amount not to exceed $25,000,000 at any time outstanding,
(xiv) unsecured Debt in connection with surety bonds, guarantees and letters of credit for customs and excise taxes, value added taxes, insurance and environmental liabilities, rental expenses, tenders and bids and other obligations of the like incurred in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;in an aggregate principal amount not to exceed $10,000,000 at any time outstanding,
(viiii) Debt arising under the DIP Term Loan Facility Documents in an aggregate principal amount not to exceed $848,200,000 at any time outstanding and (ii) any Permitted Refinancing thereof or of any previous Permitted Refinancing thereof,
(xvi) the Other Existing Letters of Credit, but, with respect to each Other Existing Letter of Credit, only until such time as such letter of credit expires in accordance with its terms in effect on the Original Effective Date or is otherwise cancelled or terminated,
(xvii) Guarantees (i) of any Loan Party in respect of Debt of either Borrower or any bankers’ acceptance, letter other Loan Party otherwise permitted hereunder and (ii) of credit, warehouse receipt or similar facilities entered into any Subsidiary that is not a Loan Party in the ordinary course respect of business;Debt of any other Subsidiary that is not a Loan Party otherwise permitted hereunder; and
(xviii) additional Debt not to exceed $10,000,000 at any time outstanding.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Eastman Kodak Co)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iiiii) Debt in respect of Hedge Agreements incurred in the ordinary course case of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party, (B) Debt owed to Party or any nonwholly-Debtor owned Subsidiary by of any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi)Party, provided that, in each case, such Debt (xy) shall be on terms acceptable to the extent that the Administrative Agent requires that an intercompany loan is and (z) shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory unless payable to the Administrative Agent to Borrower) by their terms be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder subordinated to the Obligations of such the Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security Parties under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersLoan Documents;
(viii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practices, and AMERICAS/2023134647.11 82
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsement endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt consisting of guaranty Obligations (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the ordinary course aggregate at any time outstanding 10% of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;a Default under Section 5.04.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iiiii) Debt in respect of Hedge Agreements incurred in the ordinary course case of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party, (B) Debt owed to Party or any nonwholly-Debtor owned Subsidiary by of any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi)Party, provided that, in each case, such Debt (xy) shall be on terms acceptable to the extent that the Administrative Agent requires that an intercompany loan is and (z) shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory unless payable to the Administrative Agent to Borrower) by their terms be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder subordinated to the Obligations of such the Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security Parties under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersLoan Documents;
(viii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the 92 ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsement endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt consisting of guaranty Obligations (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the ordinary course aggregate at any time outstanding 10% of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;a Default under Section 5.04.
Appears in 1 contract
Debt. Create, incur, assume Create or suffer to exist, or permit any of its Domestic Subsidiaries to create, incur, assume create or suffer to exist, any Debt, other than (a) Debt other than:
(i) Prepetition Debt outstanding reflected on the Petition Date Borrower’s financial statements referred to in Section 4.6 which is not being repaid with the proceeds of the Loans, and other Debt existing on the date hereof and set forth in on Schedule 4.01(r) (including7.3 hereto and any refinancings, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensionsrefundings, renewals or extensions thereof; provided, that the amount of such Debt is not increased and replacements of any such Debt;
its terms are not less advantageous to the Borrower or its Subsidiaries; (iib) Debt owed to the Lender Parties under the Loan Documents;
; (iiic) Debt owed to East West Bank pursuant to the Existing EWB Loan Documents and permitted by the Intercreditor Agreement; (d) Debt relating to Liens permitted under Sections 7.2 (f); (e) guarantees permitted by Section 7.7; (f) Debt of a Domestic Subsidiary to another wholly-owned Domestic Subsidiary or to the Borrower; (g) Capital Leases in respect an aggregate amount not to exceed $5,000,000 at any time outstanding; provided, that the Borrower has provided updated financial projects for the following four fiscal quarter period demonstrating that no violation of Hedge Agreements incurred the covenants set forth in Section 7.1 is anticipated as a result of the incurrence of any such Capital Lease; (h) obligations (contingent or otherwise) of the Borrower or any of its Domestic Subsidiaries existing or arising under any Hedging Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and providing protection not for purposes of speculation or taking a “market view” and (ii) such Hedging Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; (i) Permitted Foreign Debt; and (j) convertible debt of the Borrower, provided that (i) the Borrower and its Subsidiaries against fluctuations is in currency values or commodity prices in connection pro forma compliance with the Borrower’s or covenants contained in Section 7.1 hereof immediately prior to and would be immediately after the incurrence of any of its Subsidiaries’ operationssuch Debt (without taking into account any cure periods), in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (Cii) any such convertible Debt owed by any non-Debtor Subsidiary is subordinated to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) Obligations hereunder on terms acceptable to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding;
(vi) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;sole discretion.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries or any Excluded Subsidiary (other than any Excluded Subsidiary of the type referred to in clause (b) or (c) of the definition thereof) to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(ii) to the extent constituting Debt, Obligations under the Contract Support Documents; provided that at no time shall any such Obligations constitute Contract Support First Lien Advances to the extent that the outstanding principal amount of such Contract Support First Lien Advances when taken together with the Maximum First Lien Claims under any Permitted Commodity Hedge and Power Sale Agreement then in effect exceed $475,000,000;
(iii) secured Debt under any letter of credit facility (including, without limitation, the Special L/C Facility, any Special L/C Incremental Facility, any Debt incurred under the First Lien Incremental Facility to be used for such purposes and any Synthetic L/C Facility) that supports Obligations of the Loan Parties under the Purchase Agreement, Permitted Commodity Hedge and Power Sale Agreements or other Obligations incurred in connection with the operation of the Projects, in an aggregate principal amount not to exceed $650,000,000 at any one time outstanding; provided that (A) the lender(s) or letter of credit issuer(s) (or agent on behalf of such lender(s) or letter of credit issuer(s)) of such Debt are party to the Intercreditor Agreement as, and shall have the obligations of a First Lien Secured Party or Second Lien Secured Party thereunder, (B) such Debt shall only be secured by the Liens created by the Collateral Documents or the First Lien Collateral Documents, and (C) such Debt shall not mature earlier than the Termination Date;
(iv) secured Debt to finance the acquisition of the Ontelaunee Project (including any Debt under any First Lien Incremental Facility or Special L/C Incremental Facility to be used for such purposes and any Ontelaunee Credit Increase) in an aggregate amount not to exceed $165,000,000 in the aggregate; provided that (A) the lender(s) or letter of credit issuer(s) (or agent on behalf of such lender(s) or letter of credit issuer(s)) of such Debt are party to the Intercreditor Agreement as, and shall have the obligation of, either a First Lien Secured Party or Second Lien Secured Party thereunder; (B) such Debt shall only be secured by the Liens created by the Collateral Documents or the First Lien Collateral Documents; (C) such Debt shall not mature earlier than (1) May 4, LSP Gen Finance Second Lien Credit Agreement 2013, if such Debt is secured by the Liens created by the First Lien Collateral Documents or (2) the Maturity Date, if such Debt is secured by the Liens created by the Collateral Documents; and (D) the Borrower shall have received a Ratings Reaffirmation;
(v) secured Debt in the form of term loans or revolving credit facilities (including any Debt under any First Lien Incremental Facility or Special L/C Incremental Facility to be used for such purposes and any General Working Capital Credit Increase) in an aggregate amount not to exceed $100,000,000 in the aggregate; provided that (A) the lender(s) or letter of credit issuer(s) (or agent on behalf of such lender(s) or letter of credit issuer(s)) of such Debt are party to the Intercreditor Agreement as, and shall have the obligation of, either a First Lien Secured Party or Second Lien Secured Party thereunder, (B) such Debt shall only be secured by the Liens created by the Collateral Documents or the First Lien Collateral Documents (as defined in the Intercreditor Agreement), (C) such Debt shall not mature earlier than the Termination Date, and (D) the Borrower shall have received a Ratings Reaffirmation;
(vi) Debt under the First Lien Loan Documents in an aggregate principal amount that is not in excess of $1,090,000,000 plus the amount of any Debt incurred under the First Lien Loan Documents to the extent such Debt is incurred pursuant to clause (iii), (iv) or (v);
(vii) to the extent constituting Debt, obligations under (A) Contractual Obligations in effect as of the date hereof to the extent not constituting Debt for Borrowed Money and (B) Commodity Hedge and Power Sale Agreements to the extent permitted under Section 5.02(l);
(viii) Debt secured by Liens permitted by clause (q) of the definition of “Permitted Liens” not to exceed in the aggregate, when taken together with any Debt permitted to be incurred pursuant to Section 5.02(b)(ix), $75,000,000 at any time outstanding;
(ix) Capitalized Leases not to exceed in the aggregate, when taken together with any Debt permitted to be incurred pursuant to Section 5.02(b)(viii), $75,000,000 at any time outstanding;
(x) South Bay Lease Obligations; provided that the Borrower shall have taken the actions contemplated by Section 3.01(c)(ii);
(xi) to the extent constituting Debt, payment obligations under Hedge Agreements designed to hedge against fluctuations in interest rates in respect of Hedge Agreements the Facility and First Lien Obligations incurred in the ordinary course of business and providing protection to the Borrower consistent with prudent business practice (it being acknowledged and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or agreed that any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;the purpose of complying with Section 5.01(o) above shall be deemed to be permitted Debt under this clause (xi)); LSP Gen Finance Second Lien Credit Agreement
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (Bxii) Debt owed to any nonLoan Party, which Debt shall (A) constitute Pledged Debt or Pledged Parent Debt, (B) be on terms reasonably acceptable to the Administrative Agent and (C) be otherwise permitted under the provisions of Section 5.02(f);
(xiii) in the case of any Non-Debtor Recourse Subsidiary (including any Acquisition Subsidiary), Non-Recourse Debt; provided that (A) before and after giving effect to the incurrence of such Non-Recourse Debt, no Default or Event of Default shall have occurred and be continuing, and (B) any Working Capital Letter of Credit issued for the benefit of such Group II Portfolio Company shall be terminated, returned for cancellation or cash collateralized in an amount equal to 102.5% of the Available Amount thereof prior to or simultaneously with the incurrence of such Non-Recourse Debt;
(A) Debt of a Person or Debt attaching to assets of a Person that, in either case becomes a Subsidiary of the Borrower and is a Guarantor hereunder or Debt attaching to assets that are acquired by the Borrower or any Guarantor as a result of a Permitted Acquisition; provided that (1) such Debt existed at the time such Person became a Subsidiary of the Borrower or at the time such assets were acquired and, in each case, was not created in anticipation thereof, (2) such Debt is not guaranteed in any respect by any Loan Party (other than any such Person that becomes a Guarantor hereunder) and (C3) (x) the Equity Interests in such Person are or will be pledged to the Second Lien Collateral Agent to the extent required under Section 5.01(q) and (y) all other steps required to be taken in connection with the granting of a Lien over the Property (other than Excluded Property) of such Person pursuant to Section 5.01(q) shall have been or will be taken; and (B) any refinancing, refunding, renewal or extension of any Debt owed specified in clause (A); provided that (I) the principal amount of such Debt is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, (II) the direct and contingent obligors with respect to such Debt are not changed and (III) the final maturity of such refinancing, refunding, renewal or extension Debt is no earlier than the existing scheduled maturity date of the Debt being refinanced, renewed or extended;
(A) unsecured subordinated Debt of the Borrower or any Guarantor incurred to finance a Permitted Acquisition in an aggregate amount not to exceed $150,000,000 at any one time outstanding; provided that (1) such Debt is not guaranteed in any respect by any non-Debtor Subsidiary to any Loan Party (other than any Person acquired (the “Acquired Person”) as a result of such Permitted Acquisition or the Loan Party so incurring such Debt) or, in an amount not exceeding the amount case of any Investment made Debt of any Guarantor, by the Borrower, (2)(x) the Borrower pledges or will pledge the Equity Interests of such Acquired Person to the Second Lien Collateral Agent to the extent required under extent required under Section 5.01(q) and (y) all other steps required to be taken in connection with the granting of a Lien over the Property (other than Excluded Property) of such Acquired Person pursuant toto Section 5.01(q) shall have been or will be taken, (3) any such Debt is incurred prior to or LSP Gen Finance Second Lien Credit Agreement within 90 days after such Permitted Acquisition, (4) both before and permitted under, Section 5.02(e)(vi), provided that, after giving effect to the incurrence of such Debt (x) no Default or Event of Default shall have occurred and be continuing and (y) the Borrower would be in compliance with the Financial Covenants as of the most recently completed Measurement Period ending prior to the extent that incurrence of such Debt for which financial statements and certificates required by Section 5.03(b) or 5.03(c) were required to be delivered, after giving pro forma effect to the Administrative Agent requires that an intercompany loan incurrence of such Debt and the related Permitted Acquisition and to any other event occurring after such Measurement Period as to which pro forma recalculation is evidenced by a promissory note, appropriate as if such promissory note shall be in form incurrence of Debt and substance the related Permitted Acquisition had occurred as of the first day of such Measurement Period and (5) such Debt is subordinated to the Advances on either customary market terms at the time such Debt is incurred or otherwise on terms reasonably satisfactory to the Administrative Agent; and (B) any refinancing, refunding, renewal or extension of any Debt specified in clause (A); provided that (I) the principal amount of such Debt is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, (yII) each intercompany loan owed by a Loan Party the direct and contingent obligors with respect to a non-Debtor Subsidiary shall be subject such Debt are not changed, (III) the final maturity of such refinancing, refunding, renewal or extension Debt is no earlier than the existing scheduled maturity date of the Debt being refinanced, renewed or extended, and (IV) such Debt is subordinated to subordination provisions in form and substance the Advances on either customary market terms at the time such Debt is incurred or otherwise on terms reasonably satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersAgent;
(vxvi) Debt secured by Liens arising from agreements of the Loan Party, any Guarantor or any of their Subsidiaries providing for indemnification, adjustment of purchase price, earn-out, non-complete, consulting, deferred compensation or other similar obligations in connection with any Permitted Acquisition or Asset Sale permitted by in accordance with Section 5.02(a)(iv5.02(e); provided that (A) such Debt is not reflected on the balance sheet of the Borrower, such Guarantor or such Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for the purposes of this clause (A)) and Capitalized Leases arising after (B) in the Closing Date case of any Asset Sale, the maximum assumable liability in respect of all such Debt shall at no time exceed the gross proceeds, including noncash proceeds (the fair market value of such noncash proceeds being measured at the time received and without giving effect to any subsequent change in value), actually received by the Borrower, such Guarantor or such Subsidiary in connection with such Asset Sale;
(xvii) other unsecured Debt in an aggregate amount not to exceed an aggregate principal amount equal to $2,500,000 35,000,000 at any one time outstanding;
(vixviii) endorsement to the extent constituting Debt, Debt in respect of negotiable instruments for deposit performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees, indemnification obligations, obligations to pay insurance premiums, take or collection or pay obligations and similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations obligations incurred in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;not in connection with Debt for Borrowed Money; LSP Gen Finance Second Lien Credit Agreement
(viiixix) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of businessbusiness and not in respect of Hedge Agreements or Permitted Commodity Hedge and Power Sale Agreements;
(xx) Debt incurred to Refinance the Working Capital Facility and any Debt permitted to be incurred under Section 5.02(b)(v) (a “Permitted Working Capital Refinancing”); provided that (A) the aggregate principal amount of such Debt does not exceed the sum of (1) the aggregate amount of the commitments in respect of the Working Capital Facility immediately prior to such refinancing plus (2) an amount, when taken together with any Debt outstanding pursuant to Section 5.02(b)(v), not to exceed $100,000,000 plus (3) the amount of any accrued and unpaid interest in respect of such outstanding principal amount plus (4) the amount of any reasonable fees and expenses incurred in connection with such Refinancing, (B) the lenders (or agents on behalf of the lenders) of such Debt have become a party to the Intercreditor Agreement as, and have the obligations of, the First Lien Secured Parties or the Second Lien Secured Parties thereunder, (C) the maturity date of such Debt is no earlier than the Termination Date, (D) such Permitted Working Capital Refinancing shall only be secured by the Liens created by the Collateral Documents or the First Lien Collateral Documents, and (E) to the extent that the aggregate principal amount of such Debt exceeds the sum of the aggregate principal amount of the commitments in respect of the Working Capital Facility immediately prior to such refinancing plus the amount of any accrued and unpaid interest in respect of such outstanding principal amount the amount of any reasonable fees and expenses incurred in connection with such Refinancing, the Borrower shall have received a Ratings Reaffirmation; and
Appears in 1 contract
Debt. CreateNo Loan Party shall, incur, assume or suffer to exist, or nor shall it permit any of its Restricted Subsidiaries to createto, directly or indirectly, incur, assume create, assume, or suffer permit to existexist any Debt, any Debt other thanexcept:
(ia) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such DebtObligations;
(iib) existing Debt under the Loan Documentsdescribed on Schedule 8.1;
(iiic) Purchase Money Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed Lease Obligations in an aggregate principal amount equal at the time incurred, together with the principal amount outstanding of all other Debt incurred pursuant to this clause (c), not to exceed the greater of (i) $2,500,000 and (ii) 5% of the Borrowing Base then in effect at any time outstanding;
(vid) endorsement of negotiable instruments for deposit or collection Debt associated with (i) worker’s compensation claims, unemployment insurance laws or similar transactions legislation, and (ii) deposits of cash or Cash Equivalents made to secure bids, tenders, the performance of statutory obligations, surety, stay, customs and appeal bonds to which Borrower or any Restricted Subsidiary is party in connection with the operation of its Properties in the ordinary course of business;
(viie) unsecured intercompany Debt (i) owed by any Loan Party to another Loan Party, (ii) owed by any Loan Party to a Restricted Subsidiary that is not a Loan Party; provided that such Debt (A) shall be subordinated to the Obligations in a manner reasonably satisfactory to Administrative Agent and (B) does not require the payment of cash interest by any Loan Party to a non-Loan Party, (iii) owed by a Restricted Subsidiary that is not a Loan Party to a Loan Party; provided that such Debt (A) is permitted under Section 8.5 and (B) shall be evidenced by a promissory note pledged and delivered to Administrative Agent pursuant to the Security Documents and (iv) owed by a Restricted Subsidiary that is not a Loan Party to another Restricted Subsidiary that is not a Loan Party;
(f) Guarantees by any Loan Party or Restricted Subsidiary of Debt not otherwise prohibited pursuant to this Section 8.1; provided that (A) no Guarantee in respect of any Permitted Additional Debt shall be permitted unless the guaranteeing party shall also be a Guarantor and (B) if the Debt being guaranteed is subordinated to the Obligations, such guarantee shall be subordinated to the guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Debt;
(i) Debt consisting associated with financing of guaranty Obligations insurance premiums in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viiiii) Debt in connection with the endorsement of negotiable instruments and other obligations in respect of any bankers’ acceptancecash management services, letter of creditnetting services, warehouse receipt or overdraft protection and similar facilities entered into arrangements, in each case incurred in the ordinary course of business;
(h) Debt arising from the honoring by a bank or other financial institution of a check, draft, payment order or other debit drawn, presented or issued against insufficient funds in the ordinary course of business so long as such Debt is extinguished within three (3) Business Days of its incurrence;
(i) any unsecured senior or unsecured senior subordinated Debt of Borrower or any Restricted Subsidiary and guarantees thereof by Borrower or any Restricted Subsidiary; provided that, in each case: (i) such Debt shall solely be comprised of unsecured senior or unsecured senior subordinated Debt, (ii) such Debt shall not provide for any amortization of principal or any scheduled prepayments of principal on any date prior to 180 days after the Maturity Date in effect at the time of incurrence or issuance, (iii) such Debt shall not contain a scheduled maturity date that is earlier than 180 days after the Maturity Date in effect at the time of incurrence or issuance, (iv) such Debt (or the documents governing such Debt) shall not contain (A) financial maintenance covenants that are more restrictive with respect to Borrower and its Restricted Subsidiaries than the financial maintenance covenants in this Agreement; provided, that, (1) the marginal difference between the financial maintenance covenants under such Debt and the financial maintenance covenants in this Agreement shall be approved by the written consent of the Majority Lenders in their reasonable discretion and (2) in the event such Debt contains a “net leverage ratio” maintenance level, the Lenders shall be deemed to have approved a marginal difference that is at least 0.50:1.00 higher than the then-effective maintenance level for the Consolidated Net Leverage Ratio under this Agreement, (B) covenants (other than financial maintenance covenants) or events of default, taken as a whole, that are more restrictive or onerous with respect to Borrower and the Restricted Subsidiaries than the covenants (other than financial maintenance covenants) and events of default in this Agreement (as determined in good faith by senior management of Borrower), (C) restrictions on the ability of Borrower or any of its Subsidiaries to guarantee the Obligations or to pledge assets as collateral security for the Obligations, (D) any mandatory prepayment or Redemption provisions which would require a mandatory prepayment or Redemption of such Debt (other than provisions requiring Redemption or offers to Redeem in connection with asset sales or a “change in control”) or (E) any prohibition on the prior repayment of any Obligations, (v) immediately after giving effect to the incurrence or issuance of such other Debt, the application of the proceeds thereof, and any automatic reduction of the Borrowing Base pursuant to Section 2.8(f) on account thereof and on the date of such incurrence or issuance of such Debt: (A) Borrower shall be in pro forma compliance with each of the Financial Covenants, in each case, for the Test Period most recently ended for which financial statements are available and (B) no Event of Default or Borrowing Base Deficiency shall exist and (vi) the Borrowing Base shall automatically be reduced on the date of the incurrence or issuance of such Debt to the extent (if any) required by Section 2.8(f); and
(j) other Debt in an aggregate principal amount at the time incurred, together with the principal amount outstanding of all other Debt incurred pursuant to this clause (j), not to exceed the greater of (i) $5,000,000 and (ii) 7.5% of the Borrowing Base then in effect at any time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Peak Resources LP)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on in the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, case of the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;Borrower,
(ii) Debt under the Loan Documents;
(iiiA) Debt in respect of Hedge Agreements required pursuant to Section 5.01(o) or other Hedge Agreements designed to hedge against fluctuations in interest rates incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection consistent with the Borrower’s or any of its Subsidiaries’ operations, in either caseprudent business practice; provided that the aggregate notional amount for all such Hedge Agreements are bona fide hedging activities and are shall not entered into for speculative purposes;exceed $75,000,000 at any time, and
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor a wholly owned Subsidiary by any Loan Party and (C) of the Borrower, which Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) shall constitute Pledged Debt, (y) shall be on subordinated terms reasonably acceptable to the extent that the Administrative Agent requires that an intercompany loan is and (z) shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance reasonably satisfactory to the Administrative Agent to and such promissory notes shall be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to pledged as security for the Obligations of such Loan Party the holder thereof under this Agreement and the other Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement;
(ii) in the case of any Subsidiary of the Borrower, Debt owed to the Borrower or to a wholly owned Subsidiary of the Borrower, provided that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall be on terms reasonably acceptable to the Administrative Agent and (z) each intercompany loan owed to a Loan Party shall be pledged evidenced by that Loan Party as security under the Collateral Documents promissory notes in form and will be subject substance reasonably satisfactory to a perfected Lien granted in favor of the Administrative Agent and such promissory notes shall be pledged as security for the Lenders Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the Orders;terms of the Security Agreement; and
(viii) the Guaranties and, in the case of the Borrower and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) (x) so long as no Default has occurred and is continuing, Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 3,000,000 at any time outstanding;, and (y) Debt assumed pursuant to a Permitted Asset Exchange and secured by Liens permitted by Section 5.02(a)(iv) not to exceed, together with any Debt assumed pursuant to clause (C)(y) below, $1,000,000,
(viC) endorsement of negotiable instruments for deposit or collection or similar transactions (x) Capitalized Leases not to exceed in the ordinary course of business;
aggregate $3,000,000 at any time outstanding, and (viiy) Capitalized Leases assumed pursuant to a Permitted Asset Exchange not to exceed, together with any Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliersassumed pursuant to clause (B)(y) above, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;$1,000,000,
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition in the case of any Subsidiary of the Borrower, Debt outstanding owed to the Borrower or to a wholly owned Subsidiary of the Borrower, provided that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall be on terms acceptable to the Petition Date Administrative Agent and set forth (z) shall be evidenced by promissory notes in Schedule 4.01(r) (including, without limitation, form and substance satisfactory to the Indebtedness Administrative Agent and such promissory notes shall be pledged as security for the Obligations under the Prepetition Loan Documents of the holder thereof and delivered to the Senior Subordinated NotesCollateral Agent pursuant to the terms of the Security Agreement; and
(ii) without giving effect to any extensions, renewals and replacements in the case of any such Debtthe Loan Parties;
(iiA) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party Capitalized Leases and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv5.02(a)(iv)(2) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 6,000,000 at any time outstanding;
(viC) endorsement the Surviving Debt;
(D) indorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viiE) Debt consisting of guaranty Obligations in under the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its SubsidiariesPre-Petition 1997 Credit Agreement;
(viiiF) Debt under Senior Notes and the Senior Subordinated Notes;
(G) Debt extending the maturity of, or refunding or refinancing, in respect whole or in part, Debt described in clauses (B), (C), (E), and (F) above, provided that (1) the terms of any bankers’ acceptancesuch extending, letter refunding or refinancing Debt, and of credit, warehouse receipt or similar facilities any agreement entered into and of any instrument issued in connection therewith, are otherwise permitted by the Loan Documents, (2) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lender Parties than the terms of any agreement or instrument governing the Debt being extended, refunded or refinanced and the interest rate applicable to such extending refunding or refinancing Debt does not exceed the then applicable market interest rate, and (3) in the ordinary course case of businessany Surviving Debt, the principal amount of such Surviving Debt shall not be increased above the principal amount, and interest accrued to the date of refinancing, thereof outstanding immediately prior to such extension, refunding or refinancing;
(H) Unsecured Debt in an aggregate outstanding principal amount not to exceed at any time $2,500,000;
(I) Debt incurred in connection with the Credit Card Program; and
(J) Subordinated Debt not to exceed in the aggregate $50,000,000.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Stage Stores Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course case of business and providing protection to each Loan Party (other than the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operationsParent Guarantor), in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, Party (Bother than the Parent Guarantor) Debt owed to or any nonwholly-Debtor owned Subsidiary by of any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi)Party, provided that, in each case, such Debt (xy) shall be on terms acceptable to the extent that the Administrative Agent requires that an intercompany loan is and (z) shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations of the Loan Parties under the Loan Documents;
(ii) in the case of any Subsidiary of a Loan Party, Debt owed to any Loan Party (other than the Parent Guarantor) or to any wholly-owned Subsidiary of any Loan Party, provided that, in each case, such Debt (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject on terms acceptable to subordination provisions the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent Agent, which promissory notes shall (unless payable to the Borrower) by their terms be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder subordinate to the Obligations of such the Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security Parties under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersLoan Documents;
(viii) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 25,000,000 at any time outstanding;,
(vi1) endorsement of negotiable instruments for deposit or collection or similar transactions Capitalized Leases not to exceed in the ordinary course of business;
aggregate $50,000,000 at any time outstanding, and (vii2) Debt consisting of guaranty Obligations in the ordinary course case of business Capitalized Leases to which any Subsidiary of a Loan Party is a party, Debt of such Loan Party of the obligations of suppliers, customers, franchisees and licensees type described in clause (i) of the Borrower and its Subsidiaries;
(viii) Debt in respect definition of any bankers’ acceptance, letter "DEBT" guaranteeing the Obligations of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;such Subsidiary under such Capitalized Leases,
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit in any of its Subsidiaries to create, incur, assume manner become or suffer to existbe liable in respect of, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(iia) Debt under the Loan Documents;
(iiib) Debt in respect described in, or incurred under commitments described in, Schedule 6.02, and any Debt refinancing, extending, renewing or replacing any such Debt to the extent the principal amount of Hedge Agreements incurred in such refinancing, extending, renewing or replacing Debt does not exceed the ordinary course principal amount of business and providing protection such Debt being refinanced, extended, renewed or replaced;
(c) unsecured Debt of the Borrower or any Subsidiary owing to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either caseother Subsidiary; provided that (i) any such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by of any Loan Party owing to any other Subsidiary that is not a Loan PartyParty is subordinated to the obligations of such Loan Party hereunder on terms in form and substance reasonably acceptable to the Administrative Agent, (Bii) any such Debt owed to of any non-Debtor Subsidiary by any that is not a Loan Party owing to a Loan Party is permitted under Section 6.05 and (Ciii) if any such Debt owed by of any non-Debtor Subsidiary to any that is not a Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) owing to the extent that the Administrative Agent requires that an intercompany loan a Loan Party is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory pledged to the Administrative Agent to be contained in for the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor benefit of the Administrative Agent and the Lenders pursuant to the OrdersSecured Parties;
(vd) Guarantees of the Borrower or any Subsidiary in respect of Debt secured by Liens of the Borrower or any Wholly Owned Subsidiary permitted hereunder;
(e) Capital Leases incurred to make Capital Expenditures permitted pursuant to Section 6.14;
(f) Capital Leases incurred in connection with any Sale and Leaseback Transaction permitted by Section 5.02(a)(iv6.13(a)(ii);
(g) and Capitalized Leases arising after the Closing Date not to exceed Debt in an aggregate principal amount equal not to exceed $2,500,000 20,000,000 at any time outstanding; provided that the aggregate principal amount of any such Debt that is secured may not exceed $5,000,000 at any time outstanding;
(vih) endorsement Debt incurred in connection with the construction or development of negotiable instruments any Governmental Fueling Facility; provided the aggregate principal amount of such Debt does not exceed $20,000,000 at any time outstanding for deposit or collection or similar transactions all Governmental Fueling Facilities in the ordinary course of businessConstruction Phase;
(viii) Debt consisting of guaranty Obligations in the ordinary course financing of business insurance premiums; provided that the final scheduled maturity of such Debt shall not exceed one (1) year after the obligations date of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiariesincurrence thereof;
(viiij) Debt in respect incurred solely for the purpose of financing the acquisition, construction or improvement of any bankers’ acceptancefixed or capital assets, letter including Capital Leases and any Debt assumed in connection with the acquisition of creditany such assets; provided that (i) the principal amount of such Debt does not exceed the cost of acquiring, warehouse receipt constructing or similar facilities entered into in improving such fixed or capital assets, (ii) the ordinary course aggregate principal amount of business;Debt permitted under this clause (j) shall not exceed $20,000,000 at any time outstanding and
Appears in 1 contract
Debt. Create, incur, assume Create or suffer to exist, or permit any of its Subsidiaries to create, incur, assume create or suffer to exist, any Debt other thanthan the following, provided that any Debt permitted by any clause below shall be permitted under this Section 5.02(d), notwithstanding that such Debt would not be permitted by any other clause:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor the Company or to a Consolidated Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding of the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi)Company, provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, all such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan Debt owed by a Loan Party to a non-Debtor Subsidiary Person that is not a Loan Party shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder subordinated to the Obligations of such Loan Party under this Agreement pursuant to an intercompany subordination agreement or other arrangements reasonably satisfactory to the Agent,
(ii) Debt existing on the Petition Date and described on Schedule 5.02(d) hereto (the other Loan Documents “Existing Debt”), and any Permitted Refinancing thereof,
(iii) Debt secured by Liens of the type described in and to the extent permitted by Section 5.02(a)(iii) and (zvi) each intercompany loan owed in an aggregate amount not to exceed $25,000,000 at any time outstanding,
(iv) Debt of a Loan Party shall be pledged by that Loan Party as security under Person existing at the Collateral Documents and will be subject to a perfected Lien granted in favor time such Person is amalgamated, merged into or consolidated with the Company or any Subsidiary of the Administrative Agent and Company or becomes a Subsidiary of the Lenders pursuant to the Orders;Company; provided that such Debt was not created in contemplation of such amalgamation, merger, consolidation or acquisition,
(v) Debt secured arising under the Loan Documents,
(vi) [reserved],
(vii) Debt incurred by Liens permitted by Section 5.02(a)(ivKodak International Finance Limited, a company organized and existing under the laws of England, (x) and Capitalized Leases arising after the Closing Date in connection with short term working capital needs in an aggregate amount not to exceed $25,000,000 at any time outstanding and (y) consisting of Hedge Agreement Obligations entered into in the ordinary course of business to protect the Company and its Subsidiaries against fluctuations in commodities, interest or exchanges rates,
(viii) Debt incurred by Subsidiaries organized under the laws of any jurisdiction outside of the United States or Canada in an aggregate principal amount equal not to exceed $2,500,000 20,000,000 at any time outstanding;,
(viix) Debt of Subsidiaries that are not Loan Parties in respect of (a) treasury management services, clearing, corporate credit card and related services provided to any such Subsidiaries, (b) letters of credit issued for the benefit of any such Subsidiaries, (c) Hedge Agreements entered into by any such Subsidiaries, and (d) bank guarantees with respect to such Subsidiaries, in an aggregate amount not to exceed $10,000,000 at any time outstanding,
(x) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;, Debt which exists or may exist under the Secured Agreements in existence from time to time,
(viixi) Debt which exists or may exist under the Existing Secured Agreements in existence from time to time; provided that such Debt shall not be secured by any Lien other than a Lien permitted under Section 5.02(a)(xi),
(xii) unsecured Debt consisting of guaranty Obligations guarantees of amounts owing by customers of the Company under equipment and vendor financing programs in an aggregate amount not to exceed $25,000,000 at any time outstanding,
(xiii) unsecured Debt in connection with surety bonds, guarantees and letters of credit for customs and excise taxes, value added taxes, insurance and environmental liabilities, rental expenses, tenders and bids and other obligations of the like incurred in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;in an aggregate principal amount not to exceed $10,000,000 at any time outstanding,
(viiixiv) Debt [reserved],
(xv) the Other Existing Letters of Credit, but, with respect to each Other Existing Letter of Credit, only until such time as such letter of credit expires in accordance with its terms in effect on the Effective Date or is otherwise cancelled or terminated,
(xvi) Guarantees (i) of any Loan Party in respect of Debt of either Borrower or any bankers’ acceptance, letter other Loan Party otherwise permitted hereunder and (ii) of credit, warehouse receipt or similar facilities entered into any Subsidiary that is not a Loan Party in the ordinary course respect of business;Debt of any other Subsidiary that is not a Loan Party otherwise permitted hereunder; and
(xvii) additional Debt not to exceed $10,000,000 at any time outstanding.
Appears in 1 contract
Samples: Debt Agreement (Eastman Kodak Co)
Debt. CreateNone of the Loan Parties shall at any time create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other than:
(i) Prepetition Debt outstanding on in the Petition Date and set forth in Schedule 4.01(rcase of Universal:
(A) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Junior Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(B) the Stirling Notes; and
(C) Debt under the Loan Documents.
(ii) in the case of the Borrower:
(A) the Subordinated Notes;
(B) Debt owed to any Subsidiary of the Borrower; provided, however, that such obligation (1) is subject to an intercompany subordination agreement in substantially the form of Exhibit H hereto (an "INTERCOMPANY SUBORDINATION AGREEMENT") executed by the Borrower and each such Subsidiary and (2) is evidenced by a promissory note in form and substance reasonably satisfactory to the Agent, which shall be pledged under the terms of the Collateral Documents to the Agent, on behalf of the Secured Parties, immediately upon its creation; and
(C) any promissory note delivered in connection with any earn-out payment as contemplated by Section 3.02 of the AmPac Stock Purchase Agreement; provided that (1) any such promissory note shall be on terms and conditions acceptable to the Agent and (2) any such promissory note shall have been extinguished within 10 days of its issuance.
(iii) in the case of the Borrower and its Subsidiaries,
(A) Capitalized Leases and Debt secured by Liens permitted by Section 5.02(a)(v) not to exceed in the aggregate $8,000,000 at any time outstanding and the amortization of which shall not exceed $1,600,000 in any 12-Fiscal Month period,
(B) Debt under the Loan Documents;
(iiiC) Debt owed (I) to the Borrower by any wholly owned U.S. Subsidiary or any wholly owned Canadian Subsidiary that is a Loan Party, (II) to Ex-Cell by Ex-Cell Bentonville, and (III) to the Borrower or any Subsidiary and constituting Investment allowed pursuant to Section 5.02(f)(v)(D); provided, however, that such Debt shall be evidenced by a promissory note in respect form and substance reasonably satisfactory to the Agent, which shall be pledged under the terms of Hedge Agreements incurred in the ordinary course Collateral Documents to the Agent, on behalf of business and providing protection to the Secured Parties, immediately upon its creation;
(D) Surviving Debt identified on Part (ii)(A) of Schedule 3.01(h) of the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(ivE) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding;
(vi) endorsement indorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viiF) other unsecured Debt not otherwise permitted under this Section 5.02(b) aggregating not more than $1,000,000 at any one time outstanding; and
(G) Debt consisting of guaranty Obligations in incurred by Ex-Cell under the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;Ex-Cell Program Agreement.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(iia) Debt under the Loan Documents;
(iiii) Debt the Senior Notes in respect an aggregate principal amount of Hedge Agreements incurred $500 million, the Senior Subordinated Notes in an aggregate principal amount of $850 million, the ordinary course of business Senior Note Guarantees and providing protection to the Borrower Senior Subordinated Note Guarantees (including any notes and its Subsidiaries against fluctuations guarantees issued in currency values or commodity prices exchange therefor in accordance with the registration rights documents entered into in connection with the Borrower’s or any issuance of its Subsidiaries’ operationsthe Senior Notes, in either case; provided that such Hedge Agreements are bona fide hedging activities the Senior Subordinated Notes, the Senior Note Guarantees and are not entered into for speculative purposesthe Senior Subordinated Note Guarantees) and (ii) Debt existing on the Closing Date and described on Schedule 7.2(b) hereto;
(ivc) Debt of the Borrower in respect of Swap Agreements (A) existing on the date of this Agreement and described in Schedule 7.2(b) hereto or (B) entered into from time to time after the date of this Agreement with counter parties that are Lenders at the time such Swap Agreement is entered into (or Affiliates of such Lender at such time); provided that, in all cases under this clause (c), all such Swap Agreements shall not be speculative in nature (including, without limitation, with respect to the term and purpose thereof);
(d) Debt owed by any Loan Party of (A) the Borrower owing to any other Loan Party, and (B) Debt owed any of the Subsidiaries owing to the Borrower or any non-Debtor Subsidiary by any other Loan Party and (C) to the extent permitted under Section 7.6(h); provided that any such Debt shall be evidenced by the Intercompany Note and, in the case of a loan or advance by a Loan Party, pledged by such Loan Party as Collateral pursuant to the Security Documents; provided, further, that such Debt of, or owed to, a Subsidiary that is not a Guarantor need not be evidenced by the Intercompany Note so long as the net amount of such Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount all such Subsidiaries not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, Intercompany Note does not exceed $50,000,000;
(ye) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to Debt incurred after the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations date of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens expressly permitted by under Section 5.02(a)(iv7.1(d) and Capitalized Leases arising after the Closing Date not to exceed in an aggregate principal amount equal not to exceed, when aggregated with the principal amount of all Debt incurred under clause (f) of this Section 7.2, $2,500,000 135,000,000 or 7.5% of the Consolidated Tangible Assets of the Borrower and its Subsidiaries any time outstanding;
(f) Capitalized Leases incurred after the date of this Agreement which, when aggregated with the principal amount of all Debt incurred under clause (e) of this Section 7.2, do not exceed $135,000,000 or 7.5% of the Consolidated Tangible Assets of the Borrower and its Subsidiaries at any time outstanding;
(vig) Contingent Obligations of (A) the Borrower guaranteeing any obligations of any of the Loan Parties, (B) any Subsidiary of the Borrower guaranteeing any obligations of the Borrower or a Loan Party, (C) any Subsidiary that is not a Loan Party guaranteeing any obligations of any other Subsidiary that is not a Loan Party (it being understood that if such Subsidiary shall become a Loan Party then such Contingent Obligation shall no longer be permitted by this clause) and (D) subject to Section 7.6(h), Loan Parties guaranteeing any obligations of any Subsidiary that is not a Loan Party; provided that each such primary obligation is otherwise permitted under the terms of the Loan Documents;
(h) unsecured Debt not otherwise permitted under this Section 7.2 in an aggregate amount not to exceed $175,000,000 at any time outstanding;
(i) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viij) Debt consisting comprised of guaranty Obligations indemnities given by the Borrower or any of its Subsidiaries, or guarantees or other similar undertakings by the Borrower or any of its Subsidiaries entered into in the ordinary course of business lieu thereof, in favor of the obligations purchaser of suppliers, customers, franchisees property and licensees assets of the Borrower and its SubsidiariesSubsidiaries being sold, leased, transferred or otherwise disposed of in accordance with this Agreement and covering liabilities incurred by the Borrower or its applicable Subsidiary in respect of such property and assets prior to the date of consummation of the sale, lease, transfer or other disposition thereof, which indemnities, guarantees or undertakings are required under the terms of the documentation for such sale, lease, transfer or other disposition;
(viiik) Debt comprised of liabilities or other obligations assumed or retained by the Borrower or any of its Subsidiaries from Subsidiaries of the Borrower that are, or all or substantially all of the property and assets of which are, sold, leased, transferred or otherwise disposed of pursuant to Section 7.5(c) or (f); provided that such liabilities or other obligations were not created or incurred in contemplation of the related sale, lease, transfer or other disposition;
(l) unsecured Subordinated Debt or Redeemable Preferred Interests not otherwise permitted under this Section 7.2; provided that the aggregate amount of the outstanding principal amount of such unsecured Subordinated Debt and the maximum amount of the purchase price, redemption price or liquidation value (whichever is greater) of such Redeemable Preferred Interests does not exceed $400,000,000 at any time; provided further that either (x) such Debt or Redeemable Preferred Interests are incurred to finance an Investment permitted under Section 7.6(e) or (y) the Net Cash Proceeds thereof are applied in accordance with Section 2.11(a);
(m) Debt extending the maturity of, or refunding, refinancing or replacing, in whole or in part, any Debt permitted by Section 7.2(b) or incurred pursuant to this clause (m); provided, however, that (A) the aggregate principal amount of such extended, refunding, refinancing or replacement Debt shall not be increased above the principal amount thereof and the premium, if any, thereon outstanding immediately prior to such extension, refunding, refinancing or replacement and the amount of any reasonable fees and expenses incurred with respect to such extension, refunding, refinancing or replacement, (B) the direct and contingent obligors therefor shall not be changed as a result of or in connection with such extension, refunding, refinancing or replacement, (C) such extended, refunding, refinancing or replacement Debt shall not mature prior to the stated maturity date or mandatory redemption date of the Debt being so extended, refunded, refinanced or replaced, (D) if the Debt being so extended, refunded, refinanced or replaced is subordinated in right of payment or otherwise to the obligations of the Borrower or any of its Subsidiaries under and in respect of the Loan Documents, such extended, refunding, refinancing or replacement Debt shall be subordinated to such Obligations to at least the same extent, (E) the terms (other than pricing) of such extended, refunding, refinancing or replacement Debt are no more burdensome to the Borrower taken as a whole than the terms of the Debt being extended, refunded, refinanced or replaced and (F) pro forma for such transaction the Borrower shall be in compliance with Section 7.16 and any other applicable covenant hereunder;
(n) secured and unsecured Debt of Subsidiaries of the Borrower that are not Guarantors in an aggregate amount not to exceed $50,000,000 at any time outstanding;
(o) Debt comprised of guarantees given by the Borrower or any of its Subsidiaries in respect of any bankers’ acceptanceSpecial Purpose Licensed Entity which obligations, letter when aggregated with the aggregate amount of creditall Investments made under Section 7.6(i) hereof, warehouse receipt or similar facilities entered into shall not exceed $100,000,000 at any time outstanding;
(p) Debt consisting of Operating Indebtedness; and
(q) Debt in connection with Permitted Receivables Financings, provided that the ordinary course of business;proceeds thereof are applied in accordance with Section 2.11(a).
Appears in 1 contract
Samples: Credit Agreement (Davita Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries or Non Recourse Subsidiaries to create, incur, assume or suffer to existexist any Debt, any Debt other thanexcept:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents Documents, including any Permitted Revolving Credit Refinancing; provided that (A) the lenders (or agent on behalf of the lenders) of such Permitted Revolving Credit Refinancing have become a party to the Intercreditor Agreement as, and have the Senior Subordinated Notesobligations of, First Lien Secured Parties thereunder and (B) without giving effect to any extensions, renewals and replacements of any such DebtPermitted Revolving Credit Financing shall only be secured by the Liens created by the Collateral Documents;
(ii) Debt under the Second Lien Loan Documents in an aggregate principal amount that is not in excess of $300,000,000;
(iii) secured Debt under any letter of credit facility that either (A) supports a Permitted Commodity Hedge Agreement (including, without limitation, the Special LC Facility) or (B) supports working capital obligations, in an aggregate principal amount not to exceed $384,000,000 at any one time outstanding; provided that (x) any lender or letter of credit issuer of such Debt has become a party to the Intercreditor Agreement as, and has obligations of, a First Lien Secured Party thereunder and (y) such Debt shall only be secured by the Liens created by the Collateral Documents;
(iiiiv) Debt under the MSCG Hedging Facility, the MSCG Capacity Swap Agreement or any other Permitted Commodity Hedging Agreement;
(v) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates incurred in the ordinary course of business and providing protection consistent with prudent business practice;
(vi) Debt owed to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with a wholly owned Subsidiary of the Borrower’s or any , which Debt shall (x) in the case of its Subsidiaries’ operationsDebt owed to a Loan Party, in either case; provided that such Hedge Agreements are bona fide hedging activities constitute Pledged Debt, (y) be subordinated to the Facilities and are not entered into for speculative purposeson terms acceptable to the Administrative Agent and (z) be otherwise permitted under the provisions of Section 5.02(f);
(ivvii) (A) Debt owed of a Person or Debt attaching to assets of a Person that, in either case, becomes a Loan Party or Debt attaching to assets that are acquired by the Borrower or any Loan Party as the result of a Permitted Acquisition; provided that (1) such Debt existed at the time such Person became a Loan Party or at the time such assets were acquired and, in each case, was not created in anticipation thereof, (2) such Debt is not guaranteed in any respect by the Parent, the Borrower or any other Loan Party (other than any such Person that so becomes a Loan Party) and (3) (x) the Equity Interests in such Person are pledged to the Collateral Agent to the extent required under Section 5.01(k) and (y) such Person executes a supplement to the Subsidiary Guaranty and the Security Agreement (or alternative guarantee and security arrangements in relation to the Obligations) to the extent required under Section 5.01(k); and (B) any refinancing, refunding, renewal or extension of any Debt specified in subclause (A) above; provided that (I) the principal amount of such Debt is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, (II) the direct and contingent obligors with respect to such Debt are not changed and (III) the final maturity of such refinancing, refunding, renewal or extension Debt is no earlier than the existing scheduled maturity date of the Debt being refinanced, refunded, renewed or extended;
(A) unsecured subordinated Debt of the Borrower or any Loan Party incurred to finance a Permitted Acquisition in an aggregate amount not to exceed $150,000,000 at any one time outstanding; provided that (1) such Debt is not guaranteed in any respect by any Loan Party to (other than any other Person acquired (the “Acquired Person”) as a result of such Permitted Acquisition or the Loan PartyParty so incurring such Debt) or, in the case of Debt of any Subsidiary, by the Borrower, (B2)(x) Debt owed the Borrower pledges the Equity Interests of such acquired Person to any non-Debtor Subsidiary by any Loan Party the Collateral Agent to the extent required under Section 5.01(k) and (Cy) Debt owed by any non-Debtor Subsidiary such acquired Person executes a supplement to any Loan Party the Guarantee and the Security Agreement (or alternative guarantee and security arrangements in an amount not exceeding relation to the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (xObligations) to the extent that the Administrative Agent requires that an intercompany loan required under Section 5.01(k), (3) any such Debt is evidenced by a promissory noteincurred prior to or within 90 days after such Permitted Acquisition, such promissory note shall be in form (4) both before and substance satisfactory after giving effect to the Administrative Agent, incurrence of such Debt (x) no Default or Event of Default shall have occurred and be continuing and (y) each intercompany loan owed the Parent would be in compliance with the covenants set forth in Section 5.04 as of the most recently completed Measurement Period ending prior to the incurrence of such Debt for which financial statements and certificates required by a Loan Party Section 5.03(b) or 5.03(c) were required to a non-Debtor Subsidiary shall be subject delivered, after giving pro forma effect to subordination provisions in form the incurrence of such Debt and substance the related Permitted Acquisition and to any other event occurring after such Measurement Period as to which pro forma recalculation is appropriate as if such incurrence of Debt and the related Permitted Acquisition had occurred as of the first day of such Measurement Period and (5) such Debt is subordinated to the Advances on either customary market terms at the time such Debt is incurred or otherwise on terms reasonably satisfactory to the Administrative Agent except to the extent permitted to be contained secured by a purchase money lien pursuant to Section 5.02(a)(x); and (B) any refinancing, refunding, renewal or extension of any Debt specified in subclause (A) above; provided that (I) the respective intercompany noteprincipal amount of such Debt is not increased above the principal amount thereof outstanding immediately prior to such refinancing, subordinating refunding, renewal or extension plus accrued and unpaid interest and fees, (II) the direct and contingent obligors with respect to such Debt are not changed, (III) the final maturity of such refinancing, refunding, renewal or extension Debt is no earlier than the existing scheduled maturity date of the Debt being refinanced, refunded, renewed or extended and (IV) such Debt is subordinated to the Advances on either customary market terms at the time such Debt is incurred or otherwise on terms reasonably satisfactory to the Administrative Agent except to the extent permitted to be secured by a purchase money lien pursuant to Section 5.02(a)(x);
(ix) Debt arising from agreements of the Borrower or any Loan Party providing for indemnification, adjustment of purchase price, earn-out, non-compete, consulting, deferred compensation or other similar obligations in connection with any Permitted Acquisition or asset disposition permitted in accordance with Section 5.02(e); provided that (A) such Debt is not reflected on the balance sheet of the Borrower or such Loan Party thereunder (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the Obligations balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (A)) and (B) in the case of any asset disposition, the maximum assumable liability in respect of all such Debt shall at no time exceed the gross proceeds, including noncash proceeds (the fair market value of such Loan Party under this Agreement noncash proceeds being measured at the time received and without giving effect to any subsequent changes in value), actually received by the Borrower and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted Parties in favor of the Administrative Agent and the Lenders pursuant to the Ordersconnection with such disposition;
(vx) Non-Recourse Debt; provided that both before and after giving effect to the incurrence of such Non-Recourse Debt, no Default or Event of Default shall have occurred and be continuing;
(xi) (A) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that (1) such Debt (other than credit or purchase cards) is extinguished within five Business Days after receipt of notice of its incurrence and (2) such Debt in respect of purchase or credit cards is extinguished within 30 days from its incurrence and (B) contingent indemnification obligations to financial institutions, in each case to the extent in the ordinary course of business and on terms and conditions which are within the general parameters customary in the banking industry, entered into to obtain cash management services or deposit account overdraft protection services (in amounts similar to those offered for comparable services in the financial services industry) or other services in connection with the management or opening of deposit accounts or incurred as a result of endorsement of negotiable instruments for deposit or collection purposes;
(xii) contingent obligations under or in respect of surety bonds, appeal bonds, performance and return-of-money bonds and other similar obligations incurred in the ordinary course of business in connection with bids, projects, leases and similar commercial contracts;
(xiii) Debt secured by Liens permitted by Section 5.02(a)(iv5.02(a)(x) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 250,000,000 at any time outstanding;
; provided, that, (viA) endorsement immediately after giving effect to the incurrence of negotiable instruments for deposit such Debt, the Parent shall be in pro forma compliance with the covenants set forth in Section 5.04 hereof, (B) at the time of the incurrence of such Debt and after giving effect thereto, no Default or collection Event of Default shall have occurred and be continuing or similar transactions would result therefrom, and (C) in the ordinary course case of business;
(viiDebt permitted by this Section 5.02(b)(xiii) Debt consisting in a principal amount in excess of guaranty Obligations in the ordinary course of business of the obligations of suppliers$10,000,000, customers, franchisees and licensees a Responsible Officer of the Borrower shall have delivered an officer’s certificate certifying as to the matters set forth in clauses (A) and its Subsidiaries;
(viiiB) above in form and detail reasonably satisfactory to the Administrative Agent. Notwithstanding anything to the contrary, only Non-Recourse Subsidiaries may incur Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;under clause (x) above.
Appears in 1 contract
Samples: First Lien Credit Agreement (US Power Generating CO)
Debt. CreateNo Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, create, assume, incur, assume or suffer to exist, or permit in any of its Subsidiaries to createmanner become liable, incurdirectly, assume indirectly, or suffer to existcontingently in respect of, any Debt other thanthan the following (collectively, the “Permitted Debt”):
(a) the Obligations;
(i) intercompany Debt owed by any US Credit Party to any other US Credit Party, (ii) intercompany Debt owed by any Canadian Credit Party to any other Canadian Credit Party, and (iii) intercompany Debt owed by any Restricted Entity that is not a Credit Party to any other Restricted Entity that is not a Credit Party;
(c) intercompany Debt (i) owed by any US Credit Party to any Restricted Entity that is not a US Credit Party, or (ii) owed by any Canadian Credit Party to any Restricted Entity that is not a Canadian Credit Party; provided that:
(i) Prepetition such intercompany Debt shall be permitted as an Investment by such Credit Party pursuant to Section 6.3; and
(ii) (A) the aggregate principal amount of such Debt permitted under this Section 6.1(c) shall not exceed $5,000,000 outstanding on at any time, (B) such Debt shall not have a stated maturity date that is earlier than six months after the Petition Maturity Date and (as in effect at the time such intercompany Debt was incurred), (C) if such Debt is owing by a Restricted Entity that is not a Credit Party, such Debt shall be subordinated to the Obligations under subordination terms substantially similar to those set forth in Schedule 4.01(r6.19 attached hereto, (D) (includingif such Debt is owing by a Restricted Entity that is a Credit Party, without limitation, such Debt shall be subordinated to the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred Obligations as provided in the ordinary course of business and providing protection Guaranty, (E) such intercompany Debt is unsecured, (F) if such Debt is owed to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan a Credit Party, (B) such Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory notenote that is subject to an Acceptable Security Interest in favor of the applicable Administrative Agent, and (G) if such Debt is owing to a US Credit Party, such promissory note intercompany Debt shall be in form not have been made with any proceeds of any Advance;
(d) intercompany Debt owing to any US Credit Party by any Canadian Credit Party that (i) is outstanding on the Closing Date as set forth on Schedule 6.1, and substance satisfactory to (ii) incurred after the Administrative AgentClosing Date; provided that (x) the aggregate principal amount outstanding and permitted under this Section 6.1(d) shall not exceed $20,000,000, (y) each such intercompany loan owed Debt is unsecured and evidenced by a Loan Party to a non-Debtor Subsidiary shall be promissory note that is subject to subordination provisions an Acceptable Security Interest in form and substance satisfactory to favor of the US Administrative Agent to be contained in the respective intercompany noteAgent, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each such intercompany loan owed to a Loan Party Debt shall not be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor made with any proceeds of the Administrative Agent and the Lenders pursuant to the Ordersany Advance;
(ve) intercompany Debt secured owing to any Canadian Credit Party by Liens any US Credit Party; provided that (w) such intercompany Debt shall be permitted as an Investment by such Canadian Credit Party pursuant to Section 5.02(a)(iv6.3(e), (x) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal outstanding and permitted under this Section 6.1(e) shall not exceed $5,000,000, (y) such intercompany Debt is unsecured and subordinated to $2,500,000 the Obligations as provided in the Guaranty, and (z) such Debt shall not have a stated maturity date that is earlier than six months after the Maturity Date (determined at any the time outstandingsuch intercompany Debt was incurred);
(vif) purchase money indebtedness or Capital Leases described on Schedule 6.1 and all other purchase money indebtedness or Capital Leases; provided that, the aggregate principal of Debt permitted under this Section 6.1(d) shall not exceed $5,000,000 outstanding at any time;
(g) Hedging Arrangements permitted under Section 6.13;
(h) Debt arising from the endorsement of negotiable instruments or other payment items for deposit or collection or similar transactions in the ordinary course of business;
(viii) Debt owed to any Person providing (or any Person who provides financing for) property, casualty, liability, or other insurance to any Restricted Entity in an aggregate outstanding amount not to exceed $500,000, so long as such Debt is incurred only to defer the premium cost of such insurance for the underlying term of such insurance policy;
(j) Debt consisting of guaranty Obligations liabilities incurred in the ordinary course of business of the with respect to surety, customs, stay, appeal and performance bonds, completion guarantees and similar obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiariesin an aggregate amount not to exceed $500,000;
(viiii) Debt consisting of liabilities in respect of any bankers’ acceptanceindemnification obligation, letter adjustment of purchase price, non-compete, earn-out obligation, tax-refund obligation or similar obligation of any Restricted Entity incurred in connection with the consummation of one or more Permitted Acquisitions, Permitted Asset Sales, or Permitted Investments to the extent such liabilities are not paid in cash at the consummation thereof and remain outstanding or will be incurred thereafter, and (ii) Debt arising from guaranties, letters of credit, warehouse receipt bank guaranties, surety bonds, performance bonds or similar facilities entered into instruments securing the performance of liabilities of any Restricted Entity described in the preceding clause (i); provided that (A) the aggregate outstanding amount of liabilities, obligations and other Debt permitted under this Section 6.1(i) shall not exceed $15,000,000, at any time, and (B) notwithstanding Section 6.2(h), no obligation, liability or other Debt described in the preceding clause (j) or (ii) shall be secured other than (x) with a Lien to the extent permitted under Section 6.2(t) below and (y) escrow arrangements which may be secured with the cash that is being held in such escrow;
(l) Debt incurred arising (A) from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of businessbusiness and (B) in respect of Banking Services;
(m) Funded Debt of a Person acquired, or Funded Debt assumed by any Credit Party or any of their respective Restricted Subsidiaries, in each case, pursuant to a Permitted Acquisition after the Closing Date; provided that (i) such Funded Debt exists at the time of such Permitted Acquisition and was not created or incurred in contemplation thereof, (ii) no Event of Default has occurred and is continuing or would result therefrom, and (iii) the Restricted Entities shall be in compliance on a pro forma basis with the covenants set forth in Section 6.16 after giving effect to such Permitted Acquisition and the assumption of such Funded Debt;
(n) Debt (other than Debt owed by a Credit Party to another Credit Party) to the extent not otherwise permitted under this Section 6.1, including Subordinated Debt; provided that, the aggregate principal amount of the Debt permitted under this clause (l) shall not exceed $10,000,000 (plus any amounts paid as pay-in-kind interest on Subordinated Debt), outstanding at any time; and
(o) Debt owed by Non-Credit Parties in an aggregate principal amount not to exceed $5,000,000 outstanding at any time. Each Restricted Entity shall be permitted to extend, refinance, refund, replace and renew Debt permitted above so long as any such extensions, refinancings, refundings, replacements and renewals shall be subject to the following conditions: (A) any such refinancing Debt is in an aggregate principal amount not greater than the aggregate principal amount of the Debt being renewed or refinanced, plus the amount of any premiums required to be paid thereon, accrued and unpaid interest thereon and reasonable fees and expenses associated therewith and an amount equal to any unutilized active commitment under the Debt being renewed or refinanced, and (B) in the case of clauses (k), (m), and (n), the covenants, events of default, subordination (if applicable) and other provisions thereof (including any guarantees thereof), but excluding pricing, shall be, in the aggregate, not materially less favorable to the Lenders than those contained in the Debt being renewed or refinanced; provided that nothing in this sentence is intended to, nor shall anything in this sentence be construed as, an increase in any dollar limit already provided in Section 6.1 above nor an amendment of any specific requirement set forth in Section 6.1 above, including such Debt owed or owing to Non-Credit Parties or Credit Parties.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or (a) The Guarantor will not permit any of its Subsidiaries to create, incurassume or suffer to exist any Debt, except (i) Debt under the Related Documents, (ii) Debt owing to the Guarantor or a Wholly-Owned Consolidated Subsidiary of the Guarantor, (iii) Debt of Tripar Partnership, a Bermuda general partnership, owing to other Subsidiaries or Debt of such other Subsidiaries owing to Tripar Partnership, (iv) Debt in respect of letters of credit issued in the ordinary course of business, (v) Debt created by exercise of overdraft privileges on a basis not more frequent than once each calendar month for not more than five Euro-Dollar Business Days in an amount not to exceed $50,000,000 in the aggregate at any one time, (vi) subordinated Debt of the Borrower owing to ACE Insurance under the Subordinated Loan Agreement, (vii) Debt in an amount not to exceed $70,000,000 incurred in connection with the development by the Guarantor and/or any of its Subsidiaries of the "Bermudiana Site" in Hamilton, Bermuda, and (viii) Debt not permitted by the foregoing clauses of this Section in an aggregate principal amount not to exceed $20,000,000 at any time outstanding.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, create, assume or suffer to existexist any Debt, any Debt other than:
except (i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensionsFinancing Documents, renewals and replacements of any such Debt;
(ii) Debt under the Subordinated Loan Documents;
Agreement owing to ACE Insurance, (iii) Debt in respect of Hedge Agreements incurred in owing to ACE Limited subordinated to the ordinary course of business same extent as Debt under the Subordinated Loan Agreement and providing protection (iv) Debt owing to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with a Wholly-Owned Consolidated Subsidiary of the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding;
(vi) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;.
Appears in 1 contract
Samples: Term Loan Agreement (Ace LTD)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other than:
(i) Prepetition Debt outstanding on in the Petition Date and set forth in Schedule 4.01(r) (includingcase of the Borrower, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates incurred in the ordinary course of business and providing protection consistent with prudent business practice the aggregate Agreement Value thereof not to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or exceed $100,000,000 at any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposestime outstanding;
(ivii) (A) Debt owed by any Loan Party to any other Loan Partyin the case of the Borrower, (B) Debt owed to any non-Debtor a wholly- owned Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding of the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi)Borrower, provided that, that (x) such Debt is subordinated to any Debt of the extent that Borrower under the Administrative Agent requires that an intercompany loan Loan Documents on the terms and conditions set forth in Exhibit L and (y) if such Debt is owed to a Collateral Grantor (1) such Debt shall constitute Pledged Debt, and (2) if evidenced by a promissory notenotes, such promissory note shall be in form and substance satisfactory to the Administrative Agent, such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreement;
(iii) in the case of any of the Subsidiaries of the Borrower (other than Captain D's Properties or Captain D's Realty) Debt owed to the Borrower or to a wholly-owned Subsidiary of the Borrower; provided that (x) such Debt is subordinated to any Debt of such Subsidiary under the Loan Documents on the terms and conditions set forth in Exhibit L, and (y) each intercompany loan if such Debt is owed by a Loan Party to a non-Debtor Subsidiary Collateral Grantor, (1) such Debt shall be subject to subordination provisions constitute Pledged Debt, and (2) if evidenced by promissory notes, in form and substance satisfactory to the Administrative Agent to Agent, such promissory notes shall be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to pledged as security for the Obligations of such Loan Party the holder thereof under this Agreement and the other Loan Documents to which such holder is a party and (z) each intercompany loan owed delivered to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Ordersterms of the Security Agreement;
(viv) in the case of the Borrower and any of its Subsidiaries (other than Captain D's Properties or Captain D's Realty);
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 3,000,000 at any time outstanding;,
(vii) endorsement Capitalized Leases (other than those permitted by subclause (ii) of negotiable instruments for deposit or collection or similar transactions this clause (C) and those permitted by clause (E) below) not to exceed in the ordinary course of business;
aggregate $15,000,000 at any time outstanding, (viiii) Debt consisting of guaranty Obligations Capitalized Leases in connection with the Captain D's Lease Program not to exceed in the ordinary course of business aggregate $5,000,000 in any Fiscal Year plus, in any Fiscal Year ending in 2000 or thereafter, an amount up to $5,000,000 equal to the excess (if any) of the obligations amount of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into Capitalized Leases permitted to be incurred in the ordinary course immediately preceding Fiscal Year in connection with the Captain D's Lease Program over the aggregate amount of business;Capitalized Leases in connection with the Captain D's Lease Program actually incurred in the immediately preceding Fiscal Year, and (iii) in the case of
Appears in 1 contract
Samples: Credit Agreement (Shoneys Inc)
Debt. Create, incur, assume or suffer permit to exist, or permit any of its Subsidiaries Subsidiary, to create, incur, assume or suffer permit to exist, any Debt direct or contingent indebtedness, liabilities or lease obligations (other than:
than those to the Lender Group or the Issuing Bank), or become liable for the debts of others without the Agent's written consent, except for (i) Prepetition Debt outstanding acquiring goods, supplies or merchandise on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
normal trade credit; (ii) Debt under endorsing negotiable instruments received in the Loan Documents;
usual course of business; (iii) Debt in respect of Hedge Agreements incurred obtaining surety bonds in the ordinary usual course of business and providing protection to business, (iv) the indebtedness of the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with existing as of, and disclosed to the Borrower’s or any Agent prior to the date of its Subsidiaries’ operationsthis Agreement; (v) secured indebtedness, in either casethe aggregate, for purchase money financing of equipment which is permitted under SECTION 6.2(e)(ii) hereof and obligations under Capital Leases not to exceed $1,000,000 outstanding at any time; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (Cvi) Debt owed by any non-Debtor Subsidiary operating leases.
13. The first three (3) sentences of SECTION 9.1 of the Agreement are hereby amended to any Loan Party read in an amount not exceeding the amount of any Investment made pursuant totheir entirety as follows: Each Lender hereby designates and appoints Mellon Bank, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party N.A. as its agent under this Agreement and the other Loan Documents and each Lender and the Issuing Bank (zby its acceptance of the benefits hereof) hereby irrevocably authorizes the Agent to take such action on its behalf under the provisions of this Agreement and each intercompany loan owed other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. The Agent agrees to act as such on the express conditions contained in this ARTICLE IX. The provisions of this ARTICLE IX are solely for the benefit of the Agent, the Agent-Related Persons, the Lenders and the Issuing Bank; the Borrower shall have no rights as a Loan Party third party beneficiary of any of the provisions contained herein; provided, however, that certain of the provisions of SECTION 9.10 hereof also shall be pledged by that Loan Party as security under for the Collateral Documents and will be subject to a perfected Lien granted in favor benefit of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding;
(vi) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;Borrower.
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition [Intentionally Omitted.]
(ii) in the case of any Subsidiary of any Borrower, Debt outstanding owed to such Borrower or to a wholly owned Subsidiary of such Borrower, PROVIDED that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall be on terms acceptable to the Petition Date Administrative Agent and set forth (z) shall be evidenced by promissory notes in Schedule 4.01(r) (including, without limitation, form and substance satisfactory to the Indebtedness Administrative Agent and such promissory notes shall be pledged as security for the Obligations under the Prepetition Loan Documents of the holder thereof and delivered to the Senior Subordinated NotesCollateral Agent pursuant to the terms of the Security Agreement; and
(iii) without giving effect to any extensions, renewals and replacements in the case of any such Debtthe Loan Parties;
(iiA) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 25,000,000 at any time outstanding;
(viC) endorsement the Surviving Debt;
(D) indorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(viiE) Debt consisting of guaranty Obligations in under the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its SubsidiariesPre-Petition Inventory Financing Agreements;
(viiiF) Debt under inventory flooring arrangements (other than the Pre-Petition Inventory Financing Agreements and the Floor Planning Arrangements PROVIDED THAT with respect to Floor Planning Arrangements, the terms of such arrangement including, without limitation, intercreditor arrangements are acceptable to the Administrative Agent) provided by a manufacturer of computer equipment, secured by inventory and equipment bearing the trademark or tradename of such manufacturer, provided that, (x) the aggregate principal amount of such Debt shall not exceed $10,000,000, and (y) the terms of such arrangement including, without limitation, intercreditor arrangements, are acceptable to the Administrative Agent;
(G) Debt extending the maturity of, or refunding or refinancing, in respect whole or in part, Debt described in clauses (C), (E) and (H) (other than the Pre-Petition Inventory Financing Agreements and Floor Planning Arrangements to which IBM Credit Corporation is a party) above, PROVIDED that (1) the terms of any bankers’ acceptancesuch extending, letter refunding or refinancing Debt, and of credit, warehouse receipt or similar facilities any agreement entered into and of any instrument issued in connection therewith, are otherwise permitted by the Loan Documents, (2) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lender Parties than the terms of any agreement or instrument governing the Debt being extended, refunded or refinanced and the interest rate applicable to such extending refunding or refinancing Debt does not exceed the then applicable market interest rate, (3) in the ordinary course case of businessany Surviving Debt, the principal amount of such Surviving Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing and (4) in the case of any Pre-Petition Inventory Financing Agreement, the creditors thereof shall have entered into intercreditor agreements with the Collateral Agent and the applicable Borrower that are no less favorable in any material respect to the Loan Parties or the Lender Parties than the terms of the intercreditor agreement entered into with the creditor of such Pre-Petition Inventory Financing Agreement prior to the Filing Date being extended, refunded or refinanced;
(H) Debt under the Floor Planning Arrangements;
(I) Debt secured by a mortgage on the real property located at 1330 West Southern, Tempe, Arizona.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Microage Inc /De/)
Debt. Create, incur, assume or or, from and after the Effective Date, suffer to exist, or permit any of its Subsidiaries to create, incur, assume or or, from and after the Effective Date, suffer to exist, any Debt other thanDebt, except:
(i) Prepetition in the case of the Borrower, Debt outstanding on owed to a Loan Party, which Debt if evidenced by a promissory note shall, from and after the Petition Date Effective Date, constitute Pledged Debt and set forth in Schedule 4.01(r) (includingsuch promissory note shall, without limitationfrom and after the Effective Date, be pledged as security for the Indebtedness Obligations of the holder thereof under the Prepetition Loan Documents to which such holder is a party and delivered to the Senior Subordinated Notes) without giving effect Collateral Agent pursuant to any extensions, renewals and replacements the terms of any such Debt;the Security Agreement,
(ii) in the case of any Subsidiary of the Borrower that is a Loan Party, Debt owed to the Borrower or to another Loan Party, provided that, in each case, such Debt if evidenced by a promissory note shall, from and after the Effective Date, constitute Pledged Debt, and such promissory notes shall, from and after the Effective Date, be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement.
(iii) in the case of the Borrower and its Subsidiaries,
(A) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to (together with any Capitalized Leases permitted under clause (C) below) $2,500,000 10,000,000 at any time outstanding, excluding, for purposes of such limitation, Debt secured by Liens described in Section 5.02(a)(iii);
(viC) endorsement of negotiable instruments for deposit or collection or similar transactions Capitalized Leases not to exceed in the ordinary course aggregate (together with any Debt permitted under clause (B) above) $10,000,000 at any time outstanding, excluding, for purposes of businesssuch limitation, Debt secured by Liens described in Section 5.02(a)(iii);
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;
Appears in 1 contract
Debt. Create, incur, assume or suffer to existassume, permit, guarantee, or permit otherwise become or remain, directly or indirectly, liable with respect to any of its Subsidiaries to createDebt, incur, assume or suffer to exist, any Debt other thanexcept:
(ia) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents evidenced by this Agreement and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the other Loan Documents;
(iiib) Debt incurred by any Loan Party, provided that at the time of incurrence of such Debt and after giving pro-forma effect thereto, the Borrower would be in respect compliance with Section 6.13 and so long as no Unmatured Event of Hedge Agreements Default or Event of Default has occurred and is continuing at the time of such incurrence;, provided further, that the Loan Parties shall cause any Debt incurred pursuant to this clause (b) and owed to any Subsidiary or any other Subordinated Creditor (as defined in the Intercompany Subordination Agreement) to be subordinated to the Loans on substantially the same terms as set forth in the Intercompany Subordination Agreement;
(c) Contingent Obligations resulting from the endorsement of instruments for collection in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposesbusiness;
(iv) (Ad) Debt owed by of (i) any Subsidiary to Borrower or to any Guarantor, (ii) Borrower or any Guarantor to any other Borrower or any Guarantor, or (iiia Loan Party, (ii) any Loan Party to any other Loan Party, (Biii) Debt owed to any non-Debtor Restricted Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor any other Restricted Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by or (iv) any Subsidiary that is not a Restricted Subsidiary of a Loan Party as security under the Collateral Documents and will be subject to any other Subsidiary that is not a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersLoan Party;
(ve) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not which may be deemed to exceed an aggregate principal amount equal exist pursuant to $2,500,000 at any time outstanding;
(vi) endorsement of negotiable instruments for deposit or collection performance bonds, surety bonds, statutory bonds, appeal bonds or similar transactions obligations incurred in the ordinary course of business;
(viif) Debt consisting in respect of guaranty Obligations netting services, overdraft protections and otherwise in connection with deposit accounts incurred in the ordinary course of business;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower Loan Parties and its their Subsidiaries;
(viiih) Debt of a Loan Party or any of its Subsidiaries under any Hedging Agreement so long as such Hedging Agreements are used solely as a part of its normal business operations as a risk management strategy or hedge against changes resulting from market operations and not as a means to speculate for investment purposes on trends and shifts in financial or commodities markets;
(i) Debt of any Loan Party or Subsidiary under Back-to-Back Lending Facilities, in an aggregate principal amount not to exceed $50,000,000;
(j) Debt incurred in the ordinary course of business under incentive, non-compete, consulting, deferred compensation, or other similar arrangements incurred by any Loan Party or Subsidiary;
(k) Debt incurred in the ordinary course of business with respect to the financing of insurance premiums;
(l) Debt in respect of taxes, assessments or governmental charges to the extent that payment thereof shall not at the time be required to be made hereunder; and
(m) other Debt of the Subsidiaries (other than any bankers’ acceptanceLoan Party) in an aggregate principal amount for all such Subsidiaries not to exceed $40,000,000 at any one time and so long as no Unmatured Event of Default or Event of Default has occurred and is continuing at the time of incurrence of any such other Debt;
(n) Debt (not to exceed $200,000,000 for all such Foreign Subsidiaries at any one time) incurred by any ForeignCLO Management Subsidiary in connection with, letter or otherwise to finance (directly or indirectly) any Investment made to comply with any regulatory requirements (including, without limitation, risk retention requirements) provided that any such Debt is non-recourse to the Borrower or any Loan Party or any Restricted Subsidiary (provided, no Subsidiary other than a Foreignthat an Unrestricted Subsidiary shall only be liable for such Debt except to the extent such Debt is permitted pursuant to clause (mp) aboveof this Section 6.1);
(o) guaranties by Loan Parties or other Subsidiaries in respect of credit, warehouse receipt or similar facilities entered into real estate lease obligations incurred in the ordinary course of business;; and
(p) Debt (not to exceed $300,000,000 at any one time) incurred by any Unrestricted Subsidiary provided that any such Debt is non-recourse to any Loan Party or any Restricted Subsidiary (provided, that a CLO Management Subsidiary shall only be liable for such Debt to the extent such Debt is permitted pursuant to clause (n) of this Section 6.1); and
Appears in 1 contract
Samples: Amendment No. 5 (Ares Management Lp)
Debt. Create, incur, assume or suffer to exist, or permit any of its ---- Subsidiaries to create, incur, assume or suffer to exist, any Debt other than:
(i) Prepetition Debt outstanding on in the Petition Date and set forth in Schedule 4.01(r) (including, without limitationcase of the Borrower, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such DebtDebentures;
(ii) in the case of any of the Subsidiary Guarantors, Debt owed to the Borrower or to another Subsidiary Guarantor, provided that (x) such Debt is -------- subordinated to any Debt of such Subsidiary Guarantor under the Loan Documents on terms and conditions acceptable to the Required Lenders and (y) such Debt is evidenced by a promissory note and such promissory note is pledged in favor of the Secured Parties pursuant to the terms of the Security Agreement; and
(iii) in the case of the Borrower and any of its Subsidiaries,
(A) Debt under the Loan Documents;
, (iiiB) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations(other than D.C. Chartered Health Plan, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(ivInc.) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 500,000 at any time outstanding;,
(vii) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of Capitalized Leases entered into by the Borrower and its Subsidiaries;
Subsidiaries (viiiother than D.C. Chartered Health Plan, Inc.) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into not to exceed in the ordinary course aggregate $5,000,000 at any time outstanding, and (ii) in the case of business;Capitalized Leases to which any such Subsidiary of the Borrower is a party, Debt of the Borrower of the type described in clause (j) of the definition of "Debt" guaranteeing the Obligations of such Subsidiary under such ---- Capitalized Leases,
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course case of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party, (B) Debt owed to Party or any nonwholly-Debtor owned Subsidiary by of any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in other than an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(viExcluded Subsidiary), provided that, in each case, such Debt (xy) shall be on terms acceptable to the extent that the Administrative Agent requires that an intercompany loan is and (z) shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory unless payable to the Administrative Agent to Borrower) by their terms be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder subordinated to the Obligations of such the Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security Parties under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersLoan Documents;
(vii) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section 5.02(a)(iv5.02(a)(iii) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 5,000,000 at any time outstanding,
(1) Capitalized Leases (other than with respect to Real Property) not to exceed in the aggregate $5,000,000 at any time outstanding, and (2) in the case of Capitalized Leases (other than with respect to Real Property) to which any Subsidiary of a Loan Party is a party, Debt of such Loan Party of the type described in clause (i) of the definition of “Debt” guaranteeing the Obligations of such Subsidiary under such Capitalized Leases,
(D) the Surviving Debt described on Schedule 4.01(o) hereto and any Refinancing Debt, extending, refunding or refinancing such Surviving Debt,
(E) Debt in respect of Hedge Agreements entered into by the Borrower and designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practice,
(F) unsecured Debt incurred in the ordinary course of business for borrowed money, maturing within one year from the date created, and aggregating, on a Consolidated basis, not more than $5,000,000 at any one time outstanding,
(G) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Unencumbered Assets, the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement, and
(H) Recourse Debt in an amount not to exceed in the aggregate the sum of (1) 5% of Total Asset Value, plus (2) the amount, if any, by which $200,000,000 exceeds the aggregate amount of the Revolving Credit Facility; provided, however, that if at any time the Parent Guarantor shall maintain a Debt Rating from S&P of at least BBB—or a Debt Rating from Xxxxx’x of at least Baa3, then the limitation set forth above in this clause (H) shall not apply and Recourse Debt shall be permitted to the extent the incurrence of such Recourse Debt would not result in a Default or Event of Default by the Parent Guarantor in respect of its financial covenants in Section 5.04(a);
(viiii) in the case of the Parent Guarantor or any of its Subsidiaries, Debt under Customary Carve-Out Agreements; and
(iv) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;.
Appears in 1 contract
Samples: Revolving Credit Agreement (Digital Realty Trust, Inc.)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iiiii) Debt in respect of Hedge Agreements incurred in the ordinary course case of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party or any Subsidiary of a Loan Party, Debt owed to any other Loan Party, (B) Debt owed to Party or any nonwholly-Debtor owned Subsidiary by of any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi)Party, provided that, in each case, such Debt (xy) shall be on terms acceptable to the extent that the Administrative Agent requires that an intercompany loan is and (z) shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative Agent, which promissory notes shall (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory unless payable to the Administrative Agent to Borrower) by their terms be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder subordinated to the Obligations of such the Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security Parties under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the OrdersLoan Documents;
(viii) the Surviving Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such Surviving Debt;
(iv) in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,
(A) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an in the aggregate principal amount equal to $2,500,000 10,000,000 at any time outstanding,
(B) (1) Capitalized Leases not to exceed in the aggregate $10,000,000 at any time outstanding, and (2) in the case of any Capitalized Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations of such Subsidiary under such Capitalized Lease,
(C) Debt in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred as required by this Agreement or incurred in the ordinary course of business and consistent with prudent business practices, and
(D) Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect of Assets other than Borrowing Base Assets, the incurrence of which would not result in a Default under any of the covenants contained in Section 5.04.5.04;
(v) in the case of the Parent Guarantor and the Borrower, Debt consisting of Customary Carve-Out Agreements;
(vi) endorsement endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) recourse secured Debt, provided that such Debt consisting of guaranty Obligations (A) is not recourse to any Subsidiary Guarantor that owns any Borrowing Base Asset or any direct or indirect Equity Interest therein, (B) is not secured by any Lien on any Borrowing Base Asset, and (C) shall not exceed in the ordinary course aggregate at any time outstanding 10% of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;Total Asset Value; and
(viii) unsecured Debt the incurrence of which would not result in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;a Default under Section 5.04. Annex A - 81
Appears in 1 contract
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to createDebt, incur, assume or suffer to exist, any Debt other than:
(ia) Prepetition Debt outstanding pursuant to the Credit Documents; plus
(b) Debt outstanding on the Petition Closing Date and set forth described on SCHEDULE 6.18 hereof (including the guaranty of the obligations of the Borrower pursuant to the Subordinated Note Purchase Agreement by any Subsidiary of Borrower which is or simultaneously becomes a party to the Subsidiary Guaranty Agreement); plus
(i) Debt owing to a Credit Party in Schedule 4.01(r) (includingthe form of Intercompany Advances, without limitationpayable on demand, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under Investments in Subsidiaries permitted by SECTION 8.03; PROVIDED THAT, the Loan Documents;aggregate amount of Intercompany Advances at any one time outstanding from the Borrower to its Subsidiaries (excluding amounts owed by Xxxxx Funding to the Borrower in connection with the Securitization Program) shall not exceed $85,000,000 at any time outstanding; plus
(iiid) purchase money Debt in respect of Hedge Agreements to the extent permitted by SECTION 8.01; plus
(e) unsecured current liabilities (not resulting from any borrowing) incurred in the ordinary course of business for current purposes and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values not represented by a promissory note or commodity prices other evidence of indebtedness; plus
(f) Debt incurred by Masland in connection with the Borrower’s or any of its Subsidiaries’ operations, in either caseMasland Bonds as long as such Masland Bonds are owned by the Administrative Agent; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;plus
(ivg) Deemed Debt incurred by Xxxxx Funding in connection with the Securitization Program; plus
(Ah) Additional Debt owed by any Loan Party to any other Loan Party, (B) and Deemed Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders permitted pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding;
(vi) endorsement last sentence of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(viii) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;this SECTION 8.
Appears in 1 contract
Samples: Credit Agreement (Dixie Group Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iiiii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes[Reserved];
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(viii) Debt secured by Liens permitted by Section 5.02(a)(iv5.02(a)(vi) and Capitalized Leases arising after the Closing Date not to exceed exceed, together with Debt permitted under clause (iv) below, in an aggregate principal amount equal to of $2,500,000 20,000,000 per Casino Property at any time outstanding;
(iv) Capitalized Leases not to exceed in an aggregate principal amount, together with Debt permitted pursuant to clause (iii) above, $20,000,000 per Casino Property at any time outstanding, and in the case of Capitalized Leases to which any Subsidiary of any Loan Party is a party, Debt of such Loan Party of the type described in clause (i) of the definition of “DEBT” guaranteeing the Obligations of such Subsidiary under such Capitalized Leases;
(v) the Surviving Debt;
(vi) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business[Reserved];
(vii) Debt consisting owed to the Borrower or a wholly-owned Subsidiary of guaranty Obligations the Borrower, which Debt shall (x) in the ordinary course case of business Debt owed to a Loan Party, constitute Pledged Debt, (y) be on terms reasonably acceptable to the Administrative Agent and (z) be otherwise permitted under the provisions of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its SubsidiariesSection 5.02(f);
(viii) to the extent such incurrence does not result in the incurrence by the Borrower or any of its Subsidiaries of any obligation for the payment of Debt for Borrowed Money of others, Debt of the Borrower or any of its Subsidiaries owed to any Person in connection with the termination of employment of or severance obligations owed to such Person and not to exceed $5,000,000 in the aggregate;
(ix) Debt arising from agreements of the Borrower or a Subsidiary Guarantor providing for indemnifications and adjustments of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than Guarantee Obligations in respect of Debt incurred by any bankers’ acceptancePerson acquiring all or any portion of such business, letter assets or a Subsidiary for the purpose of creditfinancing such acquisition; provided, warehouse receipt however, that:
(A) such Debt is not reflected on the balance sheet of the Borrower or similar facilities any Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (ix)(A)); and
(B) the maximum assumable liability in respect of all such Debt shall at no time exceed the gross proceeds including noncash proceeds (the fair market value of such noncash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Borrower and any Subsidiary in connection with such disposition; or
(x) Debt of the type described in clause (i) or (j) of the definition of Debt that constitutes an Investment solely to the extent permitted by Section 5.02(f);
(xi) unsecured Debt of the Borrower, subordinated to the Obligations under the Loan Documents on terms reasonably acceptable to the Administrative Agent and having a maturity date of not less than six months following the Maturity Date and having no amortization prior to the Maturity Date;
(xii) unsecured Debt in an aggregate principal amount not to exceed $30,000,000, subordinated to the Obligations under the Loan Documents on terms reasonably acceptable to the Administrative Agent, and having a maturity date of not less than six months following the Maturity Date and having no amortization prior to the Maturity Date;
(xiii) Debt secured by Liens permitted by Section 5.02(a)(xii) in an aggregate principal amount not to exceed $10,000,000; and
(xiv) Debt representing a refinancing, replacement or refunding of Debt permitted by clauses (b)(iii) through (b)(v) and (b)(xiii) above (the “REFINANCING DEBT”); provided that
(A) such Refinancing Debt has a Weighted Average Life to Maturity at the time such Refinancing Debt is incurred which is not less than the remaining Weighted Average Life to Maturity of the Debt being extended, refunded, refinanced, defeased, renewed or replaced,
(B) the terms relating to principal amount, amortization, maturity and subordination (if any) and other material terms, taken as a whole, of any such Refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the ordinary course Loan Parties or the Lender Parties than the terms of business;any agreement or instrument governing the Debt being extended, refunded or refinanced and the interest rate applicable to any such Refinancing Debt does not exceed the then applicable market interest rate,
(C) the principal amount (or accreted value, if applicable) of such Refinancing Debt does not exceed the sum of the outstanding principal amount (or accreted value, if applicable) of the Debt so extended, refunded, refinanced, defeased, renewed or replaced (plus all accrued interest thereon and the amount of all premiums and reasonable expenses incurred in connection therewith),
(D) the Debt is incurred either by the Borrower or the Subsidiary that is the obligor of the Debt being extended, refunded, refinanced, defeased, renewed or replaced,
(E) the Debt shall be secured only by the property or assets (if any) securing the Debt to be so extended, refunded, refinanced, defeased, renewed or replaced, and
(F) such Refinancing Debt shall not include: (i) Debt of a Subsidiary that extends, refunds, refinances, defeases, renews or replaces Debt or preferred stock of the Borrower, or (ii) Debt of the Borrower or a Subsidiary that extends, refunds, refinances, defeases, renews or replaces Debt or preferred stock of an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Trump Entertainment Resorts, Inc.)
Debt. Create, incur, assume or suffer to exist, or permit any of its Restricted Subsidiaries to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition in the case of the Borrower, Debt outstanding in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and consistent with reasonable business practice, and
(ii) in the case of any Loan Party:
(A) Debt owed to the Borrower or to any other Loan Party, provided that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall be on terms acceptable to the Petition Date Administrative Agent and set forth (z) shall be evidenced by promissory notes in Schedule 4.01(r) (including, without limitation, form and substance satisfactory to the Indebtedness Administrative Agent and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Prepetition Loan Documents to which such holder is a party and delivered to the Senior Subordinated Notes) without giving effect Collateral Agent pursuant to any extensions, renewals and replacements the terms of any such Debtthe Security Agreement;
(iiB) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) Debt owed by any Loan Party to any other Loan Party, (B) Debt owed to any non-Debtor Subsidiary by any Loan Party and (C) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is evidenced by a promissory note, such promissory note shall be in form and substance satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject to subordination provisions in form and substance satisfactory to the Administrative Agent to be contained in the respective intercompany note, subordinating the obligations of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan owed to a Loan Party shall be pledged by that Loan Party as security under the Collateral Documents and will be subject to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Orders;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to in the aggregate, on a Consolidated basis, $2,500,000 5,000,000 at any time outstanding;
(viD) endorsement of negotiable instruments for deposit or collection or similar transactions Capitalized Leases not to exceed in the ordinary course of businessaggregate, on a Consolidated basis, $5,000,000 at any time outstanding;
(viiE) the Surviving Debt;
(F) unsecured Debt consisting of guaranty Obligations incurred in the ordinary course of business for the deferred purchase price of the obligations of suppliersproperty or services, customersaggregating, franchisees and licensees of the Borrower and its Subsidiarieson a Consolidated basis, not more than $5,000,000 at any one time outstanding;
(viiiG) Debt of a Subsidiary acquired as permitted in accordance with Section 5.02(f)(vii) hereof so long as (x) such Debt was in existence at the time of acquisition and was not incurred in connection with such acquisition and (y) the aggregate principal amount of all such Debt outstanding at any time shall not exceed $25 million;
(H) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt take or similar facilities pay contracts entered into by the Borrower and its Restricted Subsidiaries in the ordinary course of business;business and consistent with past practices; and
(I) Debt in respect of the Mezzanine Facility not to exceed a principal amount, in the aggregate, of $20,000,000, plus pay-in-kind interest accruing in accordance with the terms of the Mezzanine Facility as in effect on the date hereof.
Appears in 1 contract
Samples: Credit Agreement (Headwaters Inc)
Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries or Affiliates to create, incur, assume or suffer to exist, any Debt other thanDebt, except:
(i) Prepetition Debt outstanding on the Petition Date and set forth in Schedule 4.01(r) (including, without limitation, the Indebtedness under the Prepetition Loan Documents and the Senior Subordinated Notes) without giving effect to any extensions, renewals and replacements of any such Debt;
(ii) Debt under the Loan Documents;
(iii) Debt in respect of Hedge Agreements incurred in the ordinary course case of business and providing protection to the Borrower and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Borrower’s or any , Debt owed to a wholly owned Subsidiary of its Subsidiaries’ operationsthe Borrower, which Debt (x) shall, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(iv) (A) the case of Debt owed by any Loan Party to any other a Loan Party, constitute pledged debt, (By) Debt owed shall be on terms acceptable to any non-Debtor Subsidiary by any Loan Party the Lenders and (Cz) Debt owed by any non-Debtor Subsidiary to any Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 5.02(e)(vi), provided that, (x) to the extent that the Administrative Agent requires that an intercompany loan is shall be evidenced by a promissory note, such promissory note shall be notes in form and substance satisfactory to the Administrative AgentLenders and such promissory notes shall, in the case of Debt owed to a Loan Party, be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Lenders pursuant to the terms of the Security Agreement;
(ii) in the case of any Subsidiary of the Borrower, Debt owed to the Borrower or to a wholly owned Subsidiary of the Borrower, provided that, in each case, such Debt (x) shall, in the case of Debt owed to a Loan Party, constitute Pledged Debt, (y) each intercompany loan owed by a Loan Party to a non-Debtor Subsidiary shall be subject on terms acceptable to subordination provisions the Lenders and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent to be contained Lenders and such promissory notes shall, in the respective intercompany note, subordinating the obligations case of such Loan Party thereunder to the Obligations of such Loan Party under this Agreement and the other Loan Documents and (z) each intercompany loan Debt owed to a Loan Party shall Party, be pledged by that Loan Party as security for the Obligations of the holder thereof under the Collateral Loan Documents to which such holder is a party and will be subject delivered to a perfected Lien granted in favor of the Administrative Agent and the Lenders pursuant to the Ordersterms of the Security Agreement;
(viii) Debt secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases arising after the Closing Date not to exceed an aggregate principal amount equal to $2,500,000 at any time outstanding;
(vi) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(vii) Debt consisting of guaranty Obligations in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees case of the Borrower and its Subsidiaries;Subsidiaries (other than DD),
(viiiA) Permitted Indebtedness,
(B) Debt in respect contemplated by the Local Agreements and the State Agreement and the negotiations and agreements with the City of West Palm Beach, and
(C) Debt of any bankers’ acceptance, letter Person that becomes a Subsidiary of credit, warehouse receipt or similar facilities entered into the Borrower after the date hereof in accordance with the terms of Section 5.02(e) which Debt is existing at the time such Person becomes a Subsidiary of the Borrower (other than Debt incurred solely in contemplation of such Person becoming a Subsidiary of the Borrower); and
(iv) in the ordinary course case of business;DD, (A) the types of Debt described in clauses (a) - (d) of the definition of “Permitted Indebtedness” and (B) the Debt described in clauses (e) – (g) and (k) of the definition of “Permitted Indebtedness”.
Appears in 1 contract
Samples: Credit Agreement (Digital Domain Media Group, Inc.)
