Debt. Not, and not suffer or permit any Group Member to, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiaries: (a) Obligations under this Agreement and the other Loan Documents; (b) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000; (c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period; (d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent; (e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof; (f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5; (g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence; (h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business; (i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1; (j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement; (k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and (l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt.
Appears in 3 contracts
Samples: Credit Agreement (Merus Labs International Inc.), Credit Agreement (PDL Biopharma, Inc.), Credit Agreement (Merus Labs International Inc.)
Debt. Not, and not suffer or permit Neither it nor any Group Member toof its Restricted Subsidiaries will incur, create, incur, assume or suffer permit to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations under this Agreement and the Notes or other Loan DocumentsIndebtedness or any guaranty of or suretyship arrangement for the Notes or other Indebtedness;
(b) Debt secured by Liens permitted by Section 7.2(d)(including unfunded commitments) existing on the Effective Date which is disclosed in Schedule 9.01, and any Permitted Refinancings thereof; provided that renewals, extensions, refinancings and modifications (but not increases) thereof with financial covenants no more restrictive than those existing on the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000Effective Date;
(c) accounts payable (for the deferred purchase price of Property or services) from time to time incurred in the ordinary course of business which, if greater than 60 days past due, are being contested in good faith by appropriate proceedings if reserves adequate under GAAP shall have been established therefor;
(d) Debt under Hedging Agreements which is subordinated are for bona fide business purposes and are not speculative;
(e) Debt with respect to an ABS Facility subject to an intercreditor agreement similar to the Obligations form that currently exists under this Agreement and the other Loan Documents, Holdings ABS Facility in existence as of the Effective Date; provided that (iA) at the holder(s) time of the incurrence of such Debt, all such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis outstanding after giving pro forma effect to the incurrence of such Debt and shall not exceed two times the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 EBITDA for the applicable Computation Period), in each case UCLP Group for the most recently ended Computation Period recent Testing Period, (B) that neither UCLP, the Borrower nor any Subsidiary other than any ABS Subsidiary is liable for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), such Debt and (iiiC) the Fixed Charges Coverage Ratio, on a Pro Forma Basis no Default or Event of Default (both before and after giving pro forma effect to the incurrence of such Debt Debt) exists and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereofcontinuing;
(f) Contingent Obligations arising with respect other Debt of UCLP, the Borrower and any Significant Domestic Subsidiaries; provided that (A) no Default or Event of Default (both before and after giving pro forma effect to the incurrence of such Debt) exists and is continuing, (B) the maturity of such Debt is at least six (6) months after the Revolving Credit Maturity Date and the Term Loan Maturity Date (C) the Weighted Average Life to Maturity of such Debt is greater than the number of years (calculated to the nearest one-twelfth) to the after the Revolving Credit Maturity Date and the Term Loan Maturity Date and (D) such Debt has terms substantially similar to those customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5high-yield facilities;
(g) Debt arising from the honoring evidenced by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, Capital Lease Obligations and Purchase Money Indebtedness; provided that such Debt is extinguished within two in no event shall the aggregate principal amount of Capital Lease Obligations and Purchase Money Indebtedness permitted by this clause (2g) Business Days exceed an amount equal to five percent (5%) of notice to Borrower or the relevant Subsidiary of its incurrenceAggregate Commitments;
(h) Debt incurred in connection with the financing of insurance premiums respect to surety bonds, appeal bonds or customs bonds required in the ordinary course of businessbusiness or in connection with the enforcement of rights or claims of UCLP, UCI or any of its Restricted Subsidiaries or in connection with judgments that do not result in a Default or an Event of Default, provided that the aggregate outstanding amount of all cash surety bonds, appeal bonds and custom bonds permitted by this clause (h) shall not at any time exceed an amount equal to five percent (5%) of the Aggregate Commitments;
(i) guaranties Debt for borrowed money meeting the qualifications set forth in Section 9.01(f) assumed by Borrower UCLP or one of the Debt its Restricted Subsidiaries, or of any Loan Party that is a Wholly-Owned Restricted Subsidiary of Borrower UCLP acquired, pursuant to an acquisition or guaranties by any Subsidiary thereof merger permitted pursuant to the terms of the Debt this Agreement other than from UCI and its Subsidiaries; provided that up to $25,000,000 of Borrower in each case so long as such Debt is permitted under this outstanding at any time does not need to meet the qualifications of Section 7.19.01(f)(B), (C) and (D);
(j) Debt arising from agreements for borrowed money assumed by UCLP or one of the Borrower its Restricted Subsidiaries, or any Loan Party of a Restricted Subsidiary of the Borrower providing for indemnificationUCLP acquired, adjustment pursuant to an asset acquisition from Holdings or one of purchase price or similar obligations its Subsidiaries (including earn-outsother than UCLP and its Subsidiaries), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) other Debt not to exceed $15,000,000 in the aggregate;
(l) Debt of it owed to any Restricted Subsidiary and any Debt owed by a Loan Party Restricted Subsidiary of the Borrower issued and outstanding on the date on which such to it or to any other Restricted Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) that such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition shall be unsecured and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or subordinate to the Indebtedness on any property other than that which secured it before such Permitted Acquisition and (ii) terms reasonably satisfactory to the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any timeAdministrative Agent; and
(lm) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all Non-Recourse Foreign Debt used for such Permitted Seller Debt does not exceed CDN$2,000,000 at any time Foreign Subsidiary’s and/or its Foreign Subsidiaries’ working capital and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtgeneral business purposes.
Appears in 3 contracts
Samples: Senior Secured Credit Agreement (Exterran Partners, L.P.), Senior Secured Credit Agreement (Universal Compression Partners, L.P.), Senior Secured Credit Agreement (Universal Compression Partners, L.P.)
Debt. Not, and not suffer or permit any Group Member toNo Debtor will incur, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations under this Agreement and the other Loan DocumentsObligations;
(b) Debt secured accounts payable and other accrued expenses, liabilities or other obligations to pay (for the deferred purchase price of Property or services) from time to time incurred in the ordinary course of business which are not greater than ninety (90) days past the date of invoice or delinquent or which are being contested in good faith by Liens permitted by Section 7.2(d), appropriate action and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000for which adequate reserves have been maintained in accordance with GAAP;
(c) unsecured intercompany Debt which is subordinated between Debtors to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in extent permitted by Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower9.05; provided that all such Debt shall be evidenced is not held, assigned, transferred, negotiated or pledged to any Person other than a Debtor, and, provided further, that any such Debt owed by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note Debtor shall be subordinated to the Obligations hereunder in a manner on terms satisfactory to the Agent, including as set forth in the Loan Guarantee;
(ed) Debt described on Schedule 7.1 as endorsements of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds negotiable instruments for collection in the ordinary course of business, provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(he) debt of the Debtors under Capital Leases entered into prior to the Petition Date and set forth on Schedule 9.02(e) hereto;
(f) to the extent set forth on Schedule 9.02(f), Debt incurred of the Debtors in existence on the Petition Date in respect of performance, bid, surety or similar bonds or surety obligations for the account of the Debtors, in each case, to the extent required by any Governmental Requirements applicable to the Debtors and otherwise in connection with the financing operation of insurance premiums the Oil and Gas Properties of the Debtors, together with all replacements, extensions and renewals thereof made in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnificationExisting Senior Indentures, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any timeExisting Second Lien Loan Documents and (iii) the Existing Obligations; and
(lh) Permitted Seller Debt; provided that (iDebt for borrowed money outstanding on the Petition Date and set forth on Schedule 9.02(e) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debthereto.
Appears in 3 contracts
Samples: Restructuring Support and Lock Up Agreement (Legacy Reserves Inc.), Restructuring Support and Lock Up Agreement (Legacy Reserves Inc.), Credit Agreement (Legacy Reserves Inc.)
Debt. NotParent and the Borrower will not, and will not suffer or permit any Group Member Consolidated Subsidiary to, create, incur, assume or suffer permit to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(ai) Obligations Debt created under this Agreement and the other Loan Documents;
(bii) Debt secured by Liens permitted by Section 7.2(d)in respect of the Senior Notes, the New Senior Notes (Issued 2010) and the New Senior Notes (Issued 2011) in an aggregate principal amount of all such Debt not exceeding $440,000,000 at any Permitted Refinancings thereoftime outstanding; provided that the net cash proceeds of the New Senior Notes (Issued 2010) shall be applied to redeem the Senior Notes until redeemed in full (it being understood that to the extent New Senior Notes (Issued 2010) are issued prior to the date that the Senior Notes may be redeemed pursuant to their terms and any redemption notice delivered with respect thereto, the Senior Notes may remain outstanding until the first date that they are permitted to be so redeemed);
(iii) Debt under the Term Loan Documents in an aggregate principal amount not to exceed (a) $135,000,000 in respect of term loans and (b) €40,000,000 in respect of the Revolving Facility (as defined in the Term Loan/Euro RCF Agreement);
(iv) (a) Debt among the Loan Parties, (b) subject to Section 11.5, Debt owed by a Loan Party to another member of the Group that is not a Loan Party, (c) Debt among the Foreign Consolidated Subsidiaries (other than Loan Parties), (d) Debt owed by the Foreign Consolidated Subsidiaries of the Borrower to the Loan Parties and (e) the LuxFinCo-U.S. Holdings Note, provided in the case of Debt owed by the Foreign Consolidated Subsidiaries of the Borrower to the Loan Parties incurred after the Closing Date, the aggregate principal amount of such Debt outstanding shall not exceed $25,000,000 at any one time when aggregated with the Investments made by the Loan Parties in the Equity Interests of Foreign Consolidated Subsidiaries of the Borrower as permitted under Section 11.5(b); provided further (i) all such Debt shall be evidenced by promissory notes and, except with respect to any Debt owing to any Foreign Consolidated Subsidiary, all such notes shall, subject to the Intercreditor Agreement, be subject to the Security Interest of the Agent, and (ii) except with respect to any intercompany Debt among Foreign Consolidated Subsidiaries (other than Loan Parties), all such Debt shall be unsecured and subordinated in right of payment to the payment in full of the Debt pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to Agent;
(v) Guarantees by the Borrower of Debt of any Consolidated Subsidiary of the Borrower and by any Consolidated Subsidiary of Debt of the Borrower or any other Consolidated Subsidiary of the Borrower, provided that Guarantees by the Borrower or any Subsidiary Loan Party of the Borrower of Debt of any Consolidated Subsidiary that is not a Loan Party shall be subject to Section 11.5;
(vi) Debt in respect of Hedging Agreements;
(vii) Debt incurred by the Borrower or any Consolidated Subsidiary of the Borrower constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including letters of credit in respect of workers’ compensation claims or self-insurance;
(viii) Debt outstanding on the date hereof and listed on Annex VI and any refinancings, refundings, renewals, extensions or replacements thereof (without shortening the maturity of, or increasing the principal amount thereof (except to the extent of fees, premiums and interest on such Debt and payable in connection with such refinancings, refundings, renewals, extensions or replacements thereof));
(ix) Debt of a Consolidated Subsidiary acquired pursuant to a Permitted Acquisition (or Debt assumed by the Parent or any Wholly-Owned Subsidiary of the Parent pursuant to a Permitted Acquisition as a result of a merger or consolidation or the acquisition of an asset securing such Debt), so long as (A) such Debt was not incurred in connection with, or in anticipation or contemplation of, such Permitted Acquisition, (B) other than in the case of such Debt of the Permitted Acquisition of the target referred to as “Drummet”, the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
$20,000,000 at any one time outstanding and (cC) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability such Debt of the financial covenants therein Permitted Acquisition of the target referred to Computation Periods ending on or after March 31as “Drumet”, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence aggregate principal amount of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Periodexceed $107,000,000 Polish zlotys at any one time outstanding;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(gx) 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 such Debt is extinguished within two five (25) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(hxi) without duplication, Debt permitted as Investments pursuant to Section 11.5;
(xii) Debt incurred with respect to workmen’s compensation claims, self-insurance, performance bonds, surety bonds, appeal bonds or other similar bonds required in connection with the financing ordinary course of insurance premiums business that do not result in a Default or an Event of Default;
(xiii) Debt of the Borrower or any Consolidated Subsidiary of the Borrower consisting of take-or-pay obligations contained in supply arrangements entered into in the ordinary course of business;
(ixiv) guaranties by Borrower additional Debt (whether or not secured, including without limitation, Capital Lease Obligations, mortgage financings or purchase money obligations) and any refinancings, refundings, renewals, extensions or replacements thereof (without shortening the maturity of, or increasing the principal amount thereof (except to the extent of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as fees, premiums and interest on such Debt is permitted under this Section 7.1and payable in connection with such refinancings, refundings, renewals, extensions or replacements thereof)); provided that the aggregate principal amount of all such Debt shall not exceed $25,000,000 for all such Debt at any time outstanding;
(jxv) Debt Debt, if any, arising from agreements of the Borrower and the Consolidated Subsidiaries providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Consolidated Subsidiary otherwise permitted under this Agreement;
(xvi) Debt, if any, arising from the contingent payment in respect of the Merger pursuant to Section 2.10 of the Merger Agreement;
(a) Debt of any Acquired Loan Party or any Foreign Consolidated Subsidiary of the Borrower (whether or not secured), consisting of local lines of credit incurred in the ordinary course of business of such Acquired Loan Party or Foreign Consolidated Subsidiary of the Borrower and not guaranteed by Parent, the Borrower or any Loan Party Subsidiary (other than any Acquired Loan Party) and any refinancings, refundings, renewals, extensions or replacements thereof (without shortening the maturity of, or increasing the principal amount thereof (except to the extent of fees, premiums and interest on such Debt and payable in connection with such refinancings, refundings, renewals, extensions or replacements thereof)); provided that the Borrower aggregate principal amount of all such Debt shall not exceed the United States dollar equivalent of $40,000,000 at any time outstanding and (b) the Fortis Line of Credit and any refinancings, refundings, renewals, extensions or replacements thereof; provided that the aggregate principal amount of all such Debt under this clause (b) shall not exceed the United States dollar equivalent of $10,000,000 at any time outstanding;
(xviii) The Luxembourg Equity Arrangements to the extent constituting Debt;
(xix) Permitted Additional Indebtedness in an aggregate principal amount of all such Debt not exceeding $200,000,000 at any time outstanding, and any refinancings, refundings, renewals, extensions or replacements thereof (without shortening the maturity of, or increasing the principal amount thereof (except to the extent of fees, premiums and interest on such Debt and payable in connection with such refinancings, refundings, renewals, extensions or replacements thereof));
(xx) Debt incurred by the Parent or any of its Consolidated Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including earn-outsincluding, Debt consisting of the deferred purchase price of property acquired in a Permitted Acquisition), in each case entered into or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of the Parent or any such Consolidated Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions Acquisitions; and
(xxi) Refinancing Indebtedness to the extent that 100% of the cash proceeds therefrom (net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses) are, substantially concurrently with the receipt thereof, applied solely to the prepayment of Term Loans or Incremental Loans (as defined in the disposition Term Loan/Euro RCF Agreement) being so refinanced in full in accordance with of the Term Loan/Euro RCF Agreement on a dollar-for-dollar basis (including all accrued interest, fees and premiums (if any)); provided that (A) Parent and its Subsidiaries shall be in pro forma compliance with the covenant set forth in Section 11.12 as of the last day of the most recently ended fiscal quarter after giving effect to the incurrence of such Debt, (B) before and after giving effect to the incurrence of any businessRefinancing Indebtedness, assets or Stock permitted by this Agreement;
each of the conditions set forth in Section 4.03 of the Term Loan/Euro RCF Agreement shall be satisfied, and (kC) Debt the Borrower shall deliver to Agent at least five Business Days prior to the incurrence of such Refinancing Indebtedness (i) a certificate of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g)Financial Officer, together with any Permitted Refinancing thereof; provided thatall relevant financial information reasonably requested by Agent, demonstrating compliance with clauses (iA) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (yB) is not secured by any Lien created in connection with or in anticipation of this clause (provided that such Permitted Acquisition or on any property other than certificate shall be conclusive evidence that which secured it before such Permitted Acquisition terms and conditions satisfy such requirements unless Agent provides notice to the Borrower of its objection during such five Business Day period) and (ii) in the aggregate outstanding principal case of Permitted First Priority Refinancing Debt, any customary legal opinions and/or reaffirmation agreements reasonably requested by Agent. In the event that any item of Debt meets more than one of the categories set forth above, the Borrower in its sole discretion may classify such item of Debt and only be required to include the amount and type of all such Debt does not exceed CDN$2,000,000 in one or more of such clauses, at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtits election.
Appears in 3 contracts
Samples: Loan and Security Agreement (WireCo WorldGroup Poland Holdings Sp. z.o.o.), Loan and Security Agreement (1295728 Alberta ULC), Loan and Security Agreement (1295728 Alberta ULC)
Debt. Not, and not suffer or permit Neither the Borrower nor any Group Member toSubsidiary will incur, create, incur, assume or suffer permit to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) the Notes, the Direct Pay Letter of Credit or other Obligations under this Agreement and or any guaranty of or suretyship arrangement for the Notes or other Loan DocumentsObligations;
(b) Debt secured by Liens permitted by Section 7.2(d)of the Borrower or any Subsidiary existing on the Closing Date which is reflected in the Financial Statements or is disclosed in Schedule 9.01, and any Permitted Refinancings renewals or extensions (but not increases) thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated accounts payable (for the deferred purchase price of Property or services) from time to time incurred in the Obligations ordinary course of business which, if greater than 90 days past the invoice or billing date, are being contested in good faith by appropriate proceedings if reserves adequate under this Agreement and the other Loan Documents, provided that GAAP shall have been established therefor;
(d) (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereofcapital leases, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013)Equipment Leases, and (iii) purchase money Debt which in each purchase money Debt case shall not exceed 100% of the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to lesser of the incurrence of such Debt total purchase price and the application fair market value of the proceeds thereofProperty acquired as determined at the time of acquisition, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
provided all Debt incurred pursuant to this clause (d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agentnot exceed $10,000,000 per fiscal year;
(e) Subordinated Debt described on Schedule 7.1 so long as of the Closing Date, and any Permitted Refinancing thereofBorrower has delivered a Compliance Certificate concurrently with the issuance thereof demonstrating pro forma compliance with Article IX;
(f) Contingent Obligations arising with respect to customary indemnification obligations prepayments for services rendered in favor the ordinary course of purchasers business provided that no default exists in connection with dispositions permitted under Section 7.5;delivery of the service for which any such prepayments were made.
(g) Debt arising from between and among the honoring by a bank or Borrower and/or any Guarantors (other financial institution of a check, draft or similar instrument drawn against insufficient funds in than the ordinary course of business, provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrenceParent);
(h) Debt incurred obligations in connection respect of Hedging Agreements entered into in compliance with the financing of insurance premiums in the ordinary course of businessSection 8.08;
(i) guaranties by Borrower surety bonds and similar instruments of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of nature and for the Debt of Borrower purposes described in each case so long as such Debt is permitted under this Section 7.1Schedule 7.02, item 1;
(j) Debt arising from agreements obligations of Waste Corporation Texas under the Borrower or any Loan Party Subsidiary of Installment Sale Agreement and the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;Related Documents; and
(k) other Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower disclosed or a Subsidiary of the Borrower described in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller DebtSchedule 9.01.
Appears in 2 contracts
Samples: Credit Agreement (Wca Waste Corp), Credit Agreement (Wca Waste Corp)
Debt. NotThe Borrower will not, and will not suffer or permit any Group Member Restricted Subsidiary to, incur, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations the Loans, any Notes or other Indebtedness arising under this Agreement and the Loan Documents or any guaranty of or suretyship arrangement for the Loans, any Notes or other Indebtedness arising under the Loan Documents;, including any deferred put premiums.
(b) Debt secured by Liens permitted by Section 7.2(d), of the Borrower and any Permitted Refinancings thereof; provided its Restricted Subsidiaries existing on the date hereof that is reflected in the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;Financial Statements.
(c) accounts payable and accrued expenses, liabilities or other obligations to pay the deferred purchase price of Property or services, from time to time incurred in the ordinary course of business which are not greater than sixty (60) days past the date of invoice or delinquent or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP.
(d) Debt which (including guarantees) under Capital Leases not to exceed $25,000,000.
(e) Debt associated with bonds or surety obligations required by Governmental Requirements in connection with the operation of the Oil and Gas Properties.
(f) intercompany Debt between the Borrower and any Restricted Subsidiary or between Restricted Subsidiaries to the extent permitted by Section 9.05(g); provided that such Debt is not held, assigned, transferred, negotiated or pledged to any Person other than the Borrower or one of its Wholly-Owned Subsidiaries, and, provided further, that any such Debt owed by either the Borrower or a Guarantor shall be subordinated to the Obligations Indebtedness on terms set forth in the Guaranty Agreement.
(g) endorsements of negotiable instruments for collection in the ordinary course of business.
(h) Debt under any Senior Notes outstanding on the Effective Date and any Permitted Refinancing Debt in respect thereof.
(i) Debt under any Senior Notes issued after the Effective Date, provided that (1) at the time of incurring such Debt (a) no Default has occurred and is then continuing and (b) no Default would result from the incurrence of such Debt after giving effect to the incurrence of such Debt (and any concurrent repayment of Debt with the proceeds of such incurrence), (2) such Debt does not have any scheduled amortization prior to one year after the Maturity Date, (3) such Debt does not mature sooner than one year after the Maturity Date, (4) the terms of such Debt are not materially more onerous, taken as a whole, than the terms of this Agreement and the other Loan Documents, provided that (i5) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 any guarantees thereof are on prevailing market terms for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), similar situated companies and (iii6) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt Borrowing Base is adjusted as contemplated by Section 2.07(e) and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to makes any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted prepayment required under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;3.04(c)(iii).
(j) other Debt arising from agreements not to exceed $25,000,000 in the aggregate at any one time outstanding. For the avoidance of the Borrower or any Loan Party Subsidiary doubt, an issue of the Borrower providing for indemnification, adjustment Senior Notes may be comprised of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition Debt only a portion of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any constitutes Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) to the extent the aggregate outstanding principal amount thereof exceeds the current principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller DebtSenior Notes being refinanced or replaced.
Appears in 2 contracts
Samples: Senior Revolving Credit Agreement (Petrohawk Energy Corp), Senior Revolving Credit Agreement (Petrohawk Energy Corp)
Debt. Not, and The Borrower will not suffer or permit any Group Member to, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesother than:
(a) Obligations Debt arising under this Agreement Agreement, the Notes and the other Loan Documents;
(b) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt arising the Borrower’s Custodian consisting of overnight extensions of credit 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums Custodian in the ordinary course of business;
(ic) guaranties by Borrower Debt in respect of judgments or awards that have been in force for less than the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case applicable period for taking an appeal so long as such judgments and awards do not constitute an Event of Default and so long as execution is not levied thereunder and in respect of which the Borrower (i) shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review or (ii) shall have obtained an unsecured performance bond, and Debt is permitted under this Section 7.1in respect of such unsecured performance bond;
(jd) Debt (other than Debt for borrowed money) arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or portfolio investments and investment techniques arising in the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary ordinary course of the Borrower issued and outstanding on Borrower’s business to the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) extent that such Debt (x) was not incurred in connection is permissible under the Investment Company Act and consistent with or in anticipation of such Permitted Acquisition the Borrower’s Investment Policies and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any timeRestrictions; and
(le) Permitted Seller Debt incurred under reverse repurchase agreement or credit default swaps so long as the aggregate amount of the Debt under such agreements and swaps (calculated by reference to the notional amount of such Debt; ) does not exceed, in the aggregate, fifteen percent (15%) of the Borrower’s Total Assets, provided that in no event shall the Borrower (i) enter into or utilize Financial Contracts other than in the aggregate ordinary course of business for hedging or investment purposes in accordance with its Investment Policies and Restrictions, (ii) borrow money or create leverage under any arrangement other than (A) from the Banks hereunder, (B) on an overnight basis from the Custodian to the extent provided in clause (b) above or (C) in connection with reverse repurchase agreements or credit default swaps to the extent provided for in clause (e) hereof, or (iii) issue or be or remain liable for or have outstanding principal amount of all such Permitted Seller Debt does any “senior security” (as defined in the Investment Company Act), except that the Borrower may borrow from the Banks pursuant to this Agreement. The Borrower will not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtissue or have outstanding any preferred stock.
Appears in 2 contracts
Samples: Credit Agreement (Blackrock Debt Strategies Fund, Inc.), Credit Agreement (Blackrock Corporate High Yield Fund Vi, Inc.)
Debt. Not, and not suffer or permit any Group Member Subsidiary to, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt secured by Liens permitted by Section 7.2(d)of the Company and/or any Subsidiary existing, and any Permitted Refinancings thereofor pursuant to commitments existing, on the Effective Date; provided that Debt or other obligations in excess of $5,000,000 in the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000be permitted under this Section 11.1(b) only if set forth on Schedule 11.1(b);
(c) after a Qualified IPO, Debt which is subordinated unsecured in an aggregate amount at any one time outstanding not to exceed the Obligations under this Agreement greater of (x) $75,000,000 and (y) 2.50% of Consolidated Total Assets at the other Loan Documents, time of Incurrence; provided that (i) no Unmatured Event of Default or Event of Default shall have occurred and be continuing on the holder(s) date of incurrence of such Debt enter into or could reasonably be expected to occur as a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence result thereof, (ii) the Borrower documents governing such Debt do not contain covenants (including quantitative covenants and its Subsidiaries shall be financial covenants) which are, taken as a whole, more restrictive in complianceany material respect than the covenants contained in this Agreement (other than covenants or other provisions (x) applicable only to periods after the Maturity Date then in effect or (y) made applicable to this Agreement), on a Pro Forma Basis giving effect to (iii) the incurrence final maturity of such Debt shall be no earlier than ninety days after the Maturity Date then in effect and (iv) the application weighted average life to maturity of such Debt shall not be shorter than the weighted average life to maturity of any Loans or Commitments outstanding as of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case time of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Periodissuance thereof; provided that clauses (i), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), ii) and (iii) shall not apply to any bridge facility on customary terms if the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect long-term indebtedness that such bridge facility is to the incurrence of be converted into satisfies such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;clauses.
(d) Hedging Obligations incurred so long as of the time of incurrence they were entered into for bona fide hedging purposes and not for speculation and Debt incurred in the ordinary course of Borrower to any Loan Party that is a Wholly-Owned Subsidiary business in respect of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note netting services, overdraft protections and otherwise in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agentconnection with deposit accounts;
(e) Debt described on Schedule 7.1 as (including with respect to Financing Lease Obligations and purchase money Debt) of the Closing DateCompany and/or any Subsidiary Incurred to finance the acquisition, construction, lease, expansion, development, installation, repair, replacement, relocation, renewal, maintenance, upgrade or improvement of property (real or personal), equipment or any other asset (whether through the direct purchase of property, equipment or other assets or any Person owning such property, equipment or other assets); provided that, at the time of incurrence thereof and any Permitted after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such Debt then outstanding pursuant to this clause (e) (when aggregated with the aggregate principal amount of Refinancing thereofDebt Incurred pursuant to Section 6.01(n) in respect of such Debt then outstanding) shall not, except as contemplated by Section 6.01(n), exceed an amount equal to the greater of (x) $25,000,000 and (y) 1.50% of Consolidated Total Assets at the time of incurrence;
(f) Contingent Guarantee Obligations arising with respect to customary indemnification obligations in favor of sellers, adjustment of purchase price or similar obligations or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of the Company or any Subsidiary pursuant to such agreements, in each case in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with dispositions permitted under Section 7.511.4;
(g) Debt Guarantee Obligations arising from with respect to guaranties (which may include payment obligations) provided by the honoring by a bank Company or other financial institution any Subsidiary on behalf of a check, draft the Company or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant any Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(h) (i) guaranties by Borrower Debt of the Company to any Subsidiary and (ii) Debt of any Subsidiary to the Company or any other Subsidiary; provided that (A) Debt of any Subsidiary that is not a Loan Party owing to any Loan Party shall be subject to Section 11.9 and (B) Debt of any Loan Party owing to any Subsidiary that is not a Wholly-Owned Subsidiary Loan Party shall be unsecured and subordinated to the Obligations on terms reasonably acceptable to the Administrative Agent;
(i) Debt of Borrower the Company or guaranties by any Subsidiary thereof (excluding Guarantee Obligations) in an aggregate amount at any one time outstanding not to exceed (i) prior to a Qualified IPO, the greater of (x) $25,000,000 and (y) 1.50% of Consolidated Total Assets at the Debt time of Borrower in each case so long as such Debt is permitted under this Section 7.1Incurrence, and (ii) after a Qualified IPO, the greater of (x) $75,000,000 and (y) 2.50% of Consolidated Total Assets at the time of incurrence;
(j) assumed Debt arising from agreements of any Person that becomes a Subsidiary after the Effective Date; provided that (i) on a pro forma basis after giving effect to the incurrence of such Debt, the Company will be in compliance with the financial covenant in Section 11.12.2 as of the Borrower or any Loan Party Subsidiary last day of the Borrower providing for indemnificationmost recently ended Computation Period, adjustment of purchase price (ii) such Debt exists at the time such Person becomes a Subsidiary and is not created in contemplation or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions such Person becoming a Subsidiary, (iii) neither the Company nor any Subsidiary that was not an obligor with respect to such Debt prior to such Person becoming a Subsidiary shall become an obligor for such Debt; and (iv) such Debt shall not be secured by a Lien on any property of the Company or any Subsidiary that did not secure such Debt prior to such Person becoming a Subsidiary (except for proceeds and the disposition products thereof and, in the case of multiple financings of equipment provided by any businesslender, assets or Stock permitted other equipment financed by such lender); provided, further, that, (i) prior to a Qualified IPO, the aggregate principal amount of Debt that is not listed on Schedule 11.1(j) incurred in reliance of this Agreementclause (j) shall not exceed the greater of (x) $25,000,000 and (y) 1.5% of Consolidated Total Assets at any time outstanding and (ii) after a Qualified IPO, the aggregate principal amount of Debt that is not listed on Schedule 11.1(j) incurred in reliance of this clause (j) shall not exceed the greater of (x) $50,000,000 and (y) 3.0% of Consolidated Total Assets at any time outstanding;
(k) Debt of a Loan Party the Company or any Subsidiary (other than any letter of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, credit) (i) such Debt (x) was not pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance or return of money bonds or other similar obligations incurred in connection with or in anticipation the ordinary course of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition business and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt.surety bonds, performance bonds or similar instruments to support any of the foregoing items;
Appears in 2 contracts
Samples: Credit Agreement (Bright Health Group Inc.), Credit Agreement (Bright Health Group Inc.)
Debt. Not, and not suffer Incur or permit any Group Member to, create, incur, assume or suffer of its Subsidiaries to exist Incur any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesother than:
(ai) Obligations Debt under this Agreement and the other Loan Documents;
(bii) Debt secured of the Loan Parties under the New Third Lien Documents outstanding at any time in an aggregate principal amount not to exceed $90,000,000 plus paid-in-kind interest thereon in accordance with the New Third Lien Documents, as the same may be refinanced or replaced from time to time, so long as all of the following conditions are met: (A) such refinancing or replacement does not shorten the maturity date or weighted average life to maturity date of the Debt being refinanced or replaced, (B) such refinancing or replacement does not increase the non-default interest rate by Liens permitted by Section 7.2(dmore than 200 basis points (unless the Loan Documents are also amended to permit an equivalent increase), (C) the priority of the Liens and any Permitted Refinancings thereofguaranties thereunder do not change (and continue to be subject to the Third Lien Intercreditor and Subordination Agreement), (D) the principal amount of the refinanced or replaced Debt does not exceed the maximum principal amount of Debt permitted to be incurred under this clause (ii) and (E) the covenants, defaults and other material provisions thereof are not made materially more restrictive;
(iii) Capitalized Leases (other than Surviving Debt) not to exceed in the aggregate $7,500,000;
(iv) the Surviving Debt; provided that the Assumed BTI Debt may be refinanced or replaced from time to time, so long as all of the following conditions are met: (A) such refinancing or replacement does not shorten the maturity date or weighted average life to maturity date of the Debt being refinanced or replaced, (B) such refinancing or replacement does not increase the non-default interest rate by more than 200 basis points (unless the Loan Documents are also amended to permit an equivalent increase), (C) such Debt shall be unsecured, (D) the principal amount of the refinanced or replaced Debt does not exceed the principal amount of the Debt immediately prior to such refinancing or replacement, (E) to the extent such refinanced or replaced Debt includes any provision that may require mandatory prepayment of such Debt prior to its scheduled maturity the same shall be subject to an intercreditor and subordination agreement acceptable to the Lenders and (F) the covenants, defaults and other material provisions thereof are not made materially more restrictive;
(i) Debt under the First Lien Loan Documents in an aggregate principal amount not to exceed the result of (a) $230,000,000 plus paid-in-kind interest thereon in accordance with the First Lien Loan Documents minus (b) the sum of any principal prepayments made on the First Lien Debt after the Amendment Effective Date in accordance with the First Lien Credit Agreement, as the same may be refinanced or replaced from time to time, so long as all of the following conditions are met: (A) such refinancing or replacement does not shorten the maturity date or weighted average life to maturity date of the Debt at any time outstanding shall being refinanced or replaced, (B) such refinancing or replacement does not increase the non-default interest rate by more than 200 basis points (unless the Loan Documents are also amended to permit an equivalent increase), (C) the priority of the Liens and guaranties thereunder do not change (and continue to be subject to the Second Lien Intercreditor and Subordination Agreement), (D) the principal amount of the refinanced or replaced Debt does not exceed CDN$1,000,000;
(c) the maximum principal amount of Debt which is subordinated permitted to the Obligations be incurred under this Agreement and the other Loan Documents, provided that clause (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013v), and (iiiE) the Fixed Charges Coverage Ratiocovenants, on defaults and other material provisions thereof are not made materially more restrictive and (ii) Debt Incurred under the First Lien Loan Documents after a Pro Forma Basis giving effect Default or Event of Default consisting of protective advances made by the First Lien Lenders directly to Persons unrelated to the incurrence Borrower for the sole purpose of such Debt and protecting or preserving the application value of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation PeriodCollateral;
(dvi) Debt of the Borrower under Hedge Agreements; provided, that such agreements (A) are designed solely to any protect the Loan Party that is a Wholly-Owned Subsidiary of Borrower Parties against fluctuations in foreign currency exchange rates or interest rates and (B) do not increase the Debt of the obligor thereunder outstanding at any Loan Party that is time other than as a Wholly-Owned Subsidiary result of Borrower to Borrower fluctuations in foreign currency exchange rates or another Loan Party that is a Wholly-Owned Subsidiary interest rates or by reason of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form fees, indemnities and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agentcompensation payable thereunder;
(evii) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereofIntentionally omitted;
(fviii) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5Intentionally omitted;
(gix) Intentionally omitted;
(x) Intentionally omitted;
(xi) Intentionally omitted;
(xii) Debt arising from in respect of Ordinary Course Obligations in an aggregate amount not to exceed $10,000,000 at any time outstanding; and
(xiii) Debt of the honoring type described in clause (j) of the definition of “Debt” which is secured by a bank or other financial institution of a checkPermitted Lien, draft or similar instrument drawn against insufficient funds to the extent that such Debt is Incurred in the ordinary course of businessbusiness and is not the subject of an enforcement, provided collection, execution, levy or foreclosure proceeding and is not duplicative of Debt Incurred pursuant to Section 5.02(b)(xii). Notwithstanding any other provision under this Section 5.02(b), (A) the maximum amount of Debt that such Debt is extinguished within two the Parent or a Subsidiary may incur pursuant to Sections 5.02(b)(i), (2ii), (iii), (v) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
and (hxii) Debt incurred shall not exceed $393,215,294 in connection with the financing of insurance premiums in the ordinary course of business;
aggregate principal amount at any one time outstanding, and (iB) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by may Incur Debt owed to any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any other Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller DebtParty.
Appears in 2 contracts
Samples: Credit Agreement (Itc Deltacom Inc), Credit Agreement (Itc Deltacom Inc)
Debt. NotCreate, and not incur, assume or suffer to exist (or permit any Group Member to, Subsidiary to create, incur, assume or suffer to exist exist) any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(ai) Obligations Debt under this Agreement and the other Loan Documents;,
(bii) Debt secured by Liens permitted by Section 7.2(d), outstanding on the Effective Date and listed on Schedule 5.02(b) as of such date and any Permitted Refinancings refinancings, refundings, renewals or extensions thereof; provided that the aggregate principal amount of all such Debt is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any time outstanding shall existing commitments unutilized thereunder and the direct or any contingent obligor with respect thereto is not exceed CDN$1,000,000;changed, as a result of or in connection with such refinancing, refunding, renewal or extension,
(ciii) Debt which is subordinated in respect of capital leases, synthetic debt obligations, and purchase money obligations for real property or equipment within the limitations set forth in Section 5.02(a)(iii),
(iv) Unsecured Debt of a Subsidiary of a Borrower owed to such Borrower or of one Borrower owed to the Obligations other Borrower, which Debt shall (i) to the extent required by the Agent, be evidenced by promissory notes and (ii) be on terms (including subordination terms) acceptable to the Agent,
(v) Guarantees of any Borrower in respect of Debt otherwise permitted hereunder (other than clause (vii) of this Section 5.02(b)) of any other Borrower,
(vi) obligations (contingent or otherwise) existing or arising under this Agreement and the other Loan Documentsany Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the holder(sordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party,
(vii) Debt secured by one or more Liens on any real property of any Borrower; provided that (i) such Debt enter into a subordination agreement with Agent on behalf of is not guaranteed by, or otherwise recourse to, the Lender on terms Borrowers and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower Liens securing such Debt shall attach to no property other than such real property; and
(viii) Debt not contemplated by the above provisions in an aggregate principal amount not to exceed $75,000,000 at any time outstanding; provided that immediately before and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of such Debt and Debt, the application Borrowers are in pro forma compliance with each of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt5.03.
Appears in 2 contracts
Samples: Credit Agreement (Scholastic Corp), Credit Agreement (Scholastic Corp)
Debt. Not, and not suffer or permit any Group Member to, createCreate, incur, guaranty, assume or suffer to exist exist, or permit any Debtof its Subsidiaries to create, except for the following incur, guaranty, assume or suffer to exist, any Debt of the Borrower and/or Loan Party Subsidiariesother than:
(ai) Obligations under this The Advances;
(ii) Subordinated Loans, provided, however, the aggregate amount of all Subordinated Loans, including any portion of the Initial Funding, shall not exceed US$12,000,000 in the aggregate and the entire amount of the Subordinated Loans shall at all times be subject to the Subordinated Loan Agreement and the other Loan DocumentsSubordination Agreement in all respects;
(biii) Debt secured by Liens permitted by Section 7.2(dused to refinance the Senior Debt in whole or in part (the "Replacement Senior Debt"), and any Permitted Refinancings thereof; provided that unless the aggregate Senior Debt is repaid in full:
(A) Replacement Senior Debt shall not replace Subordinated Loans;
(B) Replacement Senior Debt shall not exceed the principal amount of the Senior Debt prepaid;
(C) The Replacement Senior Debt shall have an equal or greater weighted average life to maturity than, and a final maturity date which is no earlier than, that of the Senior Debt being replaced;
(D) No Default shall have occurred and be continuing or shall arise as a result of the issuing of the Replacement Senior Debt;
(E) The annual average Projected SDSCR and minimum annual Projected SDSCR for the life of the Senior Debt and Replacement Senior Debt after giving effect to such refinancing shall not be less than the annual average Projected SDSCR and minimum annual Projected SDSCR prior to giving effect to such refinancing all as based on the Financial Model;
(F) The Lenders shall have the right of first refusal to provide such Replacement Senior Debt at upon the same (or more favorable to Borrower) terms and conditions as are set forth in a term sheet executed by any time outstanding third party lender and delivered to the Lenders; provided that, the Lenders shall have 10 business days from the date of delivery of such third-party lender's term sheet to exercise their right of first refusal; and
(G) The lenders providing the Replacement Senior Debt must enter into collateral sharing and intercreditor agreements satisfactory to the Lenders in their sole discretion.
(iv) Debt used to refinance the Subordinated Loans in whole or in part (the "REPLACEMENT SUBORDINATED DEBT"), provided that unless the Senior Debt is repaid in full:
(A) The aggregate amount of Replacement Subordinated Debt shall not exceed CDN$1,000,000US$12,000,000;
(cB) The Lenders providing the Replacement Subordinated Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt shall enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection the Secured Parties with dispositions permitted under Section 7.5;terms at least as favorable to the Secured Parties as the Subordination Agreement; and
(gC) No Default shall have occurred and be continuing as a result of the issuing of the Replacement Subordinated Debt.
(v) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds incurred in the ordinary course of business, provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or business for the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of deferred purchase price of property, conditional sale obligations or similar obligations (including earn-outs)under title retention agreements, in each case entered into in connection with Permitted Acquisitions or where the disposition maturity of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the anticipated useful life of the asset being financed, in a principal amount not to exceed in the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 US$1,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtoutstanding.
Appears in 2 contracts
Samples: Credit Agreement (Macquarie Infrastructure CO Trust), Credit Agreement (Macquarie Infrastructure CO Trust)
Debt. Not, and The Borrower will not suffer or permit any Group Member to, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesother than:
(a) Obligations Debt arising under this Agreement Agreement, the Notes and the other Loan Documents;
(b) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt arising the Borrower’s Custodian consisting of overnight extensions of credit 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums Custodian in the ordinary course of business;
(ic) guaranties by Borrower Debt in respect of judgments or awards that have been in force for less than the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case applicable period for taking an appeal so long as such Debt judgments and awards do not constitute an Event of Default and so long as execution is permitted under this Section 7.1;
(j) Debt arising from agreements not levied thereunder and in respect of which the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such Debt (x) was not incurred in connection with appeal or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with review or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount shall have obtained an unsecured performance bond, and Debt in respect of all such Debt does not exceed CDN$2,000,000 at any timeunsecured performance bond; and
(ld) Permitted Seller DebtDebt (other than Debt for borrowed money) arising in connection with portfolio investments and investment techniques arising in the ordinary course of the Borrower’s business to the extent that such Debt is permissible under the Investment Company Act and consistent with the Borrower’s Investment Policies and Restrictions; provided that in no event shall the Borrower (i) enter into or utilize Financial Contracts other than in the aggregate ordinary course of business for hedging or investment purposes in accordance with its Investment Policies and Restrictions, (ii) enter into reverse repurchase agreements, (iii) borrow money or create leverage under any arrangement other than (A) from the Banks hereunder or (B) on an overnight basis from the Borrower’s Custodian to the extent provided in clause (b) hereof, or (iv) issue or be or remain liable for or have outstanding principal amount of all such Permitted Seller Debt does any “senior security” (as defined in the Investment Company Act), except that the Borrower may borrow from the Banks pursuant to this Agreement. The Borrower will not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtissue or have outstanding any preferred stock.
Appears in 2 contracts
Samples: Credit Agreement (Baron Select Funds), Credit Agreement (Baron Select Funds)
Debt. Not(a) The Borrower shall not, and not suffer or nor shall it permit any Group Member Guarantor to, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesother than:
(ai) Obligations Debt under this Agreement and the other Loan Documents;
(bii) Debt outstanding on the Closing Date and described on Schedule 7.01(a) (including any extensions or renewals thereof provided that there is no increase in the principal amount thereof);
(iii) Debt in respect of any Hedging Agreement with a Lender or any Affiliate of a Lender entered into in the ordinary course of business to manage foreign currency or interest rate risk for the Borrower or any Loan Party;
(iv) Debt scheduled to mature after the Revolving Credit Maturity Date and the Term Loan Maturity Date;
(v) Debt of the Borrower to any Subsidiary or Debt of any Subsidiary to the Borrower or any other Subsidiary;
(vi) Debt (including, without limitation, Capitalized Lease Obligations) secured by Liens permitted by Section 7.2(ddescribed in clause (h) of the definition of Permitted Liens in an aggregate principal amount not to exceed Twenty Million and 00/100 Dollars ($20,000,000.00);
(vii) Debt that is convertible into equity interests of the Borrower, issued either pursuant to public issuances or private placements, and any Permitted Refinancings thereofwhether or not maturing prior to or after the later of the Revolving Credit Maturity Date and the Term Loan Maturity Date; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) holders of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory have no right to Agent and the Lender cause such Debt to be purchased, redeemed or otherwise repaid (in whole or in part) in cash prior to the Revolving Credit Maturity Date or the Term Loan Maturity Date. so long as (x) no Event of Default shall have occurred and be continuing at the time of the incurrence thereof, of such Debt or would result from the incurrence of such Debt and (iiy) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of such Debt, on a pro forma basis as if such incurrence of such Debt and had occurred on the application first (1st) day of the proceeds thereoftwelve-month period ending on the last day of the Borrower’s most recently completed fiscal quarter, the Borrower shall be in compliance with the financial covenants set forth in Section 7.13 7.04.
(butb) The Borrower shall not permit any of its Subsidiaries that is not a Guarantor, to create, incur, assume or suffer to exist any Debt other than:
(i) Debt of such Subsidiary to the Borrower or any other Subsidiary;
(ii) Debt existing on the Closing Date and described on Schedule 7.01(b) (including any extensions or renewals thereof provided that there is no increase in the case of principal amount thereof and including any additional advances under the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio Investment Quebec Facility so long as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Periodsuch advances do not exceed Five Million One Hundred Seventy-Five Thousand and 00/100 Canadian Dollars (CDN $5,175,000.00), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and ; and
(iii) Additional Debt in an aggregate principal amount not to exceed five percent (5%) of Consolidated Net Tangible Assets at any time outstanding; so long as (x) no Event of Default shall have occurred and be continuing at the Fixed Charges Coverage Ratio, on a Pro Forma Basis time of the incurrence of such Debt or would result from the incurrence of such Debt and (y) after giving effect to the incurrence of such Debt, on a pro forma basis as if such incurrence of such Debt and had occurred on the application first (1st) day of the proceeds thereof, for twelve-month period ending on the last day of the Borrower’s most recently ended Computation Period for which financial statements are availablecompleted fiscal quarter, the Borrower shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection compliance with the financing of insurance premiums financial covenants set forth in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt.7.04
Appears in 2 contracts
Samples: Credit Agreement (Rti International Metals Inc), Credit Agreement (Rti International Metals Inc)
Debt. NotHoldings and the Borrower shall not, and shall not suffer or permit any Group Member of its Restricted Subsidiaries to, create, incur, assume incur or suffer to exist maintain any Debt, except for other than the following Debt of the Borrower and/or Loan Party Subsidiaries:(collectively, “Permitted Debt”):
(a) Obligations Debt of Holdings and any of its Restricted Subsidiaries under this Agreement and the other Loan Documents;
(b) (i) Debt secured by Liens permitted by Section 7.2(d), described on Schedule 8.12 (it being understood and agreed that any such Debt that is repaid shall not be reborrowed) and any Permitted Refinancings thereofRefinancing Debt thereof and (ii) any intercompany Debt outstanding on the Closing Date;
(i) Capital Leases and purchase money Debt incurred to finance the acquisition, construction, repair, replacement, lease or improvement of any Equipment (as defined in Article 9 of the UCC) held for sale or lease or any fixed or capital assets (whether pursuant to a loan, a Capital Lease or otherwise) and (ii) any Refinancing Debt incurred to Refinance such Debt; provided that that, at the time of incurrence and after giving Pro Forma Effect thereto and the use of the proceeds thereof, the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
incurred under this clause (c) and then-outstanding of Holdings and its Restricted Subsidiaries , shall not, when taken together with the aggregate principal amount of Debt which is subordinated to the Obligations permitted under this Agreement and the other Loan DocumentsSection 8.12, provided that is secured by Liens incurred under clause (i) the holder(spp) of the definition of “Permitted Liens,” exceed the greater of (A) $20,000,000 and (B) 3.0% of Consolidated Total Assets (measured as of the date such Debt enter into a subordination agreement with Agent was incurred based upon the Section 6.2 Financials most recently delivered on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender or prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence such date of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Periodincurrence), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to (A) any Loan Party Restricted Subsidiary that is a Wholly-Owned not an Obligor owing to Holdings or any Restricted Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned not an Obligor, (B) any Restricted Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrowernot an Obligor owing to another Obligor; provided that all such the aggregate amount of Debt incurred under this clause (d)(B) is permitted to be incurred as an Investment pursuant to Section 8.11 or (C) any Obligor that is owing to Holdings or any Restricted Subsidiary that is not an Obligor; provided that the Debt incurred under this clause (d)(C) shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant subject to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to AgentSubordinated Intercompany Note;
(e) Debt described on Schedule 7.1 as incurred under Hedge Agreements, provided that such Hedge Agreements are entered into by a Borrower or Restricted Subsidiary of Holdings in the Closing Date, ordinary course of business and any Permitted Refinancing thereofnot for speculative purposes;
(f) Contingent Obligations arising with Guaranties by Holdings and its Restricted Subsidiaries in respect to customary indemnification obligations in favor of purchasers in connection with dispositions Debt of the Borrower or any of its Restricted Subsidiary otherwise permitted under this Agreement; provided that (i) if the Debt being guaranteed is Subordinated Debt, such Guaranties shall be subordinated in right of payment to the Guaranty of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Subordinated Debt, (ii) if the Debt being guaranteed by any Obligor is Debt of a Restricted Subsidiary that is not an Obligor, such Guaranty must be permitted to be incurred as an Investment pursuant to Section 7.58.11 and (iii) no Guaranty by any Restricted Subsidiary of any Debt of an Obligor shall be permitted unless such Restricted Subsidiary shall have also provided a Guaranty of the Obligations;
(gi) 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, funds; provided that such Debt is extinguished within two (2) five Business Days of notice to Borrower its incurrence and (ii) customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums rented in the ordinary course of business;
(ih) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by Obligor owing to any Subsidiary thereof of the other Obligor;
(i) Debt of Borrower any Obligor or Restricted Subsidiary in respect of (i) performance bonds, completion guarantees, surety bonds, appeal bonds, bid bonds, other similar bonds, instruments or obligations, in each case provided in the ordinary course of business (including to secure 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), but excluding any of the foregoing issued in respect of or to secure Debt for Borrowed Money; (ii) Debt owed to any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty, liability, or other insurance to any Obligor or any of its Restricted Subsidiaries, so long as the amount of such Debt is permitted not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the year in which such Debt is incurred and such Debt is outstanding only during such year, (iii) Cash Management Obligations and other Debt in respect of netting services, ACH arrangements, overdraft protection and other arrangements arising under this Section 7.1standard business terms of any bank at which any Obligor or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or in connection with Deposit Accounts incurred in the ordinary course or (iv) Debt consisting of accommodation Guaranties for the benefit of trade creditors of any Obligor or any Subsidiary issued by such Obligor or Subsidiary in the ordinary course of business;
(j) Debt arising from agreements incurred under this clause (j) and then outstanding in an aggregate principal amount, measured at the time of incurrence and after giving Pro Forma Effect thereto and the use of the Borrower proceeds thereof, not to exceed the greater of (x) $30,000,000 and (y) 4.5% of Consolidated Total Assets (measured as of the date such Debt was incurred based upon the Section 6.2 Financials most recently delivered on or prior to such date of incurrence);
(k) Debt (x) representing deferred compensation, severance and health and welfare retirement benefits to current and former employees, directors, consultants, partners, members, contract providers, independent contractors or other service providers of Holdings (or any Loan Party Subsidiary of Parent Entity thereof), the Borrower providing for indemnificationand the Restricted Subsidiaries incurred in the ordinary course of business, adjustment (y) consisting of purchase price indemnities or similar obligations (including earn-outs)created, in each case entered into incurred or assumed in connection with Permitted Acquisitions or Acquisitions, other Investments and the disposition Disposition of any business, assets or Stock permitted hereunder, other than Guaranties incurred by this Agreement;
any Person acquiring all or any portion of such business, assets or Stock for the purpose of financing such acquisition or (kz) Debt consisting of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not earnout obligations incurred in connection with or in anticipation of such any Permitted Acquisition and (y) is permitted hereunder not secured by any Lien created to exceed in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any timetime $20,000,000; andprovided that the holder of such earnout obligations shall have agreed to restrictions to be determined by the Agent and the Required Lenders and such earnout obligations are subordinated to the Obligations on terms and pursuant to documentation reasonably acceptable to the Agent and the Required Lenders;
(l) Debt consisting of (x) obligations of Holdings (or any Parent Entity thereof), the Borrower or the Restricted Subsidiaries under deferred compensation arrangements to their employees, directors, partners, members, consultants, independent contractors or other service providers, (y) other similar arrangements incurred by such Persons in connection with Permitted Seller DebtAcquisitions or (z) any other Investment permitted under Section 8.11;
(m) Debt consisting of promissory notes issued by the Restricted Subsidiaries to their current or former officers, directors, partners, members, and employees and their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes to finance the retirement, acquisition, repurchase, purchase or redemption of Stock of Holdings (or Stock of any Parent Entity or the Borrower) in each case permitted by Section 8.10;
(n) Debt consisting of (i) the financing of insurance premiums or (ii) take or pay obligations entered into in the ordinary course of business;
(o) Debt incurred pursuant to the First Financial Loan Documents, in an aggregate principal amount not to exceed $30,000,000 and any Refinancing Debt related thereto;
(p) Debt of any Restricted Subsidiary that is not an Obligor incurred under this clause (p); provided that (i) such Debt is not guaranteed by any Obligor, (ii) the aggregate outstanding principal amount holder of all such Permitted Seller Debt does not have, directly or indirectly, any recourse to any Obligor, whether by reason of representations or warranties, agreement of the parties, operation of law or otherwise, (iii) such Debt is not secured by any assets other than assets of such Restricted Subsidiary and its Subsidiaries and (iv) the aggregate amount of Debt incurred under this clause (p) shall not exceed CDN$2,000,000 at any time the greater of (x) $10,000,000 and (y) no Group Member other than 1.5% of Consolidated Total Assets (measured as of the Borrower will be obligated date such Debt was incurred based upon the Section 6.2 Financials most recently delivered on or prior to such date of incurrence);
(q) ABL Facility Indebtedness in an aggregate principal amount not to exceed the amount permitted under the ABL Intercreditor Agreement and any Refinancing Debt thereof not prohibited by the terms of the ABL Intercreditor Agreement;
(r) Guaranties incurred in the ordinary course of business (and not in respect of Debt for borrowed money) in respect of obligations to suppliers, customers, franchisees, lessors, licensees, sublicensees or distribution partners;
(i) unsecured Debt in respect of obligations of Holdings or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money and (ii) unsecured Debt in respect of intercompany obligations of Holdings or any Restricted Subsidiary in respect of accounts payable incurred in connection with goods sold or services rendered in the ordinary course of business and not in connection with the borrowing of money;
(t) the IO-TEQ Debt in an aggregate amount not to exceed $413,080.00;
(u) solely to the extent that the Permitted Seller Sale Leaseback Transaction has occurred, Attributable Indebtedness incurred in connection with the Permitted Sale Leaseback Transaction;
(v) solely to the extent that the Permitted Sale Leaseback Transaction has not occurred, purchase money Debt incurred to finance (or refinance) the acquisition of the Specified FTS Real Property in an aggregate principal amount not to exceed $50,000,000 (not including any reasonable and document out-of-pocket fees, costs and expenses incurred or assessed in connection with such Debt);
(w) Debt evidenced by the Back-Stop Note, the Closing Date Note and the Equify Bridge Note, in each case, in an aggregate principal amount not to exceed the outstanding principal amount thereof on the Closing Date (such capped amount not including interest paid in kind in respect thereof at the rate per annum in effect thereunder on the Closing Date); and
(x) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (w) above. For purposes of determining compliance with this Section 8.12, in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above clauses, the Borrower, in its sole discretion, may classify (but not reclassify) such item of Debt (or any portion thereof) and will only be required to include the amount and type of such Debt in one or, if it satisfies the criteria for more than one clause above, can be allocated among one or more of the above clauses. The accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Debt shall not be deemed to be an incurrence of Debt for purposes of this Section 8.12. Notwithstanding anything herein to the contrary, neither Equify Financial LLC (nor any of its Affiliates) shall loan or otherwise provide any Debt or any commitment to provide Debt to any Obligor or any other Subsidiary of Holdings (other than (i) Back-Stop Note, the Closing Date Note and the Equify Bridge Note and (ii) purchase money equipment financing to be provided by Equify Financial LLC to Flotek, BPC and their respective Subsidiaries for so long as such Persons (x) are not Subsidiaries of Holdings or (y) are Specified Unrestricted Subsidiaries).
Appears in 2 contracts
Samples: Term Loan Credit Agreement (ProFrac Holding Corp.), Term Loan Credit Agreement (ProFrac Holding Corp.)
Debt. Not, United Meridian will not and will not suffer or permit any Group Member toof its Subsidiaries, including the Company, to incur, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations under this Agreement the Indebtedness and the other Loan DocumentsCanadian Indebtedness and any guarantees thereof;
(b) Debt secured by Liens permitted by Section 7.2(d)of United Meridian and its Subsidiaries, including the Company, existing on the date of this Agreement which is reflected in the Financial Statements or is disclosed in Schedule 9.01, and any Permitted Refinancings renewals, refinancings and extensions thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated created under leases which, in accordance with generally accepted accounting principles in effect on the date of this Agreement, have been recorded or should have been recorded as capital leases, in an aggregate amount not to the Obligations exceed $10,000,000 at any one time outstanding; provided that UMC Canada may not incur, create, assume or suffer to exist any Debt under this Agreement and the other Loan Documents, provided that (iSection 9.01(c) the holder(s) in an aggregate amount in excess of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period$2,000,000 at any one time outstanding;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower the Company which is not a Material Subsidiary, on terms approved by the Administrative Agent and the Co-Agents (which approval shall not be unreasonably withheld), which Debt is Non-recourse (except to the extent permitted in Section 9.01(m)) to United Meridian and its Subsidiaries, except to the stock (or other ownership interest) of the Subsidiary owing such Debt and to the Property of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; such Subsidiary, provided that all such Debt shall be evidenced by a global intercompany demand note Property is not included in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for most recent calculation of the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to AgentBorrowing Base;
(e) (i) Subordinated Debt described on Schedule 7.1 as incurred pursuant to the Indenture and any refinancings permitted by Section 9.20(a) of this Agreement or a consent thereunder; provided that in no event may the aggregate principal amount of all Subordinated Debt exceed $150,000,000 at any one time outstanding without the consent of all of the Closing DateLenders and Canadian Lenders, and (ii) other Subordinated Debt that is issued on terms reasonably satisfactory to each of the Administrative Agent and the Co-Agents with respect to maturity, interest rate, covenants and subordination language and any Permitted Refinancing thereofrefinancings thereof permitted by Section 9.20(a) of this Agreement or a consent thereunder, provided that in connection with the issuance of any such Subordinated Debt under this clause (ii), the Borrowing Base is redetermined;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor Without limitation of purchasers in connection with dispositions permitted under Section 7.59.01(h), Debt of United Meridian or any of its Subsidiaries, including the Company, created, incurred or assumed after the date hereof; provided that the aggregate outstanding principal amount of such Debt shall not exceed $10,000,000 at any one time outstanding;
(g) Debt arising from owed by United Meridian or any of its Subsidiaries to United Meridian or any of its Subsidiaries to the honoring extent permitted by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, Sections 9.03; provided that such Debt is extinguished within two on terms (2including, without limitation, subordination provisions) Business Days of notice reasonably satisfactory to Borrower or the relevant Subsidiary of its incurrenceAdministrative Agent (which approval shall not be unreasonably withheld);
(h) Without limitation of Section 9.01(f), Debt incurred under or attributable to letters of credit not issued pursuant to this Agreement in connection with the financing of insurance premiums an amount not to exceed $5,000,000 in the ordinary course aggregate at any one time outstanding; provided that the aggregate fees associated with having such letters of businesscredit issued on behalf of the Company or its Subsidiaries are less than the fees specified in Section 2.04 for the issuance of Letters of Credit in the same amounts;
(i) guaranties Debt, on terms approved by Borrower the Administrative Agent and the Co- Agents (which approval shall not be unreasonably withheld), incurred by partnerships, of which the Debt of Company or any Loan Party that Subsidiary is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such general partner and which Debt is permitted under this Section 7.1Non-recourse to the Company or such Subsidiary for the payment thereof (including no recourse to the Company's or such Subsidiary's interest in such partnership);
(j) Debt arising from agreements of under the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this AgreementHavre Credit Facility;
(k) Debt not to exceed $20,000,000 in the aggregate at any one time outstanding under guarantees or other similar surety obligations with respect to Debt owed by the Government of Equatorial Guinea or any Person exercising rights of a Loan Party Subsidiary sovereign on its behalf;
(l) Debt not to exceed $10,000,000 in the aggregate at any one time outstanding under completion guarantees, performance guarantees or other similar surety obligations with respect to Debt related to the proposed Abidjan LPG plant;
(m) Without limitation of Section 9.01(l), Debt not to exceed $10,000,000 in the aggregate at any one time outstanding under completion guarantees, performance guarantees or other similar surety obligations with respect to Debt that is either (1) Debt described in Section 9.01(d) or (2) Debt of Persons who are not Subsidiaries of United Meridian which is Non-recourse to United Meridian and its Subsidiaries and any of their Property except to the stock (or other ownership interest) of the Borrower issued and outstanding on the date on which Person owing such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any timeDebt; and
(ln) Permitted Seller Debt; provided that (i) Endorsements of checks and other instruments in the aggregate outstanding principal amount ordinary course of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect business for purposes of Permitted Seller Debtcollection.
Appears in 1 contract
Debt. Not, and not suffer or permit any Group Member to, createCreate, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations Debt under this Agreement and the other Loan Documents;
(b) Debt secured by Liens permitted by Section 7.2(d), outstanding on the date hereof and listed on Schedule 7.03 and any Permitted Refinancings refinancings, refundings, renewals or extensions thereof; provided that the aggregate principal amount of all such Debt is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any time outstanding shall not exceed CDN$1,000,000existing commitments unutilized thereunder;
(c) intercompany Debt which owed between any Subsidiary of the Borrower and the Borrower, provided that the payment of such Debt is subordinated subordinate to the payment of the Obligations under this Agreement pursuant to Section 3.2 of the Guaranty or otherwise in a manner satisfactory to the Administrative Agent;
(d) the Trust Notes and the Senior Notes;
(e) Subordinated Debt;
(f) obligations in respect of any trade payables or other Loan Documentscurrent operating liabilities not more than 90 days past due, except for such trade payables or other current operating liabilities which (i) are being contested in good faith by appropriate proceedings and adequate reserves therefor have been established and reflected in the financial statements of such Person in accordance with GAAP, or (ii) do not exceed $200,000 in the aggregate outstanding at any time;
(g) so long as there exists no Default both before and after giving effect to any such transaction, obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or arising under any Swap Contract, provided that (i) the holder(ssuch obligations are (or were) of entered into by such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds Person in the ordinary course of businessbusiness for the purpose of directly mitigating risks associated with liabilities, provided that commitments, investments, assets, or property held or reasonably anticipated by such Debt is extinguished within two (2) Business Days of notice to Borrower Person, or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums changes in the ordinary course value of businesssecurities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap 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) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements Guaranty Obligations of the Borrower or any Loan Party Subsidiary Guarantor in respect of Debt otherwise permitted hereunder of the Borrower providing for indemnificationor any other Guarantor, adjustment of purchase price or similar obligations including the Senior Notes and (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(kii) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary Guaranty Obligations of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation respect of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any timeTrust Guaranties; and
(l) Permitted Seller Debt; provided that (i) the so long as there exists no Default before or after giving effect thereto, Debt not otherwise permitted pursuant to clauses (a) through (h) above in an aggregate outstanding principal amount not in excess of all such Permitted Seller Debt does not exceed CDN$2,000,000 five percent (5%) of the Borrower’s Net Worth at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtoutstanding.
Appears in 1 contract
Debt. NotWithout the prior consent of the Majority Tranche B Lenders, and not suffer or permit neither Lessee, Guarantor nor any Group Member toSubsidiary will incur, create, incur, assume or suffer permit to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(ai) Obligations under this Agreement Debt (including unfunded commitments) of Lessee or Guarantor existing on the Closing Date which is reflected in the Financial Statements or is disclosed in Schedule 11, and the other Loan Documentsany renewals, extensions, refinancings and modifications (but not increases) thereof;
(bii) accounts payable (for the deferred purchase price of Property or services) from time to time incurred in the ordinary course of business which, if greater than 90 days past the invoice or billing date, are being contested in good faith by appropriate proceedings if reserves adequate under GAAP shall have been established therefor;
(iii) Debt secured of Lessee under Hedging Agreements which are for bona fide business purposes and are not speculative; and
(iv) Operating Equipment Lease Obligations;
(v) other Debt of Lessee and its Domestic Subsidiaries, incurred or assumed, not to exceed $35,000,000 in the aggregate;
(vi) Debt evidenced by Liens permitted by Section 7.2(d)Capital Lease Obligations and Purchase Money Debt, and any Permitted Refinancings thereof; provided that in no event shall the aggregate principal amount of all such Capital Lease Obligations and Purchase Money Debt permitted by this clause (vi) exceed $30,000,000 at any time outstanding shall not exceed CDN$1,000,000outstanding;
(cvii) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt arising from the honoring by a bank surety bonds, appeal bonds or other financial institution of a check, draft or similar instrument drawn against insufficient funds custom bonds required in the ordinary course of businessbusiness or in connection with the enforcement of rights or claims of the Lessee or any of its Subsidiaries or in connection with judgments that do not result in a Lease Default or a Lease Event of Default, provided that the aggregate outstanding amount of all cash surety bonds, appeal bonds and custom bonds permitted by this clause (vii) shall not at any time exceed $5,000,000; and
(viii) Debt of any Foreign Subsidiary of Lessee or Guarantor the proceeds of which Debt are used for such Foreign Subsidiary's and/or their Foreign Subsidiaries' working capital and general corporate purposes ("Foreign Subsidiary Indebtedness")
(ix) Debt for borrowed money assumed by Lessee or one of its Subsidiaries, or of a Subsidiary of Lessee acquired, pursuant to an acquisition or merger permitted pursuant to the terms of this Agreement, provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums shall not exceed $65,000,000 in the ordinary course of business;
(i) guaranties by Borrower of the Debt of aggregate at any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as time and such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with with, or in anticipation or contemplation of such Permitted Acquisition permitted acquisition or merger; and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than provided further that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does permitted pursuant to this clause (ix) that has a scheduled maturity date that is earlier than the Revolver shall not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt$30,000,000.
Appears in 1 contract
Samples: Participation Agreement (BRL Universal Equipment Corp)
Debt. NotNo Restricted Company shall, and not suffer directly or permit any Group Member toindirectly, create, incur, assume or suffer to exist any direct, indirect, fixed, or contingent liability for any Debt, except for the following Debt of the Borrower and/or Loan Party SubsidiariesOTHER THAN:
(a) Obligations under this Agreement and the other Loan DocumentsThe Obligation;
(b) Existing Debt;
(c) Debt secured incurred by Liens any Restricted Company under the Multi-Year Agreement;
(d) Debt arising under the Existing Agreement;
(e) Debt incurred by any Restricted Company under any Financial Hedge with any Lender or an Affiliate of any Lender;
(f) Debt between Restricted Companies, SO LONG AS any such inter-company Debt owed by Borrower to any other Restricted Company is unsecured; or Debt of any Restricted Company to the Receivables Subsidiary; and
(g) Debt of any Restricted Company not otherwise permitted by Section 7.2(dthis SECTION 7.12, SO LONG AS (i) no Default or Potential Default exists on the date any such Debt is created, incurred, or assumed or arises after giving effect to such Debt incurrence; and (ii) if such Debt is secured, on the date any such secured Debt is created, incurred, or assumed, the principal amount of such secured Debt, when aggregated with the principal amount of all other secured Debt of the Restricted Companies incurred in accordance with this SECTION 7.12(g), does not exceed 10% of the book value of the consolidated assets of the Restricted Companies determined as of the date of, and any Permitted Refinancings thereof; provided that with respect to, the Current Financials and the related Compliance Certificate. Notwithstanding anything in this SECTION 7.12 to the contrary, the aggregate principal amount of all such Debt at of the Restricted Subsidiaries may not exceed, on any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to date of determination, the Obligations under this Agreement and the other Loan Documents, provided that SUM of (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf 10% of the Lender on terms book value of the consolidated assets of the Restricted Companies, determined as of the date of, and conditions satisfactory to Agent with respect to, the Current Financials and the Lender prior to the incurrence thereofrelated Compliance Certificate, PLUS, (ii) on and after the Borrower effective date of any designation of Intermedia and its Subsidiaries shall be in complianceas "RESTRICTED SUBSIDIARIES" hereunder, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Existing Debt does of Intermedia and its Subsidiaries existing on the Intermedia Merger Date (as renewed, refinanced, or extended, but not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtincreased).
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Worldcom Inc/ga//)
Debt. Not, and not suffer or permit any Group Member to, createCreate, incur, assume or suffer to exist any Funded Debt or Current Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(ai) Obligations under this Agreement and Funded Debt represented by the other Loan Documents1993 Notes;
(bii) additional Funded Debt, including without limitation Funded Debt secured represented by Liens permitted by Section 7.2(d)Term Notes, and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding Company shall not exceed CDN$1,000,000;
create, incur or assume any such Funded Debt unless (cA) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf as of the Lender on terms end of the fiscal quarter most recently completed at the time such Funded Debt is proposed to be created, incurred or assumed, and conditions satisfactory to Agent and as of the Lender end of each of the eleven consecutive fiscal quarters completed immediately prior to thereto, Operating Income Available for Debt Expense for the incurrence thereofimmediately preceding twelve-month period shall have been not less than 125 % of Debt Expense for such twelve-month period, (iiB) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis upon giving effect to the incurrence of such Debt thereto and the application of the proceeds thereof, on a pro forma projected basis (such projections to fairly present the Company's proposed business plans and the Company's good faith estimate as to matters projected therein based on reasonable business assumptions, and to be reasonably based on such assumptions and the best information available to the officers of the Company) as of the end of each fiscal year thereafter ending through and including the fiscal year ending December 3.1, 2013, Operating Income Available for Debt Expense for the immediately preceding twelve-month period shall be projected to be not less than 135% of Debt Expense for such twelve-month period, (C) the proceeds of such Funded Debt shall be used exclusively to acquire assets which will constitute part of the Project and the amount of such Funded Debt shall not exceed 80% of the lesser of the cost or the fair value of the assets to be acquired with the financial covenants set forth in Section 7.13 (butproceeds thereof, in such fair value to be reasonably established by the case board of directors of the Maximum Total Leverage RatioCompany, determining (D) the maximum permissible Maximum Total Leverage Ratio as 0.25 less terms of such Funded Debt shall (1) with respect to Funded Debt other than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period)Funded Debt represented by Term Notes, in each case for the most recently ended Computation Period for include a maturity date which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending shall be on or after March 31June 15, 2013, (2) require payment in equal quarterly installments of principal and interest from incurrence through maturity (i.e., quarterly mortgage-style amortization) and (3) not be amended after issuance with respect to interest rate or payment terms without the consent of the Required Holder(s), and (iiiE) in accordance with the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application provisions of the proceeds thereofCollateral Agency Agreement, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Funded Debt shall be evidenced become subject thereto and secured by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to Liens under the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations Mortgage in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of Collateral Agent and any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation holder of such Permitted Acquisition and (y) is Funded Debt not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any timealready a party thereto shall become a party thereto; and
(liii) Permitted Seller Debt; Current Debt evidenced by the Revolving Note or Revolving Notes, provided that (i) the aggregate outstanding principal amount Company shall be free of all such Permitted Seller Current Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than for a period of 60 consecutive days in each calendar year commencing with the Borrower will be obligated in respect of Permitted Seller Debtcalendar year ending December 31,1994.
Appears in 1 contract
Samples: Master Shelf and Revolving Credit Agreement (NRG Energy Inc)
Debt. NotThe Borrower shall not, and shall not suffer or permit any Group Member of its Subsidiaries to, create, incur, assume or suffer to exist otherwise become or remain liable with respect to, any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesfor:
(a) Obligations Debt arising hereunder and under this Agreement and the other Loan Documents;
(b) Unsecured Debt secured by Liens permitted by Section 7.2(d)outstanding on the Effective Date and described in Schedule 7.1, and any Permitted Refinancings thereof; provided that the aggregate in each case in a principal amount of all such Debt at any one time outstanding shall not to exceed CDN$1,000,000the amount set forth on Schedule 7.1 hereof;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) Endorsements of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 negotiable instruments for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums collection in the ordinary course of business;
(id) guaranties Current liabilities (exclusive of Debt) for accounts payable and expense accruals incurred or assumed in the ordinary course of business, provided such accounts payable have not remained unpaid for a period of ninety (90) days after the same became due unless currently being contested in good faith or by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1appropriate proceedings;
(je) Debt arising from agreements of the Borrower Liabilities for taxes, assessments, governmental charges or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued levies not yet due and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any timepayable; and
(lf) Permitted Seller Debt; provided Liabilities incurred under Hedge Transactions permitted pursuant to Section 7.14 hereof.
(g) Unsecured Debt incurred by the Borrower pursuant to a line(s) of credit entered into by the Borrower after the Effective Date with any Bank or any other financial institution, provided, however, that (i) the terms, covenants and conditions of said line(s) of credit may be no more burdensome or onerous on the Borrower and its Subsidiaries than the terms, conditions and covenants contained in this Credit Agreement, (ii) at the time said Debt is incurred, the aggregate outstanding principal amount of all advances, including the proposed advance (the "Swing Loans") made to the Borrower by any Bank or any such Permitted Seller Debt other financial institution pursuant to such line(s) of credit does not exceed CDN$2,000,000 at any one time outstanding $5,000,000.00, (iii) after giving pro forma effect to any proposed Swing Loan, the aggregate amount of the Utilized Credit does not exceed the Available Commitment, and (iv) the proceeds of all Swing Loans are used by the Borrower solely for cash management purposes. Swing Loans shall not be considered a utilization of the Total Commitment or the Commitment of such Bank hereunder for purposes of calculating the commitment fee due pursuant to the provisions of Section 2.5(a), but shall be included in the determination of the Utilized Credit;
(h) Purchase money Debt in respect of property acquired by the Borrower and its Subsidiaries in the ordinary course of business provided, however, that the aggregate amount of all Debt incurred by the Borrower and its Subsidiaries pursuant to this Section 7.1(h) and Section 7.1(i) shall not exceed $3,000,000 at any one time outstanding;
(i) Additional unsecured Debt not permitted by subclauses (a) through (h), provided, however, that the aggregate amount of all Debt incurred by the Borrower and its Subsidiaries pursuant to this Section 7.1(i) and Section 7.1(h) shall not exceed
(j) Unfunded Vested Liabilities with respect to any Existing Plan, provided, however, that (x) such Existing Plan at all times meets all applicable funding requirements contained in Section 412 of the Code and (y) no Group Member other than the Borrower will be obligated is at all times in respect of Permitted Seller Debtcompliance with Section 7.15(b).
Appears in 1 contract
Debt. NotContract, and not create, incur, assume or suffer to exist any Debt, or permit any Group Member toof its Material Subsidiaries to contract, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiaries:
(a) Obligations under this Agreement and the other Loan Documents;
(bi) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (iii) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender incurred prior to the incurrence thereofPetition Date (including any capital lease obligations assumed after the Petition Date), (iiiii) Debt arising from Investments among the Borrower and its Subsidiaries shall be that are permitted hereunder, (iv) Debt in compliancerespect of any overdrafts and related liabilities arising from treasury, on a Pro Forma Basis giving effect to the incurrence depository and cash management services or in connection with any automated clearing house transfers of such funds; (v) Debt and the application consisting of the proceeds thereof, with the financial covenants set forth in guaranties permitted by Section 7.13 5.02(c); (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(dvi) Debt of Foreign Subsidiaries owing to third parties in an aggregate outstanding principal amount (together with the aggregate outstanding principal amount of all other Debt of Foreign Subsidiaries permitted under this subsection (b)) not in excess of $400,000,000 at any time outstanding and Debt of Canadian Subsidiaries of the Borrower under the Canadian Revolving Facility, (vii) Debt constituting purchase money debt and Capitalized Lease obligations (not otherwise included in subclause (ii) above) in an aggregate outstanding amount not in excess of $75,000,000, (viii)(x) Debt in respect of Hedge Agreements entered into in the ordinary course of business to protect against fluctuations in interest rates, foreign exchange rates and commodity prices and (y) Debt arising on and after the Petition Date under the Credit Card Program, provided that the aggregate amount of Debt in respect of (A) Secured Hedge Agreements and Secured Credit Card Obligations shall not exceed $50,000,000 at any time outstanding and (B) Hedge Agreements subject to Liens permitted under Section 5.02(a)(vi) shall not exceed $75,000,000 at any time outstanding, (ix) indebtedness which may be deemed to exist pursuant to any Loan Party that is a Wholly-Owned Subsidiary of Borrower surety bonds, appeal bonds or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the similar obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers incurred in connection with dispositions permitted under Section 7.5;
any judgment not constituting an Event of Default, (gx) Debt arising from the honoring by a bank or other financial institution indebtedness in respect of a checknetting services, draft or similar instrument drawn against insufficient funds customary overdraft protections and otherwise in connection with deposit accounts in the ordinary course of business, provided that such Debt is extinguished within two and (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(hxi) Debt incurred not otherwise permitted hereunder in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the an aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt$20,000,000.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Dana Corp)
Debt. NotThe Borrower shall not, and shall not suffer or permit any Group Member of the other GCI Entities to, create, incur, assume assume, become or be liable in any manner in respect of, or suffer to exist exist, any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiaries:
(a) Obligations Debt under this Agreement the Loan Papers and the other Loan Documents;
Revolver/Term Credit Agreement, (b) Debt secured by Liens permitted by Section 7.2(dunder the Senior Notes and other Debt in existence on the date hereof as shown on Schedule 5.08a hereto, and renewals, extensions (but not increases), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
refinancings thereof on terms substantially similar thereto and on terms no more restrictive, (c) Debt which is subordinated to the Obligations under this Agreement trade payables incurred and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds paid in the ordinary course of business, provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(hd) Debt permitted to be incurred in connection with as Contingent Liabilities pursuant to Section 7.03 hereof, (e) Debt between the financing of insurance premiums in the ordinary course of business;
Borrower and its Restricted Subsidiaries, (if) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt there exists no Default or Event of Default in existence at the time incurred and none is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided thatcaused thereby, (i) such $5,000,000 in Debt constituting Capital Leases outstanding in the aggregate at any one time, (xii) was not incurred in connection with or in anticipation unsecured subordinated Debt of such Permitted Acquisition the Borrower on terms and conditions acceptable to the Administrative Agent and each Lender, subordinated to the Facility pursuant to the subordination language set forth on Schedule 7.02 hereto, (g) Debt under the Project Agreements, and (yh) is not secured by any Lien created in connection with so long as (i) there exists no Default or in anticipation Event of such Permitted Acquisition or on any property other than that which secured it Default both before such Permitted Acquisition and after giving effect to its incurrence, (ii) the aggregate outstanding maturity of such Debt is later than the Maturity Date, (iii) the weighted average life of such Debt is longer than the weighted average life of the Revolving Loan, (iv) the Term Loan B Agreement contains representations and warranties, conditions precedent, affirmative covenants, negative covenants and events of default substantially similar to the representations and warranties, conditions precedent, affirmative covenants, negative covenants and Events of Default in this Agreement (and in no case may such terms be more restrictive than the terms of this Agreement) and (v) the Borrower has paid in immediately available funds an amendment fee to the Administrative Lender for the benefit of those Lenders that executed and delivered the Ninth Amendment to the Administrative Agent prior to noon (eastern time) on December 17, 2001, such amendment fee to be in an amount equal to 40 basis points on each such executing Lender's pro rata portion of the Revolving Commitment, the Borrower and the other GCI Entities may incur senior secured Debt under the Term Loan B Agreement, and the Term Loan B Obligations, in a maximum principal amount not to exceed the lesser of all such Debt does not exceed CDN$2,000,000 at any time; and
(lA) Permitted Seller Debt; provided that $65,000,000, or (iB) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than gross cash purchase price paid by the Borrower will for the acquisition of the assets of WCIC.
SECTION 10. Amendment to Section 7.04. Section 7.04 in Article VII of the Credit Agreement shall be obligated amended and restated in respect of Permitted Seller Debt.its entirety as follows:
Appears in 1 contract
Debt. NotCreate, and not incur, assume, or suffer to exist, or permit any Group Member to, Subsidiary to create, incur, assume assume, or suffer to exist exist, any Debt, except for the following except:
(1) Debt of the Borrower and/or Loan Party Subsidiaries:
(a) Obligations under this Agreement and or the other Loan DocumentsNotes;
(b2) Debt secured described in Schedule 6.2, but no renewals, extensions, or refinancings thereof;
(3) Accounts payable to trade creditors for goods or services which are not aged more than ninety (90) days from billing date incurred in the ordinary course of business and paid within the specified time, unless contested in good faith and by Liens permitted appropriate proceedings;
(4) Debt of any Subsidiary to the Borrower provided such Debt complies with any applicable requirements set forth in Section 6.8;
(5) Debt of the Borrower arising with respect to Borrower's commitment to provide funds to any Financed Franchisee or to any Financed Subsidiary so long as such commitment to provide funds complies with the requirements set forth in Section 6.8;
(6) Debt which constitutes indebtedness for borrowed money owed by Section 7.2(d)a Financed Franchisee to a Person other than the Borrower which indebtedness is in existence on the date such Financed Franchisee becomes a Financed Subsidiary, and any Permitted Refinancings thereof; renewal, extension or refinancing of such Debt, provided, that as of and after giving effect to such Financed Franchisee becoming a Financed Subsidiary no Default or Event of Default shall exist or be continuing, and provided further, that the aggregate outstanding principal amount of all such Debt shall at any no time exceed the principal amount of such Debt outstanding shall not exceed CDN$1,000,000on the date such Financed Franchisee becomes a Financed Subsidiary;
(c7) Debt which is subordinated to secured by Liens of the Obligations under this Agreement type described in Clause (11) of Section 6.1;
(8) Debt of the type permitted by Sections 6.4 and 6.9;
(9) the BCI Subordinated Debt, the 2004 Subordinated Debt and other Loan DocumentsSubordinated Debt, provided provided, that (ia) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of such Subordinated Debt, no Default or Event of Default shall exist or be continuing and (b) if such Subordinated Debt and had been incurred on the application last day of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period recent fiscal period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect have been delivered to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the ObligationsSection 5.8(2) or (3), and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;no Default or Event
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h10) Debt incurred in connection with Hedging Agreements entered into by the financing of insurance premiums in the ordinary course of businessBorrower or any Subsidiary;
(i11) guaranties by Borrower of the The Debt of any Loan Party described as item 8 on Schedule 4.14, provided, that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
may only be repaid (ja) Debt arising from agreements by the issuance of common stock of the Borrower or any Loan Party Subsidiary of (b) in cash if after the Restatement Effective Date but prior to such payment the Borrower providing for indemnification, adjustment has received in cash marketing support funds from its vendors in an aggregate amount of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or not less than the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any timeDebt; and
(l12) Permitted Seller Debt; provided that Unsecured Debt not of the type described in the foregoing Clauses (i1) the through (11) in an aggregate outstanding principal amount of all such Permitted Seller Debt does not to exceed CDN$2,000,000 at any one time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt$2,500,000.
Appears in 1 contract
Samples: Secured Credit Agreement (Einstein Noah Bagel Corp)
Debt. Not, All Debt represented by the Notes and not suffer or permit any Group Member to, create, incur, assume or suffer to exist any Debt, except the Guarantees is being incurred for proper purposes and in good faith. Based on the following Debt financial condition of the Borrower and/or Loan Party Subsidiaries:
(a) Obligations under this Agreement and Company as of the other Loan Documents;
(b) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated Closing Date after giving effect to the Obligations under this Agreement and receipt by the other Loan DocumentsCompany of the proceeds from the sale of the Securities hereunder, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf fair saleable value of the Lender Group Companies’ assets exceeds the amount that will be required to be paid on terms or in respect of the Group Companies’ existing Debts and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, other liabilities (including contingent liabilities) as they mature; (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application present fair saleable value of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case assets of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less Group Companies is greater than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for amount that will be required to pay the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability probable liabilities of the financial covenants therein to Computation Periods ending Group Companies on or after March 31, 2013), their respective Debt as they become absolute and mature; (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect Group Companies are able to the incurrence of such realize upon their assets and pay their Debt and other liabilities (including contingent obligations) as they mature; (iv) the application Group Companies’ assets do not constitute unreasonably small capital to carry on their respective businesses as now conducted and as proposed to be conducted including their respective capital needs taking into account the particular capital requirements of the business conducted by the Group Companies, and projected capital requirements and capital availability thereof; and (v) the current cash flow of each of the Group Companies, together with the proceeds thereofthe Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid. None of the Group Companies intends to incur Debts beyond its ability to pay such Debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its Debt). The Company has no knowledge of any facts or circumstances which lead it to believe that it or any other Group Companies will file for reorganization or liquidation under the most recently ended Computation Period for which financial statements are availablebankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date. None of the Group Companies is, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower or has reason to believe it is likely to be, in default with respect to any Loan Party that Debt and no waiver of default is currently in effect. None of the Group Companies has agreed or consented to cause or permit in the future (upon the happening of a contingency or otherwise) any of its property, whether now owned or hereafter acquired, to be subject to a Lien. None of the Group Companies is a Wholly-Owned Subsidiary of Borrower party to, or otherwise subject to any provision contained in, any instrument evidencing Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing DateGroup Companies, and any Permitted Refinancing thereof;
agreement relating thereto or any other agreement (f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt arising from the honoring by a bank including, but not limited to, its charter or other financial institution of a checkorganizational document) which limits the amount of, draft or similar instrument drawn against insufficient funds in otherwise imposes restrictions on the ordinary course of businessincurring of, provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller DebtCompany.
Appears in 1 contract
Samples: Notes Purchase Agreement (China Security & Surveillance Technology, Inc.)
Debt. NotThe Borrower shall not, and shall not suffer or permit any Group Member of its Restricted Subsidiaries to, create, incur, assume or suffer to exist otherwise become or remain liable with respect to, any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesfor:
(a) Obligations Debt arising hereunder and under this Agreement and the other Loan Documents;
(b) Unsecured Debt secured by Liens permitted by Section 7.2(d)outstanding on the Effective Date and described in Schedule 7.1, and any Permitted Refinancings thereof; provided that the aggregate in each case in a principal amount of all such Debt at any one time outstanding shall not to exceed CDN$1,000,000the amount set forth on Schedule 7.1 hereof;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) Endorsements of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 negotiable instruments for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums collection in the ordinary course of business;
(d) Current liabilities (exclusive of Debt) for accounts payable and expense accruals incurred or assumed in the ordinary course of business, provided such accounts payable have not remained unpaid for a period of ninety (90) days after the same became due unless currently being contested in good faith or by appropriate proceedings;
(e) Liabilities for taxes, assessments, governmental charges or levies not yet due and payable;
(f) Liabilities incurred under Hedge Transactions permitted pursuant to Section 7.14 hereof;
(g) Unsecured Debt incurred by the Borrower pursuant to a line(s) of credit entered into by the Borrower after the Effective Date with any Bank or any other financial institution, provided, however, that (i) guaranties the terms, covenants and conditions of said line(s) of credit may be no more burdensome or onerous on the Borrower and its Subsidiaries than the terms, conditions and covenants contained in this Credit Agreement, (ii) at the time said Debt is incurred, the aggregate principal amount of all advances, including the proposed advance (the "Swing Loans") made to the Borrower by Borrower any Bank or any such other financial institution pursuant to such line(s) of credit does not exceed at any one time outstanding $5,000,000.00, (iii) after giving pro forma effect to any proposed Swing Loan, the aggregate amount of the Debt Utilized Credit does not exceed the Available Commitment, and (iv) the proceeds of any Loan Party that is all Swing Loans are used by the Borrower solely for cash management purposes. Swing Loans shall not be considered a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof utilization of the Total Commitment or the Commitment of such Bank hereunder for purposes of calculating the commitment fee due pursuant to the provisions of Section 2.5(a), but shall be included in the determination of the Utilized Credit; provided, however, that if an advance made pursuant to the Swing Loans affects either the Applicable Eurodollar Margin or the Unavailable Fee Rate, Borrower shall provide Bank with written notice of such effect prior to each advance of funds made pursuant to the Swing Loans;
(h) Purchase money Debt in respect of property acquired by the Borrower and its Subsidiaries (other than the Restricted Subsidiaries) in each case so long as such the ordinary course of business provided, however, that the aggregate amount of all Debt is permitted under incurred by the Borrower and its Subsidiaries pursuant to this Section 7.17.1(h) and Section 7.1(i) shall not exceed $5,000,000 at any one time outstanding;
(i) Additional unsecured Debt not permitted by subclauses (a) through (h), provided, however, that the aggregate amount of all Debt incurred by the Borrower and its Subsidiaries (other than the Restricted Subsidiaries) pursuant to this Section 7.1(i) and Section 7.1(h) shall not exceed $5,000,000 at any one time outstanding;
(j) Debt arising from agreements Unfunded Vested Liabilities with respect to any Existing Plan, provided, however, that (x) such Existing Plan at all times meets all applicable funding requirements contained in Section 412 of the Code and (y) Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outsis at all times in compliance with Section 7.15(b), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;; and
(k) Unsecured subordinated Debt of a Loan Party Subsidiary outstanding under the Subordinated Intercompany Notes and any other intercompany Debt among Borrower and any of the Borrower issued and outstanding on the date on Restricted Subsidiaries which such Subsidiary was acquired by the Borrower or have executed a Subsidiary Guaranty. It is understood and agreed that Borrower shall not permit any of the Borrower in a transaction constituting a Permitted Acquisition permitted its Restricted Subsidiaries to create, incur, assume or otherwise become or remain liable with respect to, any Indebtedness or Accommodation Obligations, except for that incurred under Section 7.11(gsubparagraphs (a), together with any Permitted Refinancing thereof; provided that(c), (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition d), and (ye) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtabove.
Appears in 1 contract
Debt. NotNo Credit Party shall, and not suffer or nor shall it permit any Group Member of its Subsidiaries to, create, assume, incur, assume or suffer to exist exist, or in any Debtmanner become liable, except for directly, indirectly, or contingently in respect of, any Debt other than the following Debt of (collectively, the Borrower and/or Loan Party Subsidiaries:“Permitted Debt”):
(a) Obligations under this Agreement and the other Loan DocumentsObligations;
(b) intercompany Debt secured incurred in the ordinary course of business owed by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereofCredit Party to any other Credit Party; provided that the aggregate principal amount of all that, if applicable, such Debt at any time outstanding shall not exceed CDN$1,000,000as an investment is also permitted in Section 6.3;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the form of accounts payable to trade creditors for goods or services and current operating liabilities (other than for borrowed money) which in each case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less are not more than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period)90 days past due, in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds incurred in the ordinary course of business, provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrenceas presently conducted, unless contested in good faith and by appropriate proceedings;
(hd) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower purchase money indebtedness and Capital Leases in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding effect on the date on which Effective Date and set forth in Schedule 6.1 and (ii) such Subsidiary was acquired by other purchase money indebtedness or Capital Leases incurred after the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereofEffective Date; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does purchase money indebtedness and Capital Leases incurred after the Effective Date shall not exceed CDN$2,000,000 at any time; and$25,000,000.00;
(le) Permitted Seller DebtDebt for borrowed money incurred after the Effective Date; provided that (i) such Debt is unsecured or the aggregate outstanding principal amount Obligations hereunder are secured on a pari passu basis with such Debt on terms satisfactory to the Administrative Agent, (ii) the covenants under instruments or agreements governing the credit facility for such Debt (including, without limitation, indentures) are not more restrictive than such covenants set forth in this Agreement as reasonably determined by the Administrative Agent, (iii) the scheduled maturity of all such Permitted Seller Debt does not exceed CDN$2,000,000 is at any time least 90 days past the scheduled Maturity Date and (y) no Group Member amortization payments, mandatory prepayments, mandatory redemptions or mandatory repurchases of such Debt are required thereunder other than at the Borrower will be obligated scheduled maturity thereof (other than amortization payments, mandatory prepayments, mandatory redemptions or mandatory repurchases required in respect of Permitted Seller such Debt in connection with the occurrence of an event of default under such Debt, a change of control of the issuer (including a disposition of all or substantially all of the assets of the Borrower and its Subsidiaries, a liquidation or dissolution of the Borrower, or any event constituting a Change of Control (as defined herein) or an asset sale by the issuer or a Subsidiary thereof), (iv) the Borrower and its Subsidiaries are in pro forma compliance with the covenants set forth in this Agreement, both before and after giving effect to each incurrence of such Debt, and (v) the aggregate amount of such Debt shall not exceed 20% of the Borrower’s Tangible Net Worth when incurred;
(f) Debt in respect of Hedging Arrangements; and
(g) the letter of credit with Xxxxx Fargo Bank, National Association, issued to Southeastern Alabama Gas, in the amount of $3,000,000.
Appears in 1 contract
Debt. Not, and not suffer or permit Neither the Borrower nor any Group Member toSubsidiary will incur, create, incur, assume or suffer permit to exist any Debt, except for the following Debt of (with respect to the Borrower and/or Loan Party Subsidiaries:and any Active Subsidiary):
(a) the Notes or other Obligations under this Agreement and or any guaranty of or suretyship arrangement for the Notes or other Loan DocumentsObligations (provided, however, that nothing contained herein shall prohibit any Inactive Subsidiary from executing a guaranty of, or entering a suretyship arrangement for, the Notes or other Obligations);
(b) Debt secured by Liens permitted by Section 7.2(d)of the Borrower or a Subsidiary existing on the Closing Date which is reflected in the Financial Statements or is disclosed in Schedule 9.01, and any Permitted Refinancings renewals or extensions (but not increases) thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated accounts payable (for the deferred purchase price of Property or services), amounts owed to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf operators of the Lender on terms and conditions satisfactory Hydrocarbon Interests under applicable joint operating agreements or other extensions of credit from suppliers or contractors from time to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, time incurred in the case ordinary course of business which, if greater than 90 days past the Maximum Total Leverage Ratioinvoice or billing date, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth are being contested in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, good faith by appropriate proceedings if reserves adequate under GAAP shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Periodhave been established therefor;
(d) Purchase money Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of the Borrower or any Active Subsidiary and Debt under capital leases (as required to be reported on the financial statements of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to the Borrower or another Loan Party that is a Wholly-Owned any Active Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to GAAP) not to exceed $1,000,000.00 in the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agentaggregate;
(e) Debt described on Schedule 7.1 as associated with bonds or surety obligations required by Governmental Requirements in connection with the operation of the Closing DateOil and Gas Properties, and any Permitted Refinancing thereof;not to exceed $2,000,000 in the aggregate; and
(f) Contingent Obligations arising with respect Debt of the Borrower and its Active Subsidiaries under Hedging Agreements, but only if (i) it is not a speculative hedge; (ii) the provider of the Hedging Agreements is a Lender or an unsecured counterparty acceptable to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5the Agent;
(g) Debt arising from among the honoring Borrower and its Active Subsidiaries, or among the Active Subsidiaries, in the form of intercompany advances not evidenced by a bank notes or other financial institution of instruments if such Active Subsidiary is 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) Business Days of notice to Borrower or the relevant Subsidiary of its incurrenceGuarantor under this Agreement;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of businessAccrued FAS 143 asset retirement obligations;
(i) guaranties by Borrower of Revenue suspense accounts with respect to the Debt of Borrower's or any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1Active Subsidiary's Hydrocarbon Interests;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition not otherwise permitted under this Section 7.11(g)9.01, together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was which does not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the exceed at one time an aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt$2,000,000.00.
Appears in 1 contract
Debt. Not, and not suffer Incur or permit any Group Member to, create, incur, assume or suffer of its Subsidiaries to exist Incur any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesother than:
(ai) Obligations Debt under this Agreement the Loan Documents, the First Lien Loan Documents and the other Second Lien Loan Documents;
(bii) Capitalized Leases (other than Surviving Debt) not to exceed in the aggregate $7,500,000;
(iii) the Surviving Debt;
(iv) unsecured Debt of the Parent (“Permitted Parent Debt”) that (A) is not subject to any guarantee by any Subsidiary of the Parent, (B) will not mature prior to the date that is ninety-one (91) days after the Termination Date, (C) has no scheduled amortization or payments of principal, (D) does not permit any payments in cash of interest or other amounts in respect of the principal thereof for at least five (5) years from the date of the issuance or incurrence thereof, and (E) has mandatory prepayment, repurchase or redemption, covenant, default and remedy provisions customary for senior discount notes of an issuer that is the parent of a borrower under senior secured credit facilities, taken as a whole; provided, any such Debt shall constitute Permitted Parent Debt only if both before and after giving effect to the issuance or incurrence thereof, no Default or Event of Default shall have occurred and be continuing, it being understood that any capitalized or paid-in-kind interest or accreted principal on such Debt shall not constitute an issuance or incurrence of Debt for purposes of this proviso;
(v) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereofof the Borrower under Hedge Agreements; provided that such agreements (A) are designed solely to protect the aggregate principal amount Loan Parties against fluctuations in foreign currency exchange rates or interest rates and (B) do not increase the Debt of all such Debt the obligor thereunder outstanding at any time outstanding shall not exceed CDN$1,000,000other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder;
(vi) Debt Incurred in connection with the refinancing of any Debt permitted under Section 5.02(b)(i) or (ii) or clauses (c) or (d) of the definition of Assumed BTI Debt (other than the Debt under the Loan Documents, Permitted Refinancings, Replacement Refinancings or Receivables Refinancings), provided that the Debt Incurred in connection with such refinancing (A) has a scheduled maturity date that is on or after the scheduled maturity date of the Debt being refinanced, (B) has a weighted average life to maturity that is equal to or longer than the remaining weighted average life to maturity of the Debt being refinanced, determined immediately prior to giving effect to such refinancing, (C) does not include any provisions that may require mandatory prepayment of such Debt prior to its scheduled maturity, other than scheduled prepayments taken into consideration in determining compliance with clause (B) above and other provisions that are not materially more burdensome to the obligor thereunder than any such provisions included in the Debt being refinanced, (D) is Incurred by the same Person that Incurred the Debt being refinanced and is not Guaranteed or secured by any Lien unless the Debt being refinanced was Guaranteed or secured by a Lien (in which case such Debt shall not be Guaranteed by any Person that did not Guarantee the Debt being refinanced and shall not be secured by a Lien on any asset that did not secure the Debt being refinanced), (E) if the refinanced Debt was subordinated to the Debt under the Loan Documents, such Debt is subordinated to the Obligations Debt under the Loan Documents on terms no less favorable to the Lenders than the terms on which the Debt being refinanced was so subordinated, and (F) has an aggregate principal amount which is equal to the Debt being refinanced, provided that the Debt Incurred in connection with such refinancing may have an aggregate principal amount which is less than the Debt being refinanced in the case of a refinancing of less than all of the Debt referred to in clauses (c) and (d) of the definition of “Assumed BTI Debt” (each refinancing undertaken in accordance with this Section 5.02(b)(vi) shall be referred to herein as an “Existing Debt Refinancing”);
(vii) Permitted Refinancing; it being understood that the Loan Parties shall have the right to cause such Permitted Refinancing to be secured and guaranteed in a manner and on terms that are identical in all material respects to the manner in which and the terms on which the Debt under the First Lien Loan Documents (and/or the Second Lien Loan Documents, as applicable) is secured and guaranteed immediately prior to the consummation of such Permitted Refinancing. Effective as of the consummation of such Permitted Refinancing, the Permitted Refinancing lenders shall replace the lenders under the First Lien Loan Documents (and/or the Second Lien Loan Documents, as applicable) as parties to the Third Lien Intercreditor and Subordination Agreement, provided, that (A) there shall be no changes to the provisions of the Third Lien Intercreditor and Subordination Agreement that would adversely affect the rights and obligations thereunder of the Lenders and (B) the Permitted Refinancing documents shall not modify, or prohibit the Borrower from complying with, the provisions of their Agreement with respect to the final maturity date of this Facility.
(viii) Receivables Financing; it being understood that (A) the Loan Parties shall have the right to cause such Receivable Financing to be secured by all Receivables of all of the Loan Parties, (B) effective as of the consummation of such Receivables Financing, the Lenders shall release all Liens in their favor on all Receivables of all of the Loan Parties, it being understood that the Receivables Financing shall be secured by a Lien on all such Receivables that is senior in priority to all other Liens thereon (subject to Permitted Liens), and that the Lenders shall not be entitled to any Lien on the Receivables, (C) effective as of the consummation of such Receivables Financing, the Receivables Financing lenders, the Lenders and the Second Lien Lenders shall replace the Third Lien Intercreditor and Subordination Agreement with a mutually acceptable Intercreditor agreement pursuant to which such lenders, the Lenders and the Second Lien Lenders, among other things, acknowledge that the Liens on the Receivables securing the Receivables Financing shall be senior in priority to all other Liens thereon (subject to Permitted Liens) and that the Liens on all other collateral of the Loan Parties shall be senior in priority to all other Liens thereon (subject to Permitted Liens or as otherwise expressly permitted by the Loan Documents); provided, that the documents evidencing the Receivables Refinancing shall not modify, or prohibit the Borrower from complying with, the provisions of this Agreement with respect to the final maturity date of this Facility or otherwise adversely affect the rights and obligations of the Lenders under the Third Lien Intercreditor and Subordination Agreement;
(ix) Replacement Financing; it being understood that effective as of the consummation of such Replacement Financing, the Replacement Financing lenders, the Second Lien Lenders, if not paid in full, the Lenders shall replace the Third Lien Intercreditor and Subordination Agreement with mutually acceptable intercreditor agreements pursuant to which such lenders, the Lenders and the Second Lien Lenders, among other things, acknowledge that the Liens securing such Replacement Financing, the Second Lien Facility, and this Facility shall secure the Debt under such facilities and, if relevant, the Second Lien Facility, shall be senior to the obligations under the Loan Documents on substantially similar terms as set forth in the Third Lien Intercreditor Agreement and that such Liens shall be senior in priority to all other Liens, subject to Permitted Liens;
(x) Debt of the type described in clause (j) of the definition of “Debt” which is secured by a Permitted Lien, to the extent that such Debt is Incurred in the ordinary course of business and is not the subject of an enforcement, collection, execution, levy or foreclosure proceeding and is not duplicative of Debt Incurred pursuant to Section 5.02(b)(xii);
(xi) Subordinated Debt of the Loan Parties outstanding at any time in an aggregate principal amount not to exceed $30,000,000, on terms and conditions no less favorable to the First Lien Lenders and the Second Lien Lenders than under the Loan Documents, provided that (iA) the holder(s) maturity of such Subordinated Debt enter into a subordination agreement with Agent on behalf is at least 91 days following the final maturity date of the Lender on terms and conditions satisfactory to Second Lien Facility, (B) the Administrative Agent (as defined in the Second Lien Credit Agreement) and the Lender prior to Required Lenders under the incurrence thereof, (ii) Second Lien Credit Agreement are reasonably satisfied that the Borrower Parent and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to compliance with the incurrence provisions of the Second Lien Loan Documents for the period from the Incurrence of such Subordinated Debt and through the application final maturity date of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013)First Lien Facility, and (iiiC) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to Required Lenders under the incurrence of such Debt and Second Lien Credit Agreement have approved the application terms of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for subordination relating to such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any timeSubordinated Debt; and
(lxii) Permitted Seller Debt; provided that (i) the Debt in respect of Ordinary Course Obligations in an aggregate outstanding principal amount of all such Permitted Seller Debt does not to exceed CDN$2,000,000 $8,000,000 at any time outstanding. Notwithstanding any other provision under this Section 5.02(b), (A) the maximum amount of Debt that the Parent or a Subsidiary may Incur pursuant to this Section 5.02(b) shall not be deemed to be exceeded with respect to any outstanding Debt, solely as a result of fluctuations in the exchange rates of currencies and (yB) no Group Member any Loan Party may Incur Debt owed to any other than the Borrower will be obligated in respect of Permitted Seller DebtLoan Party.
Appears in 1 contract
Samples: Credit Agreement (Itc Deltacom Inc)
Debt. Not, and The US Borrower will not suffer or permit any Group Member toincur, create, assume, or permit to exist, and will not permit any Subsidiary to incur, assume create, assume, or suffer permit to exist exist, any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations under this Agreement Debt and Contingent Liabilities pursuant to the other Loan Documents;
(b) Extensions, renewals, refundings, amendments or replacements of Debt secured by Liens permitted by Section 7.2(d)clause (a) above or clause (c) below provided that no such extension, renewal, refunding or replacement shall (i) if such Debt is Subordinated Debt, amend or modify any subordination provisions, if any, contained in the original Debt so that the Debt, as extended, renewed or replaced, is no longer Subordinated Debt, (ii) shorten the fixed maturity the Debt being refinanced, (iii) increase the principal amount of the Debt being refinanced by an amount greater than the lesser of (A) reasonable fees and expenses incurred in connection with such refinancing and (B) an amount equal to five percent (5.00%) of the principal amount of the Debt being refinanced, or (iv) increase the rate of interest to a rate greater than the current market rate at the time of the extension, renewal, refunding, or replacement of the original Debt;
(c) Senior unsecured Debt and Subordinated Debt so long as (i) the US Borrower has delivered a Compliance Certificate concurrently with the issuance thereof demonstrating pro forma compliance with Sections 11.1, 11.2 and 11.3 of this Agreement, (ii) the covenants and financial ratios under instruments or agreements governing such Debt are not more restrictive than such covenants under this Agreement as reasonably determined by the US Administrative Agent, (iii) the scheduled maturity of such Debt is at least 30 days past the scheduled Termination Date and no amortization payments, mandatory prepayments, or repurchases of such Debt are required thereunder other than at the scheduled maturity thereof, and any Permitted Refinancings thereof; (iv) the US Borrower and its Subsidiaries are in compliance with the covenants set forth in this Agreement, both before and after giving effect to each incurrence of such Debt;
(d) The following secured Debt: provided that that, the aggregate principal amount of all such Debt shall not exceed 10% of the US Borrower’s consolidated Net Worth at any time outstanding shall not exceed CDN$1,000,000;and neither the US Borrower nor any Subsidiary may enter into additional Debt of the type described in this clause (d) if a Default or Event of Default is continuing or entering into the additional Debt could reasonably be expected to cause or result in a Default or Event of Default:
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such purchase money Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, or Capital Leases; and
(ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Existing Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending Contingent Liabilities described on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to AgentSchedule 10.1 hereto;
(e) Debt described on Schedule 7.1 as of the Closing DateUS Borrower to a Guarantor that is a Domestic Subsidiary other than a de minimus Subsidiary or of a Guarantor to the US Borrower, and any Permitted Refinancing thereofso long as such Debt is evidenced by an Intercompany Note;
(f) Contingent Obligations arising with respect Debt of the US Borrower to customary indemnification obligations a Subsidiary which is not a Domestic Subsidiary and a Guarantor or of a Subsidiary to another Subsidiary which is not a Domestic Subsidiary and a Guarantor so long as such Debt is evidenced by an Intercompany Note and does not exceed $2,000,000, in favor of purchasers in connection with dispositions permitted under Section 7.5the aggregate outstanding at any time;
(g) Debt arising from Obligations of 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 such Debt is extinguished within two (2) Business Days of notice to US Borrower or the relevant any Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums under real estate leases entered into in the ordinary course of business;
(ih) guaranties Contingent Obligations under any guaranty by the US Borrower of the Debt of or any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by obligations as lessee under any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt lease which is otherwise permitted under this Section 7.1Agreement;
(i) Debt constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $2,000,000 in the aggregate at any time outstanding;
(j) Debt Indemnities arising from under agreements of entered into by the US Borrower or any Loan Obligated Party Subsidiary in the ordinary course of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;; and
(k) Debt arising on account of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower deferred Taxes, deferred workers compensation liabilities or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtdeferred employee medical liabilities.
Appears in 1 contract
Debt. Not, The Borrower will not and will not suffer cause or permit any Group Member toGuarantor or any Restricted Subsidiary to incur, create, incur, assume or suffer permit to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations under this Agreement and the other Loan DocumentsDebt hereunder or any guaranty of or suretyship arrangement for the Debt hereunder;
(b) Debt secured by Liens permitted by Section 7.2(d)of the Borrower and the Restricted Subsidiaries existing on the date hereof that is reflected in the Financial Statements or is disclosed in Schedule 9.01, and any Permitted Refinancings renewals or extensions (but not increases) thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated accounts payable (for the deferred purchase price of Property or services) from time to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, time incurred in the case ordinary course of business which, if material and greater than 90 days past the Maximum Total Leverage Ratioinvoice or billing date, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth are being contested in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, good faith by appropriate proceedings if reserves adequate under GAAP shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Periodhave been established therefor;
(d) Debt of the Borrower and the Restricted Subsidiaries requiring no scheduled principal payments (whether at stated maturity or by virtue of scheduled amortization, required prepayment or redemption) due until at least one year after the Termination Date and issued under the Indenture or otherwise under agreements containing covenants no more restrictive to any Loan Party that is a Wholly-Owned Subsidiary of the Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note the Restricted Subsidiaries, as the case may be, than the covenants contained in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agentthis Agreement;
(e) Debt described on Schedule 7.1 as that is secured by Liens permitted under Section 9.02(d) and under clause (xv) of the Closing Date, and definition of Excepted Liens which in the aggregate shall not to exceed $25,000,000 outstanding at any Permitted Refinancing thereofone time;
(f) Contingent Obligations arising with respect Debt of the Borrower and the Restricted Subsidiaries under Hedging Agreements entered into as a part of its normal business operations as a risk management strategy and/or hedge against changes resulting from market conditions related to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5the Borrower’s operations;
(g) Debt arising from as a result of (and to 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 such Debt is extinguished within two (2extent permitted by) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;Sections 9.03(g); and
(h) Other unsecured Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of and the Debt of Borrower in each case Restricted Subsidiaries so long as at the time such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements incurred, and after giving pro forma effect to the incurrence and applications of the Borrower or any Loan Party Subsidiary of proceeds thereof, the Borrower providing for indemnification, adjustment shall be in pro forma compliance with the financial covenants contained in Section 9.12 and no Default or Event of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued Default shall have occurred and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtcontinuing.
Appears in 1 contract
Debt. Not, and The Borrower will not suffer or permit any Group Member to, create, incur, assume or suffer to exist exist, or permit any DebtSubsidiary to create, except for incur, assume or suffer to exist, any Debt other than the following Debt of the Borrower and/or Loan Party Subsidiariesfollowing:
(a) Obligations Debt under this Agreement and the other Loan Credit Documents;
(b) Debt secured by Liens permitted by Section 7.2(d)existing on the date of this Agreement and described in Schedule 6.02, including renewals and any Permitted Refinancings thereof; provided that refinancings of such Debt, so long as the aggregate principal amount of all such Debt at thereof is not increased (other than to pay any time outstanding shall not exceed CDN$1,000,000associated premiums, fees and expenses);
(c) Debt which is subordinated under one or more Interest Rate Contract or Hydrocarbon Hedge Agreement (provided that the parties to this Agreement hereby agree that the obligations of the Borrower to the Obligations under this Banks in respect of any Interest Rate Contract or Hydrocarbon Hedge Agreement and are secured by the other Loan Security Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereofbut only, with the financial covenants set forth in Section 7.13 (butrespect to each such Bank, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio if and so long as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Periodsuch Bank remains a Bank), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt in respect of Borrower to any Loan Party that is a Wholly-Owned Subsidiary endorsement of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums negotiable instruments in the ordinary course of business;
(e) Debt between the Borrower and any Subsidiary or between Subsidiaries, provided that (i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is noted on the books and records of the Borrower and its Subsidiaries and (ii) in the case of any Debt owed by the Borrower to any Subsidiary that is not a Guarantor, such Debt is subordinated to the Obligations of the Borrower under the Credit Documents on terms and conditions, and pursuant to documentation, in form and substance satisfactory to the Administrative Agent in its sole reasonable discretion;
(f) Debt in respect of Capital Leases not exceeding $30,000,000 in aggregate amount equivalent to principal at any time outstanding;
(g) Debt secured by Liens permitted by Section 6.01(d), not exceeding $30,000,000 in aggregate principal amount at any time outstanding;
(h) if any lease pursuant to the Eunice Lease Documents is treated under this Section 7.1GAAP as a Capital Lease, then, xxx such Debt which may be attributable to the Eunice Lease Documents;
(i) unsecured Debt in addition tx Xxxx otherwise permitted herein, not exceeding $30,000,000 in aggregate principal amount at any time outstanding;
(j) Debt arising from agreements under the Note Agreement in an aggregate principal amount not to exceed $200,000,000; and
(k) unsecured Funded Debt of the Borrower and/or a Finance Entity and/or any unsecured guaranty by the Borrower or any Guarantor of such Funded Debt of the Borrower or any Loan Party Subsidiary Affiliate of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller DebtBorrower; provided that (i) the aggregate Borrower is in compliance with Section 6.14 immediately after giving effect to the incurrence of any such Funded Debt or guaranty determined based upon the outstanding principal amount of all Funded Debt of the Borrower and its Subsidiaries on a Consolidated basis immediately after giving effect to such Permitted Seller incurrence, EBITDA for the four fiscal quarters most recently ended on or before the date of such incurrence and the maximum Leverage Ratio allowed as of the end of the fiscal quarter most recently ended on or prior to the date of such incurrence (and in the case of any guaranty of Funded Debt of the Borrower or any other Affiliate of the Borrower, the aggregate amount of such Funded Debt so guaranteed shall be "Funded Debt" of the Borrower for purposes of calculating the Leverage Ratio), (ii) such Funded Debt does not exceed CDN$2,000,000 at impose any time financial or other "maintenance" covenants on the Borrower or any of the Subsidiaries that are more onerous than the covenants set forth in this Agreement, (iii) such Funded Debt shall not require any scheduled payment on account of principal (whether by redemption, purchase, retirement, defeasance, set-off or otherwise) prior to the Termination Date and (yiv) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtsuch Funded Debt shall contain terms and conditions that are customary for such transactions.
Appears in 1 contract
Debt. NotThe Borrower will not, and not suffer or nor will it permit any Group Member other Credit Party to, incur, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) the Notes or other Obligations arising under this Agreement and the other Loan Documents, or Cash Management Agreements or the Secured Swap Agreements;
(b) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereofunder Capital Leases or that constitutes Purchase Money Indebtedness; provided that the aggregate principal amount of all such Debt described in this Section 9.02(b) at any one time outstanding shall not exceed CDN$1,000,000$50,000,000;
(c) intercompany Debt which 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 under on terms set forth in the Guarantee Agreement;
(d) Debt constituting a Guarantee by a Credit Party of the Obligations;
(e) other unsecured Debt not to exceed in the aggregate at any one time outstanding, the greater of (i) $75,000,000 and (ii) 2.0% of Total Assets;
(i) Debt in respect of unsecured notes existing on the Effective Date and listed on Schedule 9.02(f) and (ii) other Debt in respect of unsecured notes; provided that, with respect to Debt incurred after the Effective Date, (A) no Default or Borrowing Base Deficiency exists at the time of the incurrence of such Debt or would result therefrom (including after giving effect to any automatic reduction of the Borrowing Base pursuant to Section 2.06(e)), (B) after giving pro forma effect to the incurrence of such Debt, (x) the Leverage Ratio does not exceed 3.5 to 1.0 and (y) the Current Ratio is not less than 1.0 to 1.0, (C) such Debt does not require any scheduled amortization of principal or have a maturity date prior to 180 days after the Revolving Credit Maturity Date at the time of the incurrence of such Debt, (D) the covenants and events of default contained in the documentation governing such Debt are (1) in the case of financial covenants, not more restrictive than the financial covenants of this Agreement and the other Loan Documents, provided that Documents and (i2) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratioother covenants and events of default, determining the maximum permissible Maximum Total Leverage Ratio taken as 0.25 less a whole, not more restrictive than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for corresponding terms of this Agreement and the applicable Computation Period), other Loan Documents in each case for as reasonably determined in good faith by the most recently ended Computation Period for which financial statements are available Borrower, (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iiiE) the Fixed Charges Coverage Ratio, on documents governing such Debt do not contain any mandatory prepayment or Redemption provisions (other than customary change of control or asset sale tender offer provisions) which would require a Pro Forma Basis giving effect to the incurrence mandatory prepayment or Redemption of such Debt in priority to the Loans and the application (F) such Debt does not prohibit prior repayment of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt arising from the honoring by which constitutes a bank Permitted Refinancing of Debt outstanding 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) Business Days of notice to Borrower or the relevant Subsidiary of its incurrenceincurred under Section 9.02(f);
(h) Debt incurred or deposits made by the Credit Parties (i) under worker’s compensation laws, unemployment insurance laws or similar 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 financing operation of insurance premiums the Hydrocarbon Interests in the ordinary course of business;; and
(i) guaranties by Borrower of the Debt of any Loan Credit Party that is a Wholly-Owned Subsidiary of Borrower or guaranties assumed in connection with any acquisition permitted by any Subsidiary thereof of the Debt of Borrower in each case Section 9.05 so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements not incurred in contemplation of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnificationsuch acquisition, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided thatthat after giving pro forma effect to such acquisition and the assumption of such Debt, (i) such Debt (x) was the Leverage Ratio does not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition exceed 3.5 to 1.0 and (ii) the aggregate outstanding principal amount of all such Debt does Current Ratio is not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other less than the Borrower will be obligated in respect of Permitted Seller Debt1.0 to 1.0.
Appears in 1 contract
Samples: Credit Agreement (PDC Energy, Inc.)
Debt. NotContract, and not create, incur, assume or suffer to exist any Debt, or permit any Group Member toof its Restricted Subsidiaries to contract, create, incur, assume or suffer to exist any Debt, except for the following (i) Debt of the Borrower and/or Loan Party Subsidiaries:
(a) Obligations under this Agreement and the other Loan Documents;; (ii) (A) Surviving Debt described in Schedule 4.01(t), Debt and leases (including any operating leases recharacterized as capital leases) outstanding on the Amendment No. 2 Effective Date that are in each case permitted under this Agreement as in effect immediately prior to the Amendment No. 2 Effective Date (such Debt and leases, together with such Surviving Debt described in Schedule 4.01(t), the “Amendment No. 2 Effective Date Debt”), Debt under the Revolving Facility not to exceed $400,000,000 at
(bA) Debt secured by Liens permitted by Section 7.2(d)in respect of Hedge Agreements entered into in the ordinary course of business to protect against fluctuations in interest rates, foreign exchange rates and any Permitted Refinancings thereofcommodity prices and (B) Debt outstanding under Cash Management Agreements; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(cix) Debt which is subordinated may be deemed to the Obligations under this Agreement and the other Loan Documentsexist pursuant to any surety bonds, provided that (i) the holder(s) appeal bonds or similar obligations or guarantees or letters of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period)credit, in each case incurred in connection with any judgment not constituting an Event of Default or arising from agreements providing for indemnification, adjustment of purchase price, earn-outs or similar obligations, surety, performance, bid or appeal bonds and other similar types of performance and completion guarantees securing any obligations of the Borrower or any Subsidiary pursuant to such agreements, in any case incurred or assumed in connection with the disposition or acquisition of any business, assets or Equity Interests held by a Subsidiary (other than guarantees of Debt incurred by any Person acquiring all or any portion of such business, assets or Equity Interests held by a Subsidiary for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability purpose of the financial covenants therein to Computation Periods ending on or after March 31, 2013financing such acquisition), so long as the amount does not exceed the gross proceeds actually received by the Borrower or any Subsidiary in connection with such disposition; (x) Debt of Restricted Subsidiaries that are Foreign Subsidiaries (but excluding Restricted Subsidiaries, if any, that are obligors with respect to any foreign asset based facilities under the Revolving Facility) arising under any Foreign Asset Based Financing, in an aggregate principal amount for all such Foreign Asset Based Financings not to exceed $200,000,000 (or the foreign currency equivalent) at any time outstanding; (xi) Debt not otherwise permitted hereunder in an aggregate principal amount not to exceed the greater of $175,000,000 and 7.0% of Consolidated Net Tangible Assets (iii) as measured at the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the time of incurrence of such Debt); (xii) Permitted Ratio Debt of Loan Parties; (xiii) Permitted Acquired Debt and the application Permitted Refinancing Debt refunding, replacing or refinancing, in whole or in part, such Permitted Acquired Debt; (xiv) Debt incurred on behalf of Joint Ventures of the proceeds thereofCompany or any Subsidiary not to exceed, for at any one time outstanding, together with any Guarantee Obligations incurred in reliance on Section 5.02(c)(vii), the most recently ended Computation Period for which financial statements are available, shall be not less than greater of $100,000,000 and 4.0% of Consolidated Net Tangible Assets (as measured at the Fixed Charges Coverage Ratio Requirement for time of incurrence of such Computation Period;
Debt); (dxv) [intentionally omitted]; (xvi) an aggregate of up to the greater of (x) $100,000,000 and (y) 4.0% of Consolidated Net Tangible Assets (as measured at the time of incurrence of such Debt) of (A) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the constituting obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor letters of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt arising from the honoring by a bank credit issued, or other financial institution of a checksurety bonds incurred, draft or similar instrument drawn against insufficient funds in the ordinary course of business, including letters of credit in respect of workers’ compensation claims, or other Debt with respect to reimbursement obligations regarding workers’ compensation claims, health, disability or other benefits to employees or former employees or their families or property, casualty or liability insurance or self-insurance or similar requirements, and letters of credit in connection with the maintenance of, or pursuant to the requirements of, environmental or other permits or licenses from governmental authorities, or other Debt with respect to reimbursement-type obligations regarding workers’ compensation claims; provided that that, upon the drawing of such Debt is extinguished letters of credit or the incurrence of such Debt, such obligations are reimbursed within two (2) 30 Business Days following such drawing or incurrence and (B) Debt under Secured Specified Credit Agreements; (xvii) Debt arising in connection with endorsement of notice instruments for deposit in the ordinary course of business; (xviii) Debt consisting of take-or-pay obligations contained in supply agreements relating to products, services or commodities of a type that the Borrower or the relevant Subsidiary any of its incurrence;
Restricted Subsidiaries uses or sells in the ordinary course of business; (hxix) Debt consisting of the financing of insurance premiums; (xx) Debt consisting of guarantees incurred in the ordinary course of business under repurchase agreements or similar agreements in connection with the financing of insurance premiums sales of goods in the ordinary course of business;
; (ixxi) guaranties by Borrower customer deposits and advance payments received in the ordinary course of business from customers for goods purchased in the Debt ordinary course of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
business; (jxxii) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Restricted Subsidiary of the Borrower Company to future, current or former employees, directors and consultants thereof, or their respective estates, spouses or former spouses, in a transaction constituting a Permitted Acquisition permitted under each case to finance the purchase or redemption of Equity Interests of the Company to the extent described in Section 7.11(g5.02(e)(iii), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (yxxiii) is not secured other Debt, to the extent the Obligations thereunder are supported by any Lien created a letter of credit issued under the Revolving Facility in connection with or in anticipation of such Permitted Acquisition or reliance on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller DebtSection 5.02(b)(ii)(A).
Appears in 1 contract
Samples: Senior Secured Term Facility Credit Agreement (Chemtura CORP)
Debt. Not, and not suffer or permit any Group Member other Loan Party to, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations Debt under this Agreement and the other Loan Documents;
(b) Debt secured by Liens (i) outstanding on the date hereof and listed on Schedule 11.1 and (ii) under the Existing Bank Credit Agreement and, in each case, any refinancing, refundings, renewals or extensions thereof permitted by Section 7.2(d), under the Waiver and any Permitted Refinancings thereofOmnibus Amendment Agreement; provided that the aggregate principal amount of all such Debt is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any time outstanding shall not exceed CDN$1,000,000existing commitments unutilized thereunder;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf Guarantees of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be Company or any Guarantor in compliance, on a Pro Forma Basis giving effect to the incurrence respect of such Debt and the application otherwise permitted hereunder of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on Company or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Periodany other Guarantor;
(d) Debt Hedging Obligations incurred in favor of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower Lender or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form an Affiliate thereof for bona fide hedging purposes and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security not for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agentspeculation;
(e) Debt described on Schedule 7.1 as in respect of Capital Leases and purchase money obligations for fixed or capital assets within the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations limitations set forth in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs11.2(j), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does at any one time outstanding shall not exceed CDN$2,000,000 $10,000,000 and (ii) at the time of incurrence of such Debt, no Event of Default or Unmatured Event of Default exists or would result therefrom;
(f) Debt under the Senior Notes;
(g) unsecured Debt;
(h) Debt secured by Liens permitted under Section 11.2(k);
(i) Debt arising in connection with the Sale-Leaseback Transaction; and
(j) other Debt of the Company and its Subsidiaries in an aggregate principal amount not to exceed $10,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtoutstanding.
Appears in 1 contract
Samples: Credit Agreement (Proquest Co)
Debt. NotCreate, and not suffer or permit any Group Member to, createissue, incur, assume assume, become liable in respect of or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiarieswhether now owned or hereafter acquired, except:
(a) Obligations under this Agreement and the other Loan DocumentsAdditional Parity Debt incurred in compliance with Section 6.3;
(b) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereofDebt; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;and
(c) Debt which is subordinated to of the Obligations under this Agreement Borrower, Holdings or any Subsidiary Guarantor (other than Pagbilao, Sual and MSIC) satisfying the other Loan Documents, provided that following conditions:
(i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving pro forma effect to such incurrence, the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Consolidated Leverage Ratio as 0.25 less than at the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for last day of the applicable Computation Period), in each case for the most recently ended Computation Period period of four consecutive fiscal quarters of Holdings for which financial statements are available (and disregarding ended immediately prior to the qualifications in Section 7.13 date such Debt is incurred is less than 3.75:1.00; provided that limit if at any time during such period, the applicability of Term Loan has not been made or the financial covenants therein to Computation Periods ending on or after March 31Holdings Restructurings have not been completed, 2013), and (iii) the Fixed Charges Coverage Ratio, ratio described above for such period shall be determined on a Pro Forma Basis pro forma basis after giving effect to the incurrence Term Loan and the Holdings Restructurings (to the extent completed), as if the Term Loan had been fully drawn and the Holdings Restructurings (to the extent completed) had occurred at the beginning of such Debt and period;
(ii) after giving pro forma effect to such incurrence, the application Consolidated Interest Coverage Ratio is at least 3.0:1.0 for (x) the period of the proceeds thereof, for the most recently ended Computation Period four consecutive fiscal quarters of Holdings for which financial statements are available, shall be not less than available ended immediately prior to the Fixed Charges Coverage Ratio Requirement for date such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrowerincurred; provided that all if at any time during such Debt period, the Term Loan has not been made or the Holdings Restructurings have not been completed, the ratio described above for such period shall be evidenced by determined on a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant pro forma basis after giving effect to the applicable Collateral Document as additional collateral security for the Obligations, Term Loan and the obligations under such demand note shall be subordinated Holdings Restructurings (to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outsextent completed), in each case entered into in connection with Permitted Acquisitions or as if the disposition of any business, assets or Stock permitted by this Agreement;
Term Loan had been fully drawn and the Holdings Restructurings (kto the extent completed) Debt of a Loan Party Subsidiary of had occurred at the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation beginning of such Permitted Acquisition period; and (y) is not secured the next succeeding four consecutive fiscal quarters of Holdings (determined based upon projections prepared in good faith on the basis of assumptions which Holdings believes to be reasonable at the time made and certified by any Lien created in connection with or in anticipation a Responsible Officer of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any timeHoldings); and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (yiii) no Group Member other than the Borrower will Default or Event of Default shall occur and be obligated in respect of Permitted Seller Debtcontinuing or would result therefrom.
Appears in 1 contract
Samples: Credit Agreement (Mirant Corp)
Debt. NotBorrower will not, and not suffer or nor will Borrower permit any Group Member other Credit Party to, create, incur, assume become or suffer to exist remain liable for any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiaries:
other than (a) Obligations under this Agreement and the other Loan Documents;
Obligations, (b) Debt secured by Liens permitted by of any Credit Party to any other Credit Party, (c) Permitted Purchase Money Debt, (d) subject to any adjustment to the Borrowing Base required under Section 7.2(d)2.15, Senior Notes and any guarantees thereof and any Permitted Refinancings thereof; Refinancing Debt, provided that the aggregate principal amount of all that, solely with respect to Senior Notes not constituting Permitted Refinancing Debt, (i) such Debt at Senior Notes do not have any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated scheduled amortization prior to the Obligations under stated maturity of such Senior Notes, (ii) such Senior Notes do not mature sooner than a date that is at least one-hundred and eighty (180) days following the TerminationLatest Maturity Date in effect on the date of issuance of such Senior Notes, (iii) such Senior Notes and any guarantees thereof are on market terms for similar instruments of issuers of similar size and credit quality given the then prevailing market conditions, (iv) as determined in good faith by the senior management of Borrower, such Senior Notes and any guarantees thereof are on terms, taken as a whole, no more restrictive or burdensome than this Agreement and the other Loan DocumentsAgreement, provided that (iA) the holder(sfinancial maintenance covenants with respect to such Senior Notes are not more restrictive than those in this Agreement and (B) the representations and warranties, covenants (other than financial maintenance covenants) and events of default of such Debt enter into Senior Notes are not, taken as a subordination agreement with Agent on behalf whole, more restrictive or burdensome than those in this Agreement, and (v) such Senior Notes do not have any mandatory prepayment or redemption provisions (other than customary change of the Lender on terms and conditions satisfactory to Agent and the Lender prior control or asset sale tender offer provisions) which would require a mandatory prepayment or redemption in priority to the incurrence thereofObligations, (iie) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect subject to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants conditions set forth in Section 7.13 (butthe Renewable Product Purchase Documents, in Debt constituting the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt obligation of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in make each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereofMonthly Settlement Payment; provided that, (i) such Debt upon achieving the “Commercial Operation Date” (x) was not incurred as defined in connection with or in anticipation the Renewable Product Purchase Agreement), Administrative Agent shall have received from Borrower written notice of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition the occurrence thereof and (ii) within five (5) Business Days of payment of any such Monthly Settlement Payment by Borrower in excess of $100,000, Administrative Agent shall have received from Borrower written notice as to the aggregate outstanding principal amount of all such Monthly Settlement Payment and such additional details as reasonably requested by Administrative Agent, (f) subject to the conditions set forth in the Renewable Product Purchase Documents, Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debtconstituting the obligation to provide the Performance Security; provided that (i) that, promptly after providing such Performance Security, Administrative Agent shall have received from Borrower written notice as to the aggregate outstanding principal amount of all such Permitted Seller Performance Security, the circumstances under which such Performance Security was provided and such additional details as reasonably requested by Administrative Agent, and (g) other Debt does in an amount not to exceed CDN$2,000,000 at any time and $20,000,000 in the aggregate. Solely for purposes of clause (yd) of this Section 9.1, any Permitted Senior Debt for the payment of which the proceeds of other Senior Notes or Permitted Refinancing Debt has been deposited in trust or otherwise set aside shall be deemed no Group Member longer “outstanding” so long as such Permitted Senior Debt is repaid within sixty (60) days after the Credit Parties’ receipt of proceeds of such other than the Borrower will be obligated in respect of Senior Notes or Permitted Seller Refinancing Debt.
Appears in 1 contract
Debt. NotCreate or suffer to exist, and not suffer or permit any Group Member to, create, incur, assume of its Subsidiaries to ---- create or suffer to exist exist, any Debt, except for including Debt secured by the following Debt cash surrender value of any life insurance policy owned by the Borrower and/or Loan Party SubsidiariesBorrower, whether or not such debt is recognized on the Borrower's financial statements as prepared in accordance with generally accepted accounting principles; other than:
(ai) Obligations under this Agreement and the other Loan DocumentsDebt described on Exhibit D hereto;
(b) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and Loan contemplated hereby;
(iii) purchase money obligations which are secured by security interests in the Fixed Charges Coverage Ratioequipment or fixtures so acquired, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, capital leases entered into for the most recently ended Computation Period for which financial statements are availableuse and acquisition of equipment, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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, and guarantees of any such Debt; provided that such Debt is extinguished within two (2) Business Days security interests shall not extend to other assets of notice to the Borrower or the relevant Subsidiary of its incurrenceSubsidiaries;
(hiv) Debt trade debt incurred in connection with the financing of insurance premiums in the ordinary course of businessbusiness and on normal and customary trade terms;
(iv) guaranties by Borrower Debt arising out of the Debt issuance of any Loan Party that is a Wholly-Owned Subsidiary letters of credit issued by Bank or with the consent of Bank, in support of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1its Subsidiaries;
(jvi) Debt arising from agreements notes payable for a term not in excess of five (5) years, issued in connection with the purchase of shares of stock of the Borrower owned by shareholders or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions the payment of benefits due to Persons who leave the employment of the Borrower; provided however, that the issuance of such notes by the Borrower shall not otherwise create an Event of Default hereunder or an event which, with the passage of time or the disposition giving of any businessnotice, assets or Stock permitted by this Agreementwould constitute an Event of Default hereunder;
(kvii) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired incurred by the Borrower to its Subsidiaries or a Subsidiary of incurred by Subsidiaries to the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any timeBorrower; and
(lviii) Permitted Seller Debt; provided Debt secured by the cash surrender value of life insurance policies owned by the Borrower, whether or not such debt is recognized on the Borrower's financial statements, providing that (i) the aggregate outstanding principal amount proceeds of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than are either used solely for the Borrower will be obligated purpose of making scheduled premium payments currently due on such policies or making investments in respect of Permitted Seller Debtliquid marketable securities.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Korn Ferry International)
Debt. NotNo Restricted Company shall, and not suffer directly or permit any Group Member toindirectly, create, incur, assume or suffer to exist any direct, indirect, fixed, or contingent liability for any Debt, except for the following Debt of the Borrower and/or Loan Party SubsidiariesOTHER THAN:
(a) Obligations under this Agreement and the other Loan DocumentsThe Obligation;
(b) Existing Debt;
(c) Debt secured incurred by Liens any Restricted Company under the 364-Day Facility;
(d) Debt arising under the Existing Agreement;
(e) Debt incurred by any Restricted Company under any Financial Hedge with any Lender or an Affiliate of any Lender;
(f) Debt between Restricted Companies, SO LONG AS any such inter-company Debt owed by Borrower to any other Restricted Company is unsecured; or Debt of any Restricted Company to the Receivables Subsidiary; and
(g) Debt of any Restricted Company not otherwise permitted by Section 7.2(dthis SECTION 7.12, SO LONG AS (i) no Default or Potential Default exists on the date any such Debt is created, incurred, or assumed or arises after giving effect to such Debt incurrence; and (ii) if such Debt is secured, on the date any such secured Debt is created, incurred, or assumed, the principal amount of such secured Debt, when aggregated with the principal amount of all other secured Debt of the Restricted Companies incurred in accordance with this SECTION 7.12(g), does not exceed 10% of the book value of the consolidated assets of the Restricted Companies determined as of the date of, and any Permitted Refinancings thereof; provided that with respect to, the Current Financials and the related Compliance Certificate. Notwithstanding anything in this SECTION 7.12 to the contrary, the aggregate principal amount of all such Debt at of the Restricted Subsidiaries may not exceed, on any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to date of determination, the Obligations under this Agreement and the other Loan Documents, provided that SUM of (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf 10% of the Lender on terms book value of the consolidated assets of the Restricted Companies, determined as of the date of, and conditions satisfactory to Agent with respect to, the Current Financials and the Lender prior to the incurrence thereofrelated Compliance Certificate, PLUS (ii) on and after the Borrower effective date of any designation of Intermedia and its Subsidiaries shall be in complianceas "RESTRICTED SUBSIDIARIES" hereunder, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Existing Debt does of Intermedia and its Subsidiaries existing on the Intermedia Merger Date (as renewed, refinanced, or extended, but not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtincreased).
Appears in 1 contract
Debt. NotThe Parent and the Borrower will not, and will not suffer or permit any Group Member of the other Restricted Subsidiaries to, incur, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations the Loans or other Indebtedness arising under this Agreement and the Loan Documents or any guaranty of or suretyship arrangement for the Loans or other Indebtedness arising under the Loan Documents;.
(b) Debt secured by Liens permitted by Section 7.2(d), of the Parent and any Permitted Refinancings thereof; provided its Restricted Subsidiaries existing on the date hereof that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;is reflected on Schedule 9.02.
(c) Debt which under Capital Leases or that constitutes Purchase Money Debt; provided that the Debt permitted by this clause (c) shall not exceed, at the time any such Debt is incurred (and after giving effect to such incurrence), an aggregate principal amount equal to the greater of (i) $10,000,000 and (ii) 2.5% of the Borrowing Base in effect at such time.
(d) intercompany Debt between the Parent and any Restricted Subsidiary or between Restricted Subsidiaries, provided that such Debt is subordinated to the Obligations Indebtedness as and to the extent provided in the Guaranty Agreement.
(e) Debt constituting a guaranty by the Parent or by a Restricted Subsidiary of other Debt permitted to be incurred under this Agreement Section 9.02.
(f) Debt under the Permitted Senior Unsecured Notes and the other Loan Documents, guarantees thereof by any Credit Party; provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of such Debt and issuance thereof, the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case and any automatic reduction of the Maximum Total Leverage Ratio, determining Borrowing Base pursuant to Section 2.07(e) on account thereof: (A) the maximum permissible Maximum Total Leverage Ratio Parent shall be in pro forma compliance with Section 9.01 as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for of the most recently ended Computation Period fiscal quarter for which financial statements have been or are available (and disregarding the qualifications in required to be delivered pursuant to Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on 8.01(a) or after March 31, 2013), Section 8.01(b) and (iiiB) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence no Event of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, Default or Borrowing Base Deficiency shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;exist.
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Restricted Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions Investments in or the disposition Transfers of any business, assets or Stock permitted by this Agreement;hereunder.
(kh) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a any Restricted Subsidiary consisting of obligations to pay insurance premiums incurred in the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, ordinary course of business.
(i) other unsecured Funded Debt; provided that the Funded Debt permitted by this clause (i) shall not exceed, at the time any such Funded Debt is incurred (xand after giving effect to such incurrence), an aggregate principal amount equal to the greater of (i) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition $10,000,000 and (ii) 2.5% of the aggregate outstanding principal amount of all Borrowing Base in effect at such Debt does not exceed CDN$2,000,000 at any time; and.
(lj) Permitted Seller Junior Lien Debt; provided that (i) the amount of Permitted Junior Lien Debt that is secured by second priority Liens permitted by this clause (j) shall not exceed an aggregate outstanding principal amount of all equal to $350,000,000, (ii) such Permitted Seller Junior Lien Debt does not exceed CDN$2,000,000 at any time shall be incurred on or before the effectiveness of the Scheduled Redetermination scheduled to occur on or about October 1, 2020, and (yiii) no Group Member such Permitted Junior Lien Debt (other than the Borrower will be obligated Permitted Refinancing Debt in respect of any such Permitted Seller Junior Lien Debt) shall be issued solely in exchange for, or the net proceeds thereof shall be used solely to Redeem, Debt under the Permitted Senior Unsecured Notes in a single transaction or series of substantially contemporaneous related transactions pursuant to the Borrower’s exchange offer launched on or about April 22, 2020 (as amended or extended from time to time).
(k) Debt not permitted by the foregoing clauses (a) through (j) which is approved in writing by the Majority Lenders.
Appears in 1 contract
Samples: Credit Agreement (Centennial Resource Development, Inc.)
Debt. NotNeither Lessee, and not suffer or permit Guarantor nor any Group Member toSubsidiary will incur, create, incur, assume or suffer permit to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(ai) Obligations under this Agreement Debt (including unfunded commitments) of Lessee or Guarantor existing on the Closing Date which is reflected in the Financial Statements or is disclosed in Schedule 11, and the other Loan Documentsany renewals, extensions, refinancings and modifications (but not increases) thereof;
(bii) accounts payable (for the deferred purchase price of Property or services) from time to time incurred in the ordinary course of business which, if greater than 90 days past the invoice or billing date, are being contested in good faith by appropriate proceedings if reserves adequate under GAAP shall have been established therefor;
(iii) Debt secured of Lessee under Hedging Agreements which are for bona fide business purposes and are not speculative; and
(iv) Operating Equipment Lease Obligations;
(v) other Debt of Lessee and its Domestic Subsidiaries, incurred or assumed, not to exceed $35,000,000 in the aggregate;
(vi) Debt evidenced by Liens permitted by Section 7.2(d)Capital Lease Obligations and Purchase Money Indebtedness, and any Permitted Refinancings thereof; provided that in no event shall the aggregate principal amount of all such Debt Capital -49- 51 Lease Obligations and Purchase Money Indebtedness permitted by this clause (vii) exceed $30,000,000 at any time outstanding shall not exceed CDN$1,000,000outstanding;
(cvii) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt arising from the honoring by a bank surety bonds, appeal bonds or other financial institution of a check, draft or similar instrument drawn against insufficient funds custom bonds required in the ordinary course of businessbusiness or in connection with the enforcement of rights or claims of the Lessee or any of its Subsidiaries or in connection with judgments that do not result in a Lease Default or a Lease Event of Default, provided that the aggregate outstanding amount of all cash surety bonds, appeal bonds and custom bonds permitted by this clause (vii) shall not at any time exceed $5,000,000; and
(viii) Debt of any Foreign Subsidiary of Lessee or Guarantor the proceeds of which Debt are used for such Foreign Subsidiary's and/or their Foreign Subsidiaries' working capital and general corporate purposes ("Foreign Subsidiary Indebtedness")
(ix) Debt for borrowed money of a Subsidiary acquired pursuant to an acquisition or merger permitted pursuant to the terms of this Agreement (or such Debt is assumed by Lessee or one of its Subsidiaries at the time of such permitted acquisition or merger), provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums shall not exceed $65,000,000 in the ordinary course of business;
(i) guaranties by Borrower of the Debt of aggregate at any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as time and such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with with, or in anticipation or contemplation of such Permitted Acquisition permitted acquisition or merger; and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than provided further that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does permitted pursuant to this clause (ix) that has a scheduled maturity date that is earlier than the Revolver shall not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt$30,000,000.
Appears in 1 contract
Samples: Participation Agreement (Universal Compression Inc)
Debt. Not, and not suffer or permit Neither the Borrower nor any Group Member toof its Subsidiaries will incur, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations the Term Loan Notes or other Indebtedness arising under this Agreement and the Term Loan Documents (including, for the avoidance of doubt, any Indebtedness arising from the exercise of the PIK Option) or any guaranty of or suretyship arrangement for the Term Loan Notes or other Indebtedness arising under the Term Loan Documents;.
(b) Debt secured accounts payable and other accrued expenses, liabilities or other obligations to pay (for the deferred purchase price of Property or services) from time to time incurred in the ordinary course of business which are not greater than 90 days past the date of invoice or delinquent or which are being contested in good faith by Liens permitted by Section 7.2(d), appropriate action and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;for which adequate reserves have been maintained in accordance with GAAP.
(c) intercompany Debt which between the Borrower and any of its Subsidiaries or between Subsidiaries to the extent permitted by Section 9.05(g); provided that such Debt is not held, assigned, transferred, negotiated or pledged to any Person other than the Borrower or one of their Wholly-Owned Subsidiaries, and, provided further, that any such Debt owed by either the Borrower or a Guarantor shall be subordinated to the Obligations Indebtedness on terms set forth in the Term Loan Guaranty Agreement.
(d) endorsements of negotiable instruments for collection in the ordinary course of business.
(e) other Debt not to exceed $10,000,000 in the aggregate at any one time outstanding.
(f) Debt under this Agreement and any Senior Notes existing on the other Loan DocumentsEffective Date or issued after the Effective Date, provided provided, that (i) at the holder(stime of incurring such Debt, (A) no Default has occurred and is then continuing, (B) no Default would result from the incurrence of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of such Debt (and the application any concurrent repayment of Debt with the proceeds thereofof such incurrence) and (C) the Borrower shall be in compliance with Section 9.01 on a pro forma basis (provided that solely with respect to this provision, with the financial covenants set forth reference to “December 31, 2018” in Section 7.13 (but9.01(b) will be replaced with “June 30, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 20132017”), and (D) the ratio of Total Debt to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination is no greater than 5.25 to 1.00; (ii) such Debt does not have any scheduled amortization prior to one year after the Maturity Date; (iii) such Debt does not mature sooner than one year after the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to Maturity Date and (iv) the incurrence terms of such Debt are not materially more onerous, taken as a whole, than the terms of this Agreement and the application other Term Loan Documents.
(g) Permitted Refinancing Debt (it being understood and agreed that a refinancing of a Debt under any RBL Facility will be governed by Section 9.02(j) and not this clause (g)).
(h) [Reserved].
(i) [Reserved].
(j) Debt under RBL Facilities in an aggregate principal amount not to exceed at any one time outstanding (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Borrower and Guarantors thereunder) the greater of:
(i) the result of (A) $630,000,000 minus (B) the aggregate amount equal to the greater of (1) Borrowing Base reductions and (2) permanent reductions to the commitments, in each case, under the RBL Facilities, attributable to assets that are Disposed after the Effective Date (so long as the proceeds thereofof such Dispositions are used to repay Debt under the RBL Facilities) plus (C) the aggregate amount equal to the lesser of (1) Borrowing Base increases and (2) permanent increases to the commitments, for in each case, under the RBL Facilities, attributable to assets of the Borrower and its Subsidiaries after the Effective Date; provided, that in no event shall this clause (i) exceed $630,000,000; and
(ii) the sum of (A) the most recently ended Computation Period established Borrowing Base under the RBL Facilities plus (B) any or all of the following which is applicable (but without duplication): (1) the amount of any Borrowing Base Deficiency and (2) any Revolving Credit Exposures in excess of the Aggregate Maximum Credit Amounts (as defined in the RBL Credit Agreement in effect as of the date hereof) resulting from a reduction of the Aggregate Maximum Credit Amounts (as defined in the RBL Credit Agreement in effect as of the date hereof); provided that after giving pro forma effect to any such Debt to be incurred on any date of determination (other than any Debt under any RBL Facility incurred in exchange for, or proceeds of which are used to replace or refinance, all or any Debt outstanding under any other RBL Facility), the Borrower’s ratio of First Lien Debt to EBITDA (as such ratio is recomputed on such date of determination using (a) First Lien Debt outstanding on such date of determination and (b) EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available, ) shall not be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
greater than: (i) guaranties by Borrower of 3.50 to 1.00, at any time during the Debt of period from and including the Effective Date through December 31, 2016, (ii) 3.25 to 1.00, at any Loan Party that is a Wholly-Owned Subsidiary of Borrower time during the fiscal quarter ending Xxxxx 00, 0000, (xxx) 3.00 to 1.00, at any time during the fiscal quarter ending June 30, 2017 and (iv) 2.50 to 1.00, at any time on or guaranties by any Subsidiary thereof of after July 1, 2017. Notwithstanding the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of foregoing, if the Borrower or is not permitted to incur Debt under RBL Facilities based on the ratios of First Lien Debt to EBITDA set forth above, it may borrow up to $30 million at any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;time outstanding under RBL Facilities if needed to meet temporary working capital needs.
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller DebtSecured Swap Obligations and Secured Cash Management Obligations.
Appears in 1 contract
Debt. Not, and not suffer or permit Neither the Borrower nor any Group Member toSubsidiary will incur, create, incur, assume or suffer permit to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) The Loans or other Obligations under this Agreement and or any guaranty of or suretyship arrangement for the Loans or other Loan DocumentsObligations;
(b) Debt secured by Liens permitted by Section 7.2(d)of the Borrower or any Subsidiary existing on the Closing Date which is reflected in the Financial Statements or is disclosed in Schedule 9.01, and any Permitted Refinancings renewals or extensions (but not increases) thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated accounts payable (for the deferred purchase price of Property or services) from time to time incurred in the Obligations ordinary course of business which, if greater than 90 days past the invoice or billing date, are being contested in good faith by appropriate proceedings if reserves adequate under this Agreement and the other Loan Documents, provided that GAAP shall have been established therefor;
(d) (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereofcapital leases, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013)Equipment Leases, and (iii) purchase money Debt which in each purchase money Debt case shall not exceed 100% of the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to lesser of the incurrence of such Debt total purchase price and the application fair market value of the proceeds thereofProperty acquired as determined at the time of acquisition, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
provided all Debt incurred pursuant to this clause (d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agentnot exceed $18,000,000 per fiscal year;
(e) Subordinated Debt described on Schedule 7.1 so long as of the Closing Date, and any Permitted Refinancing thereofBorrower has delivered a Compliance Certificate concurrently with the issuance thereof demonstrating pro forma compliance with Article IX;
(f) Contingent Obligations arising with respect to customary indemnification obligations prepayments for services rendered in favor the ordinary course of purchasers business provided that no default exists in connection with dispositions permitted under Section 7.5;delivery of the service for which any such prepayments were made.
(g) Debt arising from between and among the honoring by a bank or Borrower and/or any Guarantors (other financial institution of a check, draft or similar instrument drawn against insufficient funds in than the ordinary course of business, provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrenceParent);
(h) surety bonds and similar instruments of the nature and for the purposes described in Schedule 7.02, item 1;
(i) obligations of Waste Corporation Texas under the Installment Sale Agreement and the documents related thereto;
(j) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;First Lien Financing; and
(ik) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements no Default has occurred and continuing, unsecured earn-out obligations of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of Guarantor payable to a Loan Party Subsidiary of the Borrower issued seller and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted a Qualified Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller DebtExpenditure.
Appears in 1 contract
Debt. NotCreate, and not incur, assume or suffer to exist, or permit any Group Member to, of its Subsidiaries to create, incur, assume or suffer to exist exist, any DebtDebt other than pursuant to the AYE Loan Documents, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(ai) Obligations Debt outstanding as of the date hereof under this Agreement and the other Loan DocumentsBond Instruments;
(bii) in the case of any Borrower other than the Parent, unsecured Debt secured by Liens permitted by Section 7.2(d)owed to a wholly owned Subsidiary of the Parent that is not an AESC Company, which Debt shall mature no earlier than the date occurring six months after the date specified in clause (a) of the definition of "Termination Date", and any Permitted Refinancings thereof; provided that the aggregate principal amount of all with no amortization or mandatory prepayment thereof prior to such Debt at any time outstanding shall not exceed CDN$1,000,000date;
(ciii) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that Permitted Regulated Subsidiary Debt;
(iiv) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage RatioParent only, determining any other unsecured Debt (including pursuant to any Debt/Equity Issuance) created or incurred by the maximum permissible Maximum Total Leverage Ratio as 0.25 less Parent with a scheduled maturity date falling no earlier than the applicable Maximum Total Leverage Ratio set forth date occurring six months after the date specified in clause (a) of the definition of "Termination Date", and with no amortization or mandatory prepayments thereof prior to such date; provided that (A) the Required Prepayment Amount relating thereto is applied in accordance with Section 2.06(b) and (B) no later than 30 days prior to the entry by the Parent into any agreement or contract relating thereto, the Parent shall have delivered to the AYE Lender Agent pro forma financial projections, in form and substance reasonably satisfactory to the AYE Lender Agent, demonstrating compliance with the covenants in Section 7.13.2 for 5.04 up to and including the applicable Computation Period), date specified in each case for the most recently ended Computation Period for which financial statements are available clause (and disregarding the qualifications in Section 7.13 that limit the applicability a) of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to definition of "Termination Date" following the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation PeriodDebt;
(dv) the AESC Debt;
(vi) any Debt which is listed in Schedule III;
(vii) [Intentionally Omitted]
(viii) any Debt incurred by the Regulated Subsidiaries of Borrower up to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower an aggregate principal amount not to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrowerexceed $100,000,000 for their respective corporate purposes; provided that all such the Required Prepayment Amount relating thereto is applied in accordance with Section 2.06(b);
(ix) Debt shall be evidenced under the Hagerstown Facility and the BB&T Facility;
(x) reimbursement obligations for amounts paid on behalf of the Parent or any of its Subsidiaries by the Parent or one or more Subsidiaries in accordance with applicable requirements under PUHCA with respect to the provision of goods or services to the Parent and one or more Subsidiaries of the Parent and two or more Subsidiaries of the Parent;
(xi) Debt that is secured by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent Lien permitted under Section 5.02(a)(ii) or (iii);
(xii) Debt incurred by the Parent or any of its Subsidiaries (other than an AESC Company) pursuant to the applicable Collateral Document as additional collateral security for Money Pool Orders; and
(xiii) any other unsecured Debt extending the Obligationsmaturity of, or refunding or refinancing, in whole or in part, any Debt referred to in clauses (xi) and (xii); provided that the terms of any such extending, refunding or refinancing Debt, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, any agreement entered into and of any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers instrument issued in connection with dispositions permitted under Section 7.5;
(g) Debt arising from the honoring by a bank or other financial institution of a checktherewith, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock are otherwise permitted by this Agreement;
, provided further that (kA) the principal amount of any such Debt shall not be increased above the aggregate of a Loan Party Subsidiary (1) the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing and (2) accrued and unpaid interest, fees and customary transaction costs and expenses directly related to such extension, refunding or refinancing, (B) any such Debt matures no earlier than the date occurring six months after the date specified in clause (a) of the Borrower issued definition of "Termination Date" and outstanding on has no required amortization or mandatory prepayment prior to such date and (C) the date on which such Subsidiary was acquired by the Borrower direct and contingent obligors therefor shall not be changed, in each case, as a result of or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with such extension, refunding or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtrefinancing.
Appears in 1 contract
Debt. NotCreate, and not incur, assume or suffer to exist, or permit any Group Member to, of its Subsidiaries to create, incur, assume or suffer to exist exist, any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesother than:
(a) Obligations Debt under this Agreement and the other Loan Documents;
(b) the Senior Secured Notes in an aggregate principal amount outstanding as of the Closing Date (as subsequently reduced by the amount of any payments or prepayments of principal thereof made after the Closing Date) and any Permitted Refinancing Debt in respect thereof;
(c) the Existing Senior Convertible Notes in an aggregate principal amount outstanding as of the Closing Date (and any additions of paid in kind interest to the outstanding principal amount thereof) (as subsequently reduced by the amount of any payments or prepayments of principal thereof made after the Closing Date);
(d) in the case of the Borrower only, Subordinated Debt that is (i) additional senior convertible notes issued on terms that are identical to the Existing Senior Convertible Notes or (ii) other Subordinated Debt, in each case that (x) is unsecured and subordinated to the Obligations of the Co-Borrowers hereunder on the terms required by the definition of “Subordinated Debt” and (y) has a scheduled maturity that is later than six (6) months following the scheduled final maturity date of the Facility (all Subordinated Debt satisfying the foregoing, “Permitted Subordinated Debt”) in each case so long as the Payment Conditions are satisfied both before and after giving effect to the incurrence of such Debt;
(e) in the case of Subsidiary Guarantors only, guaranty Obligations in respect of (i) the Senior Secured Notes, (ii) Permitted Subordinated Debt of the Borrower or (iii) Other Permitted Debt; provided that such guaranty Obligations of Permitted Subordinated Debt are unsecured and subordinated on the same terms as the Obligations of the Borrower in respect of such Permitted Subordinated Debt are subordinated;
(f) 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 not prohibited 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 plus the amount of fees and expenses incurred in connection with 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) in the case of Accuride Canada only, Debt incurred on the Closing Date in the form of an intercompany loan made by the Borrower, the proceeds of which are to be used to repay outstanding obligations of Accuride Canada under the Existing Credit Agreement, provided that the conditions in the proviso to Section 6.02(p) are satisfied;
(h) Debt secured by Liens permitted by Section 7.2(d), 6.01(d) and any Permitted Refinancings thereof; provided that the Capitalized Leases not to exceed an aggregate principal amount of all such Debt equal to $15,000,000 at any time outstanding shall not exceed CDN$1,000,000outstanding;
(ci) Debt which is subordinated in respect of Hedge Agreements incurred in the ordinary course of business and providing protection to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be against fluctuations in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, currency values or commodity prices in connection with the financial covenants set forth Borrower’s or its Subsidiaries’ operations, in Section 7.13 either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for speculative purposes;
(but, j) in the case of the Maximum Total Leverage Ratioany Foreign Subsidiary only, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth Debt in Section 7.13.2 for the applicable Computation Periodan aggregate principal amount, when aggregated with any Debt incurred by all other Foreign Subsidiaries pursuant to this clause (j), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein not to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Periodexceed $10,000,000 at any time outstanding;
(dk) Debt consisting of an undertaking by the Borrower to any Loan Party that is a Wholly-Owned Subsidiary guaranty the obligations of Borrower or Foreign Subsidiaries with respect to Debt in an aggregate principal amount not to exceed the amount of any Loan Party that is a Wholly-Owned Subsidiary of Borrower Debt permitted to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all be incurred by such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent Foreign Subsidiaries pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to AgentSection 6.02(j);
(el) Debt described on Schedule 7.1 as consisting of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising promissory notes issued with respect to customary indemnification obligations any repurchase of capital stock (and/or options or warrants in favor respect thereof) permitted to be purchased pursuant to Section 6.06(c) in an aggregate principal amount not to exceed $1,000,000 during the term of purchasers in connection with dispositions permitted under Section 7.5;the Facility; and
(gm) Debt arising from the honoring by a bank endorsement of negotiable instruments for deposit or other financial institution of a check, draft collection or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums transactions in the ordinary course of business;
(n) 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;
(o) Debt in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business; and
(p) (i) guaranties Debt owed by Borrower any Loan Party to any other Loan Party, (ii) Debt owed by any non-Loan Party to any other non-Loan Party, (iii) Debt owed by any Loan Party to any non-Loan Party and (iv) Debt owed to any Loan Party by any non-Loan Party in an amount not exceeding the amount of any Investment made pursuant to, and permitted under, Section 6.05(g) and/or Section 6.05(h), 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 reasonably satisfactory to the Administrative Agent, (y) each intercompany loan owed by a Loan Party to a non-Loan Party shall be subject to subordination provisions or a subordination agreement substantially in the form attached hereto as Exhibit P or otherwise in form and substance reasonably satisfactory to the Administrative Agent (such agreement, the “Subordination Agreement”), 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;
(q) Debt of any Loan Party that Person existing at the time such Person is a Wholly-Owned Subsidiary of merged into or consolidated or amalgamated with the Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements or becomes a Subsidiary of the Borrower or any other Loan Party Subsidiary in accordance with the provisions of Section 6.05(l); provided that (x) such Debt was not incurred in contemplation of such merger, consolidation, amalgamation or investment and (y) the Borrower providing for indemnification, adjustment aggregate principal amount of purchase price or similar obligations all Debt incurred under this clause (including earn-outs), q) shall in each case entered into no event exceed $10,000,000 in connection with Permitted Acquisitions or the disposition of aggregate at any business, assets or Stock permitted by this Agreementtime outstanding;
(kr) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was any Person acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting pursuant to a Permitted Acquisition permitted under Section 7.11(g(or Debt assumed at the time of a Permitted Acquisition) (any such Debt, “Permitted Acquired Debt”), together with provided that (x) neither the Borrower nor any Subsidiary which consummated such Permitted Refinancing thereof; provided thatAcquisition is liable for such Debt, (iy) such Debt (x) was not incurred in connection with with, or in anticipation of or contemplation of, such Permitted Acquisition and (yz) is not secured by any Lien created in connection with or in anticipation Payment Conditions are satisfied both before and after giving effect to the incurrence of such Permitted Acquisition or on any property Debt;
(s) other than that which secured it before such Permitted Acquisition and (ii) the Debt outstanding in an aggregate outstanding principal amount of all not to exceed $20,000,000 at any time outstanding (such Debt does not exceed CDN$2,000,000 at any timeincurred pursuant to this clause (s), “Other Permitted Debt”); and
(lt) Debt of any Person incurred in order to finance a Permitted Seller Debt; provided that (i) Acquisition so long as the aggregate outstanding principal amount Payment Conditions are satisfied both before and after giving effect to the incurrence of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt.
Appears in 1 contract
Samples: Abl Credit Agreement (Accuride Corp)
Debt. Not, and not suffer or permit Neither the Borrower nor any Group Member toSubsidiary will incur, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations under this Agreement and the Notes or other Loan DocumentsIndebtedness or any guaranty of or suretyship arrangement for the Notes or other Indebtedness;
(b) Debt secured by Liens permitted by Section 7.2(d)of the Borrower existing on the Closing Date which is reflected in the Financial Statements or is disclosed in Schedule 9.01, and any Permitted Refinancings renewals or extensions (but not increases) thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated accounts payable (for the deferred purchase price of Property or services) from time to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, time incurred in the case ordinary course of business which, if greater than 90 days past the Maximum Total Leverage Ratioinvoice or billing date, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth are being contested in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, good faith by appropriate proceedings if reserves adequate under GAAP shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Periodhave been established therefor;
(d) Debt associated with bonds or surety obligations required by Governmental Requirements in connection with the operation of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form the Oil and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to AgentGas Properties;
(e) Debt, in form and substance customary for Debt described of such type and otherwise reasonably satisfactory to the Agent, associated with Hedging Agreements which may be entered into after the Closing Date that are traded on Schedule 7.1 as exchanges or that are with the Agent (or any Affiliate of the Closing Date, and any Permitted Refinancing thereof;
(fAgent) Contingent Obligations arising with respect to customary indemnification obligations or such other Person as the Agent may approve in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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, writing; provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was Hedging Agreements are being used by the Borrower to hedge expected potential fluctuations of the price of oil and gas or for other business purposes and not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition for speculation and (ii) the aggregate outstanding principal amount (including the notional amount of notional amount contracts) of all such Debt does Hedging Agreements shall not exceed CDN$2,000,000 at 50% of the Borrower's projected oil and gas production for any timeyear;
(f) At such time as the Borrowing Base is equal to the Threshold Amount, Debt of Bonray or any Subsidiary not existing on the date hereof (other than a Subsidiary which acquires the Texaco Property or the Property of any Other Acquisition, directly or indirectly), on terms reasonably acceptable to the Agent, for which the Person to whom such Debt is owed has no recourse to such Subsidiary (whether as a primary or secondary obligor) for the payment thereof except to the Property securing such Debt; provided, however that such Property is not Property owned by the Borrower, any Subsidiary existing on the date hereof (other than Bonray),
(g) Debt, resulting from the prepayment to the Borrower for well costs, which Debt is incurred, pursuant to joint operating agreements or drilling contracts entered into in the ordinary course of the Borrower's business; and
(lh) Permitted Seller Debt; provided that (i) Subordinated Debt not to exceed $100,000,000 in the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtaggregate.
Appears in 1 contract
Samples: Credit Agreement (DLB Oil & Gas Inc)
Debt. NotBorrower will not, and not suffer or nor will Borrower permit any Group Member other Credit Party to, create, incur, assume become or suffer to exist remain liable for any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiaries:
other than (a) Obligations under this Agreement and the other Loan Documents;
Obligations, (b) Debt secured by Liens permitted by Section 7.2(d)of any Credit Party to any other Credit Party, and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan DocumentsPermitted Purchase Money Debt, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower subject to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant adjustment to the applicable Collateral Document as additional collateral security for the ObligationsBorrowing Base required under Section 2.15, Senior Notes and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, any guarantees thereof and any Permitted Refinancing thereof;
(f) Contingent Obligations arising Debt, provided that, solely with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction Senior Notes not constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided thatDebt, (i) such Debt (x) was Senior Notes do not incurred in connection with or in anticipation have any scheduled amortization prior to the stated maturity of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and Senior Notes, (ii) such Senior Notes do not mature sooner than a date that is at least 180 days following the aggregate outstanding principal amount Termination Date in effect on the date of all issuance of such Debt does not exceed CDN$2,000,000 at Senior Notes, (iii) such Senior Notes and any time; and
guarantees thereof are on market terms for similar instruments of issuers of similar size and credit quality given the then prevailing market conditions, (liv) Permitted Seller Debt; as determined in good faith by the senior management of Borrower, such Senior Notes and any guarantees thereof are on terms, taken as a whole, no more restrictive or burdensome than this Agreement, provided that (iA) the aggregate outstanding principal financial maintenance covenants with respect to such Senior Notes are not more restrictive than those in this Agreement and (B) the representations and warranties, covenants (other than financial maintenance covenants) and events of default of such Senior Notes are not, taken as a whole, more restrictive or burdensome than those in this Agreement, and (v) such Senior Notes do not have any mandatory prepayment or redemption provisions (other than customary change of control or asset sale tender offer provisions) which would require a mandatory prepayment or redemption in priority to the Obligations, and (e) other Debt in an amount of all such Permitted Seller Debt does not to exceed CDN$2,000,000 at any time and $10,000,000 in the aggregate. Solely for purposes of clause (yd) of this Section 9.1, any Permitted Senior Debt for the payment of which the proceeds of other Senior Notes or Permitted Refinancing Debt has been deposited in trust or otherwise set aside shall be deemed no Group Member longer “outstanding” so long as such Permitted Senior Debt is repaid within sixty (60) days after the Credit Parties’ receipt of proceeds of such other than the Borrower will be obligated in respect of Senior Notes or Permitted Seller Refinancing Debt.
Appears in 1 contract
Debt. Not, and not suffer or permit any Group Member to, create, incurIncur, assume or suffer allow to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations under this Agreement and the other Loan DocumentsObligations;
(b) Debt secured by Liens permitted by Section 7.2(dexisting on the date hereof which is identified on Schedule 6.1(b), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to under the Obligations under this Agreement and the other Loan Basic Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party Capital Leases that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note do not exceed $250,000 in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;aggregate
(e) Debt described on Schedule 7.1 as of the Closing Date, and any secured by a Permitted Refinancing thereofEncumbrance;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions Debt under a Hedging Agreement permitted under Section 7.5this Agreement;
(g) Debt arising from accounts payable, accrued expenses, and obligations to pay the honoring by a bank deferred purchase price of property or other financial institution of a check, draft or similar instrument drawn against insufficient funds services that (i) are incurred in the ordinary course of business, provided that such Debt is extinguished within two (2ii) Business Days of notice to are not more than 90 days past due or otherwise delinquent, and (iii) do not exceed $250,000 in the aggregate (excluding amounts being diligently contested in good faith and by appropriate action by Borrower or the relevant Subsidiary of its incurrenceand against which Borrower maintains adequate reserves in accordance with GAAP);
(h) Debt letters of credit, worker’s compensation claims, surety bonds and performance bonds incurred in connection the ordinary course of business, and, with the financing respect to each such instrument or claim that exceeds $250,000, Approved by Administrative Agent in its reasonable discretion;
(i) guaranties permitted to exist pursuant to Section 6.3;
(j) endorsements of insurance premiums negotiable instruments for collection in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of Approved by Administrative Agent in its reasonable discretion and fully subordinated to the Obligations pursuant to a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any timeSubordination Agreement; and
(l) Permitted Seller Debt which represents an extension, refinancing or renewal of any of the Debt described in Sections 6.1(b)-(j) (such Debt being so extended, refinanced or renewed being referred to herein as the “Refinanced Debt”); provided that (i) such Refinancing Debt does not increase the aggregate outstanding principal amount of all the Refinanced Debt, except in the amount of reasonable and customary fees, cost and expenses incurred in connection with the extension, renewal or replacement, (ii) any Liens securing such Permitted Seller Refinanced Debt are not extended to any additional property of Borrower, (iii) such Refinancing Debt does not exceed CDN$2,000,000 result in a shortening of the average weighted maturity of such Refinanced Debt, (iv) if such Refinanced Debt was subordinated in right of payment to the Obligations, then the terms and conditions of such Refinancing Debt must include subordination terms and conditions that are at any time least as favorable to the Administrative Agent and the Lenders as those that were applicable to such Refinanced Debt, (v) no Event of Default exists; (vi) Borrower has provided three days prior written notice to Administrative Agent of its intention to incur Refinanced Debt, and (yvii) no Group Member other than Borrower has provided Administrative Agent with all information reasonably requested by Administrative Agent in order to confirm that the Borrower will be obligated in respect of Permitted Seller DebtRefinanced Debt complies with this Section 6.1(l).
Appears in 1 contract
Debt. NotNo Credit Party shall, and not suffer or nor shall it permit any Group Member of its Subsidiaries to, create, assume, incur, assume or suffer to exist exist, or in any Debtmanner become liable, except for directly, indirectly, or contingently in respect of, any Debt other than the following Debt of (collectively, the Borrower and/or Loan Party Subsidiaries:“Permitted Debt”):
(a) Obligations under this Agreement and the other Loan DocumentsObligations;
(b) intercompany Debt secured incurred in the ordinary course of business owed by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereofCredit Party to any other Credit Party; provided that the aggregate principal amount of all that, if applicable, such Debt at any time outstanding shall not exceed CDN$1,000,000as an investment is also permitted in Section 6.3;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the form of accounts payable to trade creditors for goods or services and current operating liabilities (other than for borrowed money) which in each case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less are not more than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period)90 days past due, in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds incurred in the ordinary course of business, as presently conducted, unless contested in good faith and by appropriate proceedings;
(d) (i) purchase money indebtedness and Capital Leases in effect on the Effective Date and set forth in Schedule 6.1 and (ii) such other purchase money indebtedness or Capital Leases incurred after the Effective Date; provided that, the aggregate outstanding principal amount of such purchase money indebtedness and Capital Leases incurred after the Effective Date shall not exceed (A) during the Alternative Covenant Period, $5,000,000.00 and (B) at all other times, $25,000,000.00;
(e) Debt for borrowed money incurred after the Effective Date; provided that (i) such Debt is extinguished within two unsecured or the Secured Obligations hereunder are secured on a pari passu basis with such Debt on terms satisfactory to the Administrative Agent, (ii) the covenants under instruments or agreements governing the credit facility for such Debt (including, without limitation, indentures) are not more restrictive than such covenants set forth in this Agreement as reasonably determined by the Administrative Agent, (iii) the scheduled maturity of such Debt is at least 90 days past the scheduled Maturity Date and no amortization payments, mandatory prepayments, mandatory redemptions or mandatory repurchases of such Debt are required thereunder other than at the scheduled maturity thereof (other than amortization payments, mandatory prepayments, mandatory redemptions or mandatory repurchases required in respect of such Debt in connection with the occurrence of an event of default under such Debt, a change of control of the issuer (including a disposition of all or substantially all of the assets of the Borrower and its Subsidiaries, a liquidation or dissolution of the Borrower, or any event constituting a Change of Control (as defined herein) or an asset sale by the issuer or a Subsidiary thereof), (iv) the Borrower and its Subsidiaries are in pro forma compliance with the covenants set forth in this Agreement, both before and after giving effect to each incurrence of such Debt, and (v) the aggregate amount of Debt permitted under this clause (e) shall not exceed (A) during the Alternative Covenant Period, the lesser of (1) $20,000,000.00 and (2) Business Days 5% of notice to Borrower or the relevant Subsidiary Borrower’s Tangible Net Worth as set forth in the financial statements most recently delivered under Section 5.2, and (B) at all other times, 20% of its incurrencethe Borrower’s Tangible Net Worth as set forth in the financial statements most recently delivered under Section 5.2 when incurred;
(f) Debt in respect of Hedging Arrangements;
(g) letters of credit issued by Xxxxx Fargo Bank, National Association; and
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower pursuant to one or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from more loan agreements of between the Borrower or any Loan Party Subsidiary and CARBO Ceramics (Eurasia) LLC, a company duly organized and existing under the laws of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller DebtRussia; provided that (i) such Debt is unsecured, (ii) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 outstanding at any time shall not to exceed $6,000,000.00, and (yiii) no Group Member such Debt is subordinated to the Debt under this Agreement and the other than Credit Documents on terms reasonably acceptable to the Borrower will be obligated in respect of Permitted Seller DebtAdministrative Agent.
Appears in 1 contract
Debt. NotWithout the prior consent of the Majority Tranche B Lenders, and not suffer or permit neither Lessee, Guarantor nor any Group Member toSubsidiary will incur, create, incur, assume or suffer permit to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(ai) Obligations under this Agreement Debt (including unfunded commitments) of Lessee or Guarantor existing on the Closing Date which is reflected in the Financial Statements or is disclosed in Schedule 11, and the other Loan Documentsany renewals, extensions, refinancings and modifications (but not increases) thereof;
(bii) accounts payable (for the deferred purchase price of Property or services) from time to time incurred in the ordinary course of business which, if greater than 90 days past the invoice or billing date, are being contested in good faith by appropriate proceedings if reserves adequate under GAAP shall have been established therefor;
(iii) Debt secured of Lessee under Hedging Agreements which are for bona fide business purposes and are not speculative; and
(iv) Operating Equipment Lease Obligations;
(v) other Debt of Lessee and its Domestic Subsidiaries, incurred or assumed, not to exceed $35,000,000 in the aggregate;
(vi) Debt evidenced by Liens permitted by Section 7.2(d)Capital Lease Obligations and Purchase Money Debt, and any Permitted Refinancings thereof; provided that in no event shall the aggregate principal amount of all such Capital Lease Obligations and Purchase Money Debt permitted by this clause (vi) exceed $30,000,000 at any time outstanding shall not exceed CDN$1,000,000outstanding;
(cvii) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt arising from the honoring by a bank surety bonds, appeal bonds or other financial institution of a check, draft or similar instrument drawn against insufficient funds custom bonds required in the ordinary course of businessbusiness or in connection with the enforcement of rights or claims of the Lessee or any of its Subsidiaries or in connection with judgments that do not result in a Lease Default or a Lease Event of Default, provided that the aggregate outstanding amount of all cash surety bonds, appeal bonds and custom bonds permitted by this clause (vii) shall not at any time exceed $5,000,000; and
(viii) Debt of any Foreign Subsidiary of Lessee or Guarantor the proceeds of which Debt are used for such Foreign Subsidiary's and/or their Foreign -51- Subsidiaries' working capital and general corporate purposes ("Foreign Subsidiary Indebtedness")
(ix) Debt for borrowed money assumed by Lessee or one of its Subsidiaries, or of a Subsidiary of Lessee acquired, pursuant to an acquisition or merger permitted pursuant to the terms of this Agreement, provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums shall not exceed $65,000,000 in the ordinary course of business;
(i) guaranties by Borrower of the Debt of aggregate at any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as time and such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with with, or in anticipation or contemplation of such Permitted Acquisition permitted acquisition or merger; and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than provided further that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does permitted pursuant to this clause (ix) that has a scheduled maturity date that is earlier than the Revolver shall not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt$30,000,000.
Appears in 1 contract
Samples: Participation Agreement (Universal Compression Holdings Inc)
Debt. Not(a) Create, and not suffer incur, assume or permit to exist, or permit any Group Member to, of its Subsidiaries to create, incur, assume or suffer permit to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(ai) Obligations Debt under this Agreement and the other Loan Documents;
(bii) Intercompany Debt;
(iii) Existing Other Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereofrefinancings or renewals of such borrowed money; provided that any such refinancing of such Debt is of the same type, of the same tenor, and in an aggregate principal amount not greater than the aggregate principal amount of all such the Debt at being renewed or refinanced, plus the amount of any time outstanding shall not exceed CDN$1,000,000premiums required to be paid thereon and reasonable fees and expenses associated therewith;
(civ) Debt which incurred after the Effective Date that is subordinated to the Obligations under this Agreement and the other Loan Documentsnot secured by a Lien (including, without limitation, Capital Leases), provided that (iA) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on prior written notice thereof describing its terms and conditions satisfactory intended use is given to Agent and the Lender prior to the incurrence thereof, Banks and (iiB) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt does not collectively, exceed at any time the aggregate principal amount and the application committed availability of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period$2,000,000;
(dv) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; JPMorgan Obligations, provided that all such Debt shall be evidenced by a global intercompany demand note the JPMorgan Exposure does not at any time exceed in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agentaggregate $8,000,000;
(evi) Debt described on Schedule 7.1 as of other than Existing Other Debt incurred after the Closing Date, and Effective Date by Foreign Subsidiaries which does not any Permitted Refinancing thereoftime exceed in the aggregate $5,000,000;
(fvii) Contingent Obligations Debt arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5endorsement of instruments for deposit in the ordinary course of business;
(gviii) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, provided however, that such Debt Indebtedness is extinguished within two five (25) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(hix) Purchase Money Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any timetime $3,000,000 in the aggregate; and
(lx) Permitted Seller Debt; provided that (i) Any Debt approved in advance by the aggregate outstanding principal Agent and the Required Banks in writing. For purposes of this Section 7.01, the amount of all the Debt incurred by a Foreign Subsidiary shall be determined and fixed by using the “rate of exchange” to purchase United States Dollars in effect as of the documented closing date for such Permitted Seller Debt.
(b) Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of any subordination terms of, any Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller DebtObligations.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Hardinge Inc)
Debt. Not, and not suffer or permit any Group Member other Loan Party to, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Real Estate Debt, together with any Debt secured by Liens permitted by Section 7.2(dof any Centene Plaza Subsidiary (including Centene Plaza Debt), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt which at any one time outstanding shall when taken together with any Investments made pursuant to Section 11.9(a)(iv) does not exceed CDN$1,000,000an amount equal to 90% of the amount of the fair market value of the property securing such Real Estate Debt;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, unsecured; provided that (i) after giving effect thereto on a pro forma basis, the holder(sCompany and the other Loan Parties shall be in compliance with a Total Debt to EBITDA Ratio not greater than the applicable ratio set forth in Section 11.12.2 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Computation Period, (ii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing on the date of incurrence of such Debt enter into or could reasonably be expected to occur as a subordination agreement with Agent on behalf result thereof, (iii) the documents governing such Debt do not contain covenants (including quantitative covenants and financial covenants) which are, taken as a whole, more restrictive in any material respect than the covenants contained in this Agreement (other than covenants or other provisions (i) applicable only to periods after the Latest Maturity Date or (ii) made applicable to this Agreement), (iv) the final maturity of such Debt shall be no earlier than ninety days after the Latest Maturity Date and (v) the weighted average life to maturity of such Debt shall not be shorter than the weighted average life to maturity of any Loans or Commitments outstanding as of the Lender time of the issuance thereof; provided that clauses (iii), (iv) and (v) shall not apply to any bridge facility on customary terms and conditions satisfactory if the long-term indebtedness that such bridge facility is to Agent be converted into satisfies such clauses.
(d) Subordinated Debt which is unsecured; provided that (i) after giving effect thereto on a pro forma basis, the Company and the Lender prior other Loan Parties shall be in compliance with a Total Debt to EBITDA Ratio not greater than the applicable ratio set forth in Section 11.12.2 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Computation Period, (ii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing on the date of incurrence of such Debt or could reasonably be expected to occur as a result thereof, (iii) the documents governing such Subordinated Debt shall not contain covenants (including quantitative covenants and financial covenants) which are more restrictive in any material respect, taken as a whole, than the covenants contained in this Agreement (other than covenants or other provisions (i) applicable only to periods after the Latest Maturity Date or (ii) made applicable to this Agreement), (iv) the final maturity of such Subordinated Debt shall be no earlier than ninety days after the Latest Maturity Date and (v) the weighted average life to maturity of such Subordinated Debt shall not be shorter than the weighted average life to maturity of any Loans or Commitments outstanding as of the time of the issuance thereof;
(e) Hedging Obligations incurred for bona fide hedging purposes and not for speculation and Debt incurred in the ordinary course of business in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(f) (i) the 2021 Senior Notes, the 2022 Senior Notes, the 2024 Senior Notes, the 2025 Senior Notes and the 2026 Senior Notes outstanding on the 2019 Restatement Effective Date, (ii) the Borrower and its Subsidiaries shall be in complianceExisting Wellington Notes, on a Pro Forma Basis giving effect to the incurrence of such Debt New Senior Notes and the application of Bridge Loans; provided that the proceeds thereof, with the financial covenants set forth in Section 7.13 aggregate principal amount at any one time outstanding under this clause (but, ii) shall not exceed $8,350,000,000 in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013)aggregate, and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof11.1;
(fg) Contingent Debt under Capital Leases for capital assets or purchase money Debt whose aggregate cost if purchased would not exceed 1.50% of Consolidated Total Assets at the time of incurrence;
(h) Guarantee Obligations of the Company which do not exceed $500,000,000 in the aggregate at any time outstanding;
(i) Guarantee Obligations arising with respect to customary indemnification obligations in favor of sellers, adjustment of purchase price or similar obligations or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of the Company or any Loan Party pursuant to such agreements, in each case in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with dispositions permitted under Section 7.511.4;
(gj) Debt Guarantee Obligations arising from the honoring with respect to guaranties (which may include payment obligations) provided by a bank or other financial institution Loan Party on behalf 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) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums another Loan Party in the ordinary course of business;
(k) (i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties to the Company which results from an Investment made by any Subsidiary thereof of the Company in such Loan Party pursuant to, and permitted by, Section 11.9(b) and (ii) Debt of Borrower any Loan Party to another Loan Party which results from an Investment made by such Loan Party in each case so long as such Debt is other Loan Party pursuant to, and permitted under this by Section 7.111.9(a)(i);
(jl) Debt arising from agreements in respect of Outside Letters of Credit in an aggregate principal amount not to exceed $500,000,000;
(m) Debt of the Borrower Company or any other Loan Party (excluding Guarantee Obligations) in an aggregate amount at any one time outstanding not to exceed 3.00% of Consolidated Total Assets at the time of incurrence;
(n) assumed Debt of any Person that becomes a Loan Party after the 2019 Restatement Effective Date; provided that (i) on a pro forma basis after giving effect to the incurrence of such Debt, the Company will be in compliance with the financial covenant in Section 11.12.2 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Computation Period, (ii) such Debt exists at the time such Person becomes a Loan Party and is not created in contemplation or in connection with such Person becoming a Loan Party, (iii) neither the Company nor any Loan Party that was not an obligor with respect to such Debt prior to such Person becoming a Loan Party shall become an obligor for such Debt; and (iv) such Debt shall not be secured by a Lien on any property of the Company or any Loan Party Subsidiary that did not secure such Debt prior to such Person becoming a Loan Party (except for proceeds and the products thereof and, in the case of multiple financings of equipment provided by any lender, other equipment financed by such lender);
(o) Debt of any Loan Party (other than any letter of credit) (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of surety bonds, performance bonds or similar instruments to support any of the Borrower providing for indemnificationforegoing items;
(p) Debt of any Loan Party (other than any letter of credit, adjustment but including obligations in respect of bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Debt) incurred by such Loan Party in respect of workers compensation claims, unemployment insurance (including premiums related thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits;
(q) Debt representing the deferred purchase price of property (including intellectual property) or similar obligations (services, including earn-outs)out obligations, in each case entered into purchase price adjustments, escrow arrangements or other arrangements representing deferred payments incurred in connection with Permitted Acquisitions any Acquisition permitted or the disposition of any business, assets or Stock permitted by this Agreement;consented to hereunder; and
(kr) Debt provided that no Unmatured Event of a Default or Event of Default shall have occurred and is continuing or would result therefrom, the incurrence or issuance by the Company or any other Loan Party Subsidiary of the Borrower issued and outstanding on the date on Debt which such Subsidiary was acquired by the Borrower serves to extend, replace, refund, renew, defease or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition refinance any Debt incurred as permitted under Section 7.11(gclauses (f), together with (g), (m) and (n) of this Section 11.1 or any Permitted Debt issued to so extend, replace, refund, renew, defease or refinance such Debt (“Refinancing thereofDebt”); provided provided, however, that, (i) the final maturity date of such Refinancing Debt shall be no earlier than ninety days after the Latest Maturity Date, (xii) was the weighted average life to maturity of such Refinancing Debt shall not be shorter than the weighted average life to maturity of the Debt being extended, replaced, refunded, renewed, defeased or refinanced, (iii) to the extent such Refinancing Debt extends, replaces, refunds, renews, defeases or refinances Debt subordinated or pari passu to the Obligations, such Refinancing Debt is subordinated or pari passu to the Obligations at least to the same extent (as determined in good faith by the board of directors of the Company) as the Debt being extended, replaced, refunded, renewed, defeased or refinanced and (iv) such Refinancing Debt shall be in an amount not greater than the amount of the Debt being extended, replaced, refunded, renewed, defeased or refinanced plus an additional amount incurred to pay reasonable premiums (including tender premiums) outstanding and unpaid interest and reasonable fees and expenses incurred in connection with therewith; provided, further, however, that to the extent that any Debt incurred under clauses (g) or in anticipation of such Permitted Acquisition and (ym) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and refinanced pursuant to this clause (ii) r), then the aggregate outstanding principal amount of all such Refinancing Debt does shall be deemed to utilize the related basket under the applicable clause on a dollar-for-dollar basis (it being understood that an Unmatured Event of Default or Event of Default shall be deemed not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided to have occurred solely to the extent that (i) the aggregate outstanding principal incurrence of such Refinancing Debt would cause the permitted amount of all under such Permitted Seller Debt does not exceed CDN$2,000,000 at any time Section to be exceeded and (y) no Group Member other than the Borrower will such excess shall be obligated in respect of Permitted Seller Debtpermitted hereunder).
Appears in 1 contract
Samples: Credit Agreement (Centene Corp)
Debt. Not, and not suffer or permit Neither it nor any Group Member toof its Restricted Subsidiaries will incur, create, incur, assume or suffer permit to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations under this Agreement and the Notes, the BA Equivalent Notes, the Bankers’ Acceptances or other Loan DocumentsIndebtedness or any guaranty of or suretyship arrangement for the Notes, the BA Equivalent Notes, the Bankers’ Acceptances or other Indebtedness;
(b) Debt secured by Liens permitted by Section 7.2(d)(including unfunded commitments) of it or its Subsidiaries existing on the Closing Date which is reflected on the Financial Statements or is disclosed in Schedule 10.01, and any Permitted Refinancings thereofrenewals, extensions, refinancings and modifications (but not increases) thereof with financial covenants no more restrictive than those existing on the Closing Date, including Debt with respect to the ABS Facility subject to the Intercreditor Agreement, not to exceed $225,000,000 in the aggregate; provided that no US Borrower or any Domestic Subsidiary other than the aggregate principal amount of all ABS Subsidiaries is liable for such Debt at any time outstanding shall not exceed CDN$1,000,000Debt;
(c) Debt which is subordinated accounts payable (for the deferred purchase price of Property or services) from time to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, time incurred in the case ordinary course of the Maximum Total Leverage Ratiobusiness which, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less if greater than the applicable Maximum Total Leverage Ratio set forth 60 days past due, are being contested in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, good faith by appropriate proceedings if reserves adequate under GAAP shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Periodhave been established therefor;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form it and substance satisfactory to Agent its Restricted Subsidiaries under Hedging Agreements which are for bona fide business purposes and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agentare not speculative;
(e) other Debt described on Schedule 7.1 as of it and its Domestic Subsidiaries; provided that (A) no Default or Event of Default (both before and after giving pro forma effect to the Closing incurrence of such Debt) exists and is continuing, (B) the maturity of such Debt is at least six (6) months after the Revolving Credit Maturity Date and the Term Loan Maturity Date, (C) the Weighted Average Life to Maturity of such Debt is greater than the number of years (calculated to the nearest one-twelfth) to the Revolving Credit Maturity Date and any Permitted Refinancing thereofthe Term Loan Maturity Date and (D) such Debt has terms substantially similar to those customary in high-yield facilities;
(f) Contingent Obligations arising with respect Debt for borrowed money meeting the qualifications set forth in Section 10.01(e) assumed by Holdings or one of its Restricted Subsidiaries, or of a Restricted Subsidiary of Holdings acquired, pursuant to customary indemnification obligations in favor an acquisition or merger permitted pursuant to the terms of purchasers in connection with dispositions permitted under this Agreement; provided that up to $100,000,000 of such Debt outstanding at any time does not need to meet the qualifications of Section 7.510.01(e)(B), (C) and (D);
(g) Debt arising from the honoring evidenced by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, Capital Lease Obligations and Purchase Money Indebtedness; provided that such Debt is extinguished within two in no event shall the aggregate principal amount of Capital Lease Obligations and Purchase Money Indebtedness permitted by this clause (2g) Business Days of notice to Borrower or the relevant Subsidiary of its incurrenceexceed $30,000,000 at any time outstanding;
(h) Debt incurred in connection with the financing of insurance premiums respect to surety bonds, appeal bonds or customs bonds required in the ordinary course of businessbusiness or in connection with the enforcement of rights or claims of Holdings or any of its Restricted Subsidiaries or in connection with judgments that do not result in a Default or an Event of Default, provided that the aggregate outstanding amount of all cash surety bonds, appeal bonds and custom bonds permitted by this clause (h) shall not at any time exceed $25,000,000;
(i) guaranties by Borrower of the Debt of any Loan Party Foreign Subsidiary used for such Foreign Subsidiary’s and/or its Foreign Subsidiaries’ working capital and general business purposes not to exceed $100,000,000; provided that is a Wholly-Owned Subsidiary no more than $50,000,000 in the aggregate of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt shall be Debt which is permitted under this Section 7.1other than Non-Recourse Foreign Debt;
(j) Debt arising from agreements of the any US Borrower owed to any Restricted Subsidiary and any Debt owed by any Restricted Subsidiary owed to any US Borrower or to any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;other Restricted Subsidiary; and
(k) other Debt of a Loan Party Subsidiary of not to exceed $25,000,000 in the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtaggregate.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Universal Compression Holdings Inc)
Debt. NotSuch Obligor will not, and not suffer or nor will it permit any Group Member of its Restricted Subsidiaries to, incur, create, incur, assume or suffer permit to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations under this Agreement the Notes and any other Indebtedness and any guaranty of or suretyship arrangement for the Notes or any other Loan DocumentsIndebtedness;
(b) Debt secured by Liens permitted by Section 7.2(d)(including unfunded commitments) existing on the Effective Date which is disclosed in Schedule 9.01, and any Permitted Refinancings thereof; provided that renewals, extensions, refinancings and modifications (but not increases) thereof with financial covenants no more restrictive than those existing on the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000Effective Date;
(c) accounts payable (for the deferred purchase price of Property or services) from time to time incurred in the ordinary course of business which, if greater than 90 days past due, (i) are being contested in good faith by appropriate proceedings if reserves adequate under GAAP shall have been established therefor or (ii) would not exceed $5,000,000 in the aggregate outstanding at any time;
(d) Debt under Hedging Agreements which is subordinated to are for bona fide business purposes and are not speculative;
(e) other Debt of EXLP, the Obligations under this Agreement Borrower and the other Loan Documents, any Significant Domestic Subsidiaries; provided that (i) the holder(s) no Default or Event of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms Default exists and conditions satisfactory to Agent is continuing before and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving pro forma effect to the incurrence of such Debt, (ii) the maturity of such Debt is at least six (6) months after the Revolving Credit Maturity Date and the application of the proceeds thereofTerm Loan Maturity Date, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect Weighted Average Life to Maturity of such Debt is greater than the number of years (calculated to the nearest one-twelfth) from the date of incurrence of such Debt to the Revolving Credit Maturity Date and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
Term Loan Maturity Date and (div) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall either (A) has terms substantially similar to those customary in high-yield debt offerings or (B) does not contain any financial covenants more restrictive than those contained in Section 9.10 or any other covenants or events of default that, taken as a whole, would be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereofmore restrictive than those contained herein;
(f) Contingent Debt evidenced by Capital Lease Obligations arising with respect and Purchase Money Indebtedness; provided that in no event shall the aggregate principal amount of Capital Lease Obligations and Purchase Money Indebtedness permitted by this clause (f) exceed an amount equal to customary indemnification obligations in favor the greater of purchasers in connection with dispositions permitted under Section 7.5(i) $27,500,000 and (ii) five percent (5%) of the Maximum Facility Amount;
(g) Debt arising from the honoring by a bank with respect to surety bonds, appeal bonds or other financial institution of a check, draft or similar instrument drawn against insufficient funds customs bonds required in the ordinary course of business, provided that such Debt is extinguished within two (2) Business Days business or in connection with the enforcement of notice to Borrower rights or the relevant Subsidiary claims of EXLP or any of its incurrenceRestricted Subsidiaries or in connection with judgments that do not result in a Default or an Event of Default;
(h) Debt incurred in connection with for borrowed money assumed by EXLP or one of its Restricted Subsidiaries, or of a Restricted Subsidiary of EXLP acquired, pursuant to an acquisition or merger permitted pursuant to the financing terms of insurance premiums in this Agreement other than from Holdings and its Subsidiaries; provided that (i) no Default or Event of Default shall have occurred and be continuing and (ii) the ordinary course aggregate amount of businesssuch Debt does not exceed the greater of (A) $30,000,000 and (B) seven and one-half percent (7.5%) of Consolidated Net Tangible Assets;
(i) guaranties Debt for borrowed money assumed by Borrower EXLP or one of the Debt its Restricted Subsidiaries, or of any Loan Party that is a Wholly-Owned Restricted Subsidiary of Borrower EXLP acquired, pursuant to an asset acquisition from Holdings or guaranties by any Subsidiary thereof one of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1its Subsidiaries (other than EXLP and its Subsidiaries);
(j) other Debt arising from agreements of not to exceed $25,000,000 in the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreementaggregate;
(k) Debt of a Loan Party Subsidiary EXLP or any of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower its Restricted Subsidiaries owed to EXLP or a Subsidiary any of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereofits Restricted Subsidiaries; provided that, (i) that such Debt (x) was not incurred shall be unsecured and, in connection with or in anticipation the case of such Permitted Acquisition and (y) Debt that is owed to a Restricted Subsidiary that is not secured by any Lien created an Obligor, subordinated to the Indebtedness on terms substantially similar to the subordination provisions set forth in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any timeGuaranty Agreement; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount Non-Recourse Foreign Debt of all any Foreign Subsidiary used for such Permitted Seller Debt does not exceed CDN$2,000,000 at any time Foreign Subsidiary’s and/or its Foreign Subsidiaries’ working capital and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtgeneral business purposes.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Exterran Partners, L.P.)
Debt. NotNo Borrower shall, and not suffer or nor permit any Group Member the Parent to, create, incur, assume or suffer otherwise become or remain directly or indirectly liable with respect to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations under this Agreement and the other Loan DocumentsObligations;
(b) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case form of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums overdrafts in the ordinary course of business;
(c) (i) guaranties Debt incurred by any Borrower to finance Capital Expenditures and (ii) Capital Lease obligations of any Borrower;
(d) Debt in respect of Accommodation Obligations permitted under Section 7.12;
(e) Debt of the Parent to ATI in connection with any advances made pursuant to Section 7.11(b);
(f) Debt in respect of Hedge Agreements and Foreign Currency Exchange Contracts entered into in the ordinary course of business and not for speculative purposes;
(g) intercompany Debt among the Borrowers;
(h) Permitted Existing Debt and refinancings, renewals or extensions thereof so long as (A) no Default or Event of Default exists or would be caused thereby, (B) the principal amount of any such Permitted Existing Debt is not increased (other than by an amount equal to the reasonable amount of fees and expenses payable in connection with such refinancing, renewal or extension); (C) the maturity date thereof is not accelerated as a result of any such refinancing, renewal or extension and (D) no such refinancing, renewal or extension would be otherwise detrimental in any material respect to the rights of or benefits to the Borrowers, the Agent or the Lenders;
(i) Debt of any Loan Party Person assumed in connection with an Acquisition of such Person permitted under Sections 7.11(i) or 7.16(a) if such Person becomes a Borrower after the date hereof; provided, that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1exists at the time such Person becomes a Borrower and was not created in anticipation of such acquisition;
(j) Debt arising from agreements consisting of the (A) unsecured deferred payment obligations of a Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of owing to sellers in permitted Acquisitions and (B) customary purchase price or similar obligations (including adjustments, earn-outs), in each case entered into indemnification obligations and similar items of the Borrowers in connection with Permitted permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreementand asset sales;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any timeAT Sourcing Obligation; and
(l) Permitted Seller Debt; provided that other unsecured Debt of the Credit Parties (i) consisting of uncommitted letter of credit facilities for the issuance of letters of credit with an aggregate outstanding principal maximum face amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 exceeding $25,000,000 at any time and (yii) no Group Member consisting of other than unsecured Debt not exceeding in the Borrower will be obligated in respect aggregate a principal amount of Permitted Seller Debt$25,000,000 at any one time outstanding.
Appears in 1 contract
Debt. Not, and The Borrower will not suffer or permit any Group Member toincur, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesand will not permit any Subsidiary to, incur, create, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan DocumentsIndebtedness;
(b) Debt secured accounts payable and accrued expenses, liabilities or other obligations to pay the deferred purchase price of Property or services, from time to time incurred in the ordinary course of business which are not greater than sixty (60) days past the date of invoice or delinquent or which are being contested in good faith by Liens permitted by Section 7.2(d), appropriate action and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000for which adequate reserves have been maintained in accordance with GAAP;
(c) Debt which is subordinated to the Obligations under this Agreement and the Capital Leases or other Loan Documents, provided that equipment financing arrangements (i) incurred by the holder(s) Borrower or any Non-Logistics Subsidiary Guarantor for mobile excavation equipment, automobiles, trucks, rental equipment or other equipment or personal Property which may be located on the Sand Properties for purposes of such Debt enter into a subordination agreement with Agent on behalf of excavation or other similar uses, not to exceed $10,000,000 in the Lender on terms aggregate at any one time outstanding and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) incurred by any Logistics Subsidiary Guarantor for automobiles, trucks, rental equipment or other equipment or personal Property used for the purpose of transportation and logistics, not to exceed $25,000,000 in the aggregate at any one time outstanding;
(d) Debt associated with bonds or surety obligations required by Governmental Requirements in connection with the operation of the Sand Properties in the ordinary course of business;
(e) endorsements of negotiable instruments for collection in the ordinary course of business;
(f) subject to compliance with Section 9.02, Debt incurred by the Borrower and its Subsidiaries shall be or any Non-Logistics Subsidiary Guarantor under the Revolving Credit Agreement in compliance, on a Pro Forma Basis an aggregate principal amount not to exceed $40,000,000 at any time outstanding; provided that after giving pro forma effect to the incurrence of such Debt and Debt, the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Consolidated Leverage Ratio as 0.25 less than of the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for last day of the most recently ended Computation recent Reference Period for which financial statements are available (and disregarding assuming that such Debt was incurred on the qualifications last day of such Reference Period) is less than 3.50:1.00 (in Section 7.13 that limit the applicability event the last day of the financial covenants therein to Computation Periods ending such Reference Period is on or before September 30, 2018) or 3.00:1.00 (in the event the last day of such Reference Period is after March 31September 30, 20132018), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such in each case any Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note type described in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
clauses (f) Contingent Obligations arising with and (g) of the definition thereof in respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5the foregoing;
(g) Debt of MAALT Specialized Bulk incurred under any working capital facility not to exceed in the aggregate at any time outstanding an amount equal to $1,000,000;
(h) Debt and obligations owing under Swap Agreements to the extent permitted under Section 9.19;
(i) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, provided however, that such Debt Indebtedness is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(hj) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the unsecured Debt of any Loan Party assumed or incurred in connection with any Permitted Acquisition which is subordinated to the Indebtedness; provided that is a Wholly-Owned Subsidiary (A) the subordination provisions of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
are reasonably satisfactory in all respects to the Administrative Agent and the Required Lenders, (jB) the terms of such Debt arising from agreements shall not provide for any maturity, amortization, sinking fund payment, mandatory redemption or other required repayment or repurchase of such Indebtedness (other than any required offer to repay or repurchase (x) with asset sale proceeds pursuant to customary arrangements providing that the Borrower or any such other Loan Party Subsidiary Party, as the case may be, (in lieu of making such offer) repay Indebtedness under this Agreement or (y) pursuant to “change of control” provisions that are no more restrictive than the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outsanalogous provisions contained in this Agreement), in each case entered into prior to six months after the Maturity Date, (C) the covenants and events of default relating to such Debt shall be less restrictive than those contained in connection with Permitted Acquisitions or this Agreement and (D) the disposition aggregate principal amount of such Debt shall not exceed in the aggregate at any business, assets or Stock permitted by this Agreementtime outstanding an amount equal to $5,000,000;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding existing on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary hereof and set forth in Schedule 9.03 and extensions, renewals and replacements of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation and any refinancings, modifications, renewals and extensions of any such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does shall not be increased from that amount outstanding at the time of such refinancing, renewal or extension, (ii) the maturity of such Debt shall not be shortened and (iii) the terms relating to collateral (if any) and subordination (if any) of any such refinancing, modification, renewing or extending Debt, and of any agreement entered into and of any instrument issued in connection therewith, are not less favorable in any material respect to the Loan Parties or the Lenders than the terms of any agreement or instrument governing the Debt being so refinanced, modified, renewed or extended; and
(l) other Debt in an aggregate amount not to exceed CDN$2,000,000 $1,000,000 at any time outstanding; provided that such Debt shall be unsecured; and
(m) unsecured Debt arising from intercompany loans and advances owed by a Loan Party to another Loan Party (y) no Group Member in either case, other than Parent) which is subordinated to the Borrower will Indebtedness on terms that are reasonably satisfactory in all respects to the Administrative Agent and the Required Lenders; provided that any such intercompany loans and advances shall be obligated subject to the limitations set forth in respect of Permitted Seller DebtSection 9.06(g).
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Vista Proppants & Logistics Inc.)
Debt. Not, and not suffer or permit any Group Member to, Not create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt secured by Liens permitted by Section 7.2(d11.2(d), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000US$100,000 or the Canadian Dollar Equivalent Amount thereof;
(c) unsecured Debt which is subordinated to owing by the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any other Loan Party that is a Wholly-Owned Subsidiary of Borrower or unsecured Debt of owing by any other Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of the Borrower; provided that all no Event of Default has occurred and is continuing and provided further that any such unsecured Debt (other than unsecured Debt of the Borrower owing to the Company) shall be evidenced by a global intercompany demand promissory note in the form and substance satisfactory to Agent of Exhibit H attached hereto and pledged and delivered to the Administrative Agent pursuant to the applicable Collateral Document Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner reasonably satisfactory to the Administrative Agent;
(d) unsecured Subordinated Debt to Persons (other than Debt owing by a Loan Party to any other Loan Party or any Affiliate thereof) in an amount at any time outstanding not to exceed US$1,500,000 or the Canadian Dollar Equivalent Amount thereof;
(e) Debt described on Schedule 7.1 Hedging Obligations approved by the Administrative Agent and incurred in favour of a Lender or an Affiliate thereof (other than any Hedging Agreement existing as of the Closing Date, which can be with any Person) for bona fide hedging purposes and any Permitted Refinancing thereofnot for speculation;
(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) [INTENTIONALLY DELETED];
(h) unsecured Contingent Obligations Liabilities arising with respect to customary indemnification obligations in favor favour of sellers in connection with Permitted Acquisitions and purchasers in connection with dispositions permitted under Section 7.511.4;
(gi) up to US$500,000 or the Canadian Dollar Equivalent Amount thereof at any time outstanding of Acquired Debt assumed in Permitted Acquisitions;
(j) unsecured Debt in respect of bid, performance or surety, appeal or similar bonds issued for the account of and completion guarantees provided by the Borrower in the ordinary course of business;
(k) Debt arising from the honoring honouring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business; provided, provided however, that such Debt is extinguished within two (2) five Business Days Day of notice to Borrower or the relevant Subsidiary of its incurrence;; and
(hl) Debt incurred arising in connection with the financing endorsement of insurance premiums instruments for deposit in the ordinary course of business;
(im) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt[INTENTIONALLY DELETED].
Appears in 1 contract
Debt. Not, and not suffer Neither the Parent Guarantor nor any Subsidiary shall incur or permit any Group Member to, create, incur, assume or suffer to exist maintain any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiaries:
other than: (a) Obligations under this Agreement and the other Loan Documents;
Obligations; (b) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereofdescribed on SCHEDULE 6.9; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Capital Leases of Equipment, secured Debt which is subordinated incurred to the Obligations under this Agreement purchase Equipment or Real Estate and the other Loan Documents, Debt incurred to finance insurance policy premiums provided that (i) Liens securing the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior same attach only to the incurrence thereofapplicable Equipment, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to Real Estate or insurance policy acquired by the incurrence of such Debt and the application of the proceeds thereofDebt, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt (including Capital Leases) outstanding does not exceed CDN$2,000,000 $20,000,000 at any time; and
(ld) Permitted Seller DebtDebt evidencing a refunding, renewal or extension of the Debt described on SCHEDULE 6.9; provided that (i) the aggregate outstanding principal amount thereof is not increased, (ii) the Liens, if any, securing such refunded, renewed or extended Debt do not attach to any assets in addition to those assets, if any, securing the Debt to be refunded, renewed or extended, (iii) no Person that is not an obligor or guarantor of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time as of the Closing Date shall become an obligor or guarantor thereof, and (yiv) the terms of such refunding, renewal or extension are no Group Member less favorable to the Parent Guarantor and its Subsidiaries, the Agent or the Lenders than the original Debt; (e) Debt incurred to refinance the Revolving Loans made on account of the Fixed Assets component of the Borrowing Base on such terms and conditions and in such amount as shall be acceptable to the Agent (it is understood and agreed that, upon payment of amounts required under SECTION 3.2, the Agent shall release its lien on any Fixed Assets so refinanced); (f) Debt of the Parent Guarantor that is subordinated to the Obligations on such terms and conditions (including subordination terms) and in such amount as shall be acceptable to the Majority Lenders, provided that in any event no payments other than current interest payments (so long as no standstill is in effect) in an amount acceptable to the Majority Lenders shall be made in respect of such Debt until the date six (6) months following the Stated Termination Date; and (g) so long as no Default or Event of Default has occurred and is continuing, loans from a Borrower Party to another Borrower Party (other than the Parent Guarantor) and the Borrower will be obligated Parties (other than the Parent Guarantor) may otherwise have "due to / due from" transactions among themselves in respect the ordinary course of Permitted Seller Debtbusiness to facilitate the payment of accounts payables of such Borrower Parties. The Parent Guarantor shall not enter into any amendment or modification of the documents evidencing the Debt permitted under clause (f) above that is in any manner adverse to the Parent Guarantor, any Subsidiary, the Agent or any Lender.
Appears in 1 contract
Samples: Credit Agreement (Andrx Corp /De/)
Debt. Not, and The Borrower will not suffer or permit any Group Member to, create, incur, assume or suffer to exist exist, or permit any DebtSubsidiary to create, except for incur, assume or suffer to exist, any Debt other than the following Debt of the Borrower and/or Loan Party Subsidiariesfollowing:
(a) Obligations Debt under this Agreement and the other Loan Credit Documents;
(b) Debt secured by Liens permitted by Section 7.2(d)existing on the date of this Agreement and described in Schedule 6.02, including renewals and any Permitted Refinancings thereof; provided that refinancings of such Debt, so long as the aggregate principal amount of all such Debt at thereof is not increased (other than to pay any time outstanding shall not exceed CDN$1,000,000associated premiums, fees and expenses);
(c) Debt which is subordinated under one or more Interest Rate Contract or Hydrocarbon Hedge Agreement (provided that the parties to this Agreement hereby agree that the obligations of the Borrower to the Obligations under this Banks in respect of any Interest Rate Contract or Hydrocarbon Hedge Agreement and are secured by the other Loan Security Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereofbut only, with the financial covenants set forth in Section 7.13 (butrespect to each such Bank, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio if and so long as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Periodsuch Bank remains a Bank), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt in respect of Borrower to any Loan Party that is a Wholly-Owned Subsidiary endorsement of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums negotiable instruments in the ordinary course of business;
(e) Debt between the Borrower and any Subsidiary or between Subsidiaries, provided that (i) guaranties by Borrower such Debt is noted on the books and records of the Debt Borrower and its Subsidiaries and (ii) in the case of any Loan Party Debt owed by the Borrower to any Subsidiary that is not a Guarantor, such Debt is subordinated to the Obligations of the Borrower under the Credit Documents on terms and conditions, and pursuant to documentation, in form and substance satisfactory to the Administrative Agent in its sole reasonable discretion;
(f) Debt in respect of Capital Leases and Debt secured by Liens permitted by Section 6.01(d) not exceeding $70,000,000 in aggregate amount equivalent to principal at any time outstanding;
(g) [Intentionally Omitted];
(h) if any lease pursuant to the Xxxxxx Lease Documents is treated under GAAP as a Capital Lease, then, any such Debt which may be attributable to the Xxxxxx Lease Documents;
(i) unsecured Debt in addition to Debt otherwise permitted herein, not exceeding $30,000,000 in aggregate principal amount at any time outstanding, provided that if such Debt is issued or incurred on or after the Sixth Amendment Effective Date, such Debt has been issued or incurred by the Borrower or a Subsidiary that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1Guarantor;
(j) Debt arising from agreements under the Note Agreement in an aggregate principal amount not to exceed $480,000,000 (not including the amount of any PIK Notes) as such amount shall be reduced by the scheduled amortization repayments of principal; and
(k) unsecured Funded Debt of the Borrower and/or a Finance Entity and/or any unsecured guaranty by the Borrower or any Guarantor of such Funded Debt of the Borrower or any Loan Party Subsidiary Affiliate of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller DebtBorrower; provided that (i) the aggregate Borrower is in compliance with Section 6.14 immediately after giving effect to the incurrence of any such Funded Debt or guaranty determined based upon the outstanding principal amount of all Funded Debt of the Borrower and its Subsidiaries on a Consolidated basis immediately after giving effect to such Permitted Seller incurrence, EBITDA for the four fiscal quarters most recently ended on or before the date of such incurrence and the maximum Leverage Ratio allowed as of the end of the fiscal quarter most recently ended on or prior to the date of such incurrence (and in the case of any guaranty of Funded Debt of the Borrower or any other Affiliate of the Borrower, the aggregate amount of such Funded Debt so guaranteed shall be “Funded Debt” of the Borrower for purposes of calculating the Leverage Ratio), (ii) such Funded Debt does not exceed CDN$2,000,000 at impose any time financial or other “maintenance” covenants on the Borrower or any of the Subsidiaries that are more onerous than the covenants set forth in this Agreement, (iii) such Funded Debt shall not require any scheduled payment on account of principal (whether by redemption, purchase, retirement, defeasance, set-off or otherwise) prior to the Termination Date and (yiv) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtsuch Funded Debt shall contain terms and conditions that are customary for such transactions.
Appears in 1 contract
Debt. NotNo Credit Party shall, and not suffer or nor shall it permit any Group Member of its Subsidiaries to, create, assume, incur, assume or suffer to exist exist, or in any Debtmanner become liable, except for directly, indirectly, or contingently in respect of, any Debt other than the following Debt of (collectively, the Borrower and/or Loan Party Subsidiaries:“Permitted Debt”):
(a) Obligations under this Agreement and the other Loan DocumentsObligations;
(b) intercompany Debt secured incurred in the ordinary course of business owed by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereofCredit Party to any other Credit Party; provided that the aggregate principal amount of all that, if applicable, such Debt at any time outstanding shall not exceed CDN$1,000,000as an investment is also permitted in Section 6.3;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the form of accounts payable to trade creditors for goods or services and current operating liabilities (other than for borrowed money) which in each case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less are not more than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period)90 days past due, in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds incurred in the ordinary course of business, as presently conducted, unless contested in good faith and by appropriate proceedings;
(d) (i) purchase money indebtedness and Capital Leases in effect on the Effective Date and set forth in Schedule 6.1 and (ii) such other purchase money indebtedness or Capital Leases incurred after the Effective Date; provided that that, the aggregate outstanding principal amount of such purchase money indebtedness and Capital Leases incurred after the Effective Date shall not exceed $5,000,000.00;
(e) Debt is extinguished within two in the form of Qualified Equity Interests;
(2f) Business Days Debt in respect of notice to Borrower or the relevant Subsidiary Hedging Arrangements;
(g) letters of its incurrencecredit issued by Xxxxx Fargo Bank, National Association;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower pursuant to one or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from more loan agreements of between the Borrower or any Loan Party Subsidiary and CARBO Ceramics (Eurasia) LLC, a company duly organized and existing under the laws of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller DebtRussia; provided that (i) such Debt is unsecured, (ii) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 outstanding at any time shall not to exceed $6,000,000.00, and (yiii) no Group Member such Debt is subordinated to the Debt under this Agreement and the other than Credit Documents on terms reasonably acceptable to the Borrower will Administrative Agent; and
(i) without duplication, other unsecured subordinated Debt up to $25,000,000.00 in the aggregate principal amount outstanding at any time with the written consent of the Majority Lenders, such consent not to be obligated in respect of Permitted Seller Debtunreasonably withheld or delayed.
Appears in 1 contract
Debt. Not, and not suffer or permit any Group Member other Loan Party to, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Real Estate Debt, together with any Debt secured by Liens permitted by Section 7.2(dof any Centene Plaza Subsidiary (including Centene Plaza Debt), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt which at any one time outstanding shall when taken together with any Investments made pursuant to Section 11.9(a)(iv) does not exceed CDN$1,000,000an amount equal to 90% of the amount of the fair market value of the property securing such Real Estate Debt;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, unsecured; provided that (i) after giving effect thereto on a pro forma basis, the holder(sCompany and the other Loan Parties shall be in compliance with a Total Debt to EBITDA Ratio not greater than the applicable ratio set forth in Section 11.12.2 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Computation Period, (ii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing on the date of incurrence of such Debt enter into or could reasonably be expected to occur as a subordination agreement with Agent on behalf result thereof, (iii) the documents governing such Debt do not contain covenants (including quantitative covenants and financial covenants) which are, taken as a whole, more restrictive in any material respect than the covenants contained in this Agreement, (iv) the final maturity of such Debt shall be no earlier than ninety days after the Latest Maturity Date and (v) the weighted average life to maturity of such Debt shall not be shorter than the weighted average life to maturity of any Loans or Commitments outstanding as of the Lender time of the issuance thereof; provided that clauses (iii), (iv) and (v) shall not apply to any bridge facility on customary terms and conditions satisfactory if the long-term indebtedness that such bridge facility is to Agent be converted into satisfies such clauses.
(d) Subordinated Debt which is unsecured; provided that (i) after giving effect thereto on a pro forma basis, the Company and the Lender prior other Loan Parties shall be in compliance with a Total Debt to EBITDA Ratio not greater than the applicable ratio set forth in Section 11.12.2 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Computation Period, (ii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing on the date of incurrence of such Debt or could reasonably be expected to occur as a result thereof, (iii) the documents governing such Subordinated Debt shall not contain covenants (including quantitative covenants and financial covenants) which are more restrictive in any material respect, taken as a whole, than the covenants contained in this Agreement, (iv) the final maturity of such Subordinated Debt shall be no earlier than ninety days after the Latest Maturity Date and (v) the weighted average life to maturity of such Subordinated Debt shall not be shorter than the weighted average life to maturity of any Loans or Commitments outstanding as of the time of the issuance thereof;
(e) Hedging Obligations incurred for bona fide hedging purposes and not for speculation and Debt incurred in the ordinary course of business in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(f) (i) the 2021 Senior Notes, the 2022 Senior Notes, the 2024 Senior Notes and the 2025 Senior Notes outstanding on the Restatement Effective Date, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt New Senior Notes and the application of Bridge Loans; provided that the proceeds thereof, with the financial covenants set forth in Section 7.13 aggregate principal amount at any one time outstanding under this clause (but, ii) shall not exceed $3,750,000,000 in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013)aggregate, and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof11.1;
(fg) Contingent Debt under Capital Leases for capital assets or purchase money Debt whose aggregate cost if purchased would not exceed 1.50% of Consolidated Total Assets at the time of incurrence;
(h) Guarantee Obligations of the Company which do not exceed $300,000,000 in the aggregate at any time outstanding;
(i) Guarantee Obligations arising with respect to customary indemnification obligations in favor of sellers, adjustment of purchase price or similar obligations or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of the Company or any Loan Party pursuant to such agreements, in each case in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with dispositions permitted under Section 7.511.4;
(gj) Debt Guarantee Obligations arising from the honoring with respect to guaranties (which may include payment obligations) provided by a bank or other financial institution Loan Party on behalf 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) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums another Loan Party in the ordinary course of business;
(k) (i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties to the Company which results from an Investment made by any Subsidiary thereof of the Company in such Loan Party pursuant to, and permitted by, Section 11.9(b) and (ii) Debt of Borrower any Loan Party to another Loan Party which results from an Investment made by such Loan Party in each case so long as such Debt is other Loan Party pursuant to, and permitted under this by Section 7.111.9(a)(i);
(jl) Debt arising from agreements in respect of Outside Letters of Credit in an aggregate principal amount not to exceed $300,000,000;
(m) Debt of the Borrower Company or any other Loan Party (excluding Guarantee Obligations) in an aggregate amount at any one time outstanding not to exceed 3.00% of Consolidated Total Assets at the time of incurrence;
(n) assumed Debt of any Person that becomes a Loan Party after the Restatement Effective Date; provided that (i) on a pro forma basis after giving effect to the incurrence of such Debt, the Company will be in compliance with the financial covenant in Section 11.12.2 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Computation Period, (ii) such Debt exists at the time such Person becomes a Loan Party and is not created in contemplation or in connection with such Person becoming a Loan Party, (iii) neither the Company nor any Loan Party that was not an obligor with respect to such Debt prior to such Person becoming a Loan Party shall become an obligor for such Debt; and (iv) such Debt shall not be secured by a Lien on any property of the Company or any Loan Party Subsidiary that did not secure such Debt prior to such Person becoming a Loan Party (except for proceeds and the products thereof and, in the case of multiple financings of equipment provided by any lender, other equipment financed by such lender);
(o) Debt of any Loan Party (other than any letter of credit) (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of surety bonds, performance bonds or similar instruments to support any of the Borrower providing for indemnificationforegoing items;
(p) Debt of any Loan Party (other than any letter of credit, adjustment but including obligations in respect of bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Debt) incurred by such Loan Party in respect of workers compensation claims, unemployment insurance (including premiums related thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits;
(q) Debt representing the deferred purchase price of property (including intellectual property) or similar obligations (services, including earn-outs)out obligations, in each case entered into purchase price adjustments, escrow arrangements or other arrangements representing deferred payments incurred in connection with Permitted Acquisitions any Acquisition permitted or the disposition of any business, assets or Stock permitted by this Agreement;consented to hereunder; and
(kr) Debt provided that no Unmatured Event of a Default or Event of Default shall have occurred and is continuing or would result therefrom, the incurrence or issuance by the Company or any other Loan Party Subsidiary of the Borrower issued and outstanding on the date on Debt which such Subsidiary was acquired by the Borrower serves to extend, replace, refund, renew, defease or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition refinance any Debt incurred as permitted under Section 7.11(gclauses (f), together with (g), (m) and (n) of this Section 11.1 or any Permitted Debt issued to so extend, replace, refund, renew, defease or refinance such Debt (“Refinancing thereofDebt”); provided provided, however, that, (i) the final maturity date of such Refinancing Debt shall be no earlier than ninety days after the Latest Maturity Date, (xii) was the weighted average life to maturity of such Refinancing Debt shall not be shorter than the weighted average life to maturity of the Debt being extended, replaced, refunded, renewed, defeased or refinanced, (iii) to the extent such Refinancing Debt extends, replaces, refunds, renews, defeases or refinances Debt subordinated or pari passu to the Obligations, such Refinancing Debt is subordinated or pari passu to the Obligations at least to the same extent (as determined in good faith by the board of directors of the Company) as the Debt being extended, replaced, refunded, renewed, defeased or refinanced and (iv) such Refinancing Debt shall be in an amount not greater than the amount of the Debt being extended, replaced, refunded, renewed, defeased or refinanced plus an additional amount incurred to pay reasonable premiums (including tender premiums) outstanding and unpaid interest and reasonable fees and expenses incurred in connection with therewith; provided, further, however, that to the extent that any Debt incurred under clauses (g) or in anticipation of such Permitted Acquisition and (ym) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and refinanced pursuant to this clause (ii) r), then the aggregate outstanding principal amount of all such Refinancing Debt does shall be deemed to utilize the related basket under the applicable clause on a dollar-for-dollar basis (it being understood that an Unmatured Event of Default or Event of Default shall be deemed not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided to have occurred solely to the extent that (i) the aggregate outstanding principal incurrence of such Refinancing Debt would cause the permitted amount of all under such Permitted Seller Debt does not exceed CDN$2,000,000 at any time Section to be exceeded and (y) no Group Member other than the Borrower will such excess shall be obligated in respect of Permitted Seller Debtpermitted hereunder).
Appears in 1 contract
Samples: Credit Agreement (Centene Corp)
Debt. Not, and not suffer or permit any Group Member other Loan Party to, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations under this Agreement and the other Loan DocumentsDocuments (including, for the avoidance of doubt, the 2019 Incremental Term Loans);
(b) Real Estate Debt, together with any Debt secured by Liens permitted by Section 7.2(dof any Centene Plaza Subsidiary (including Centene Plaza Debt), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt which at any one time outstanding shall when taken together with any Investments made pursuant to Section 11.9(a)(iv) does not exceed CDN$1,000,000an amount equal to 90% of the amount of the fair market value of the property securing such Real Estate Debt;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, unsecured; provided that (i) after giving effect thereto on a pro forma basis, the holder(sCompany and the other Loan Parties shall be in compliance with a Total Debt to EBITDA Ratio not greater than the applicable ratio set forth in Section 11.12.2 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Computation Period, (ii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing on the date of incurrence of such Debt enter into or could reasonably be expected to occur as a subordination agreement with Agent on behalf result thereof, (iii) the documents governing such Debt do not contain covenants (including quantitative covenants and financial covenants) which are, taken as a whole, more restrictive in any material respect than the covenants contained in this Agreement (other than covenants or other provisions (i) applicable only to periods after the Latest Maturity Date or (ii) made applicable to this Agreement), (iv) the final maturity of such Debt shall be no earlier than ninety days after the Latest Maturity Date and (v) the weighted average life to maturity of such Debt shall not be shorter than the weighted average life to maturity of any Loans or Commitments outstanding as of the Lender time of the issuance thereof; provided that clauses (iii), (iv) and (v) shall not apply to any bridge facility on customary terms and conditions satisfactory if the long-term indebtedness that such bridge facility is to Agent be converted into satisfies such clauses.
(d) Subordinated Debt which is unsecured; provided that (i) after giving effect thereto on a pro forma basis, the Company and the Lender prior other Loan Parties shall be in compliance with a Total Debt to EBITDA Ratio not greater than the applicable ratio set forth in Section 11.12.2 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Computation Period, (ii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing on the date of incurrence of such Debt or could reasonably be expected to occur as a result thereof, (iii) the documents governing such Subordinated Debt shall not contain covenants (including quantitative covenants and financial covenants) which are more restrictive in any material respect, taken as a whole, than the covenants contained in this Agreement (other than covenants or other provisions (i) applicable only to periods after the Latest Maturity Date or (ii) made applicable to this Agreement), (iv) the final maturity of such Subordinated Debt shall be no earlier than ninety days after the Latest Maturity Date and (v) the weighted average life to maturity of such Subordinated Debt shall not be shorter than the weighted average life to maturity of any Loans or Commitments outstanding as of the time of the issuance thereof;
(e) Hedging Obligations incurred for bona fide hedging purposes and not for speculation and Debt incurred in the ordinary course of business in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(f) (i) the 2021 Senior Notes, the 2022 Senior Notes, the 2024 Senior Notes, the 2025 Senior Notes and the 2026 Senior Notes outstanding on the 2019 Restatement Effective Date, (ii) the Borrower and its Subsidiaries shall be in complianceExisting Wellington Notes, on a Pro Forma Basis giving effect to the incurrence of such Debt New Senior Notes and the application of Bridge Loans; provided that the proceeds thereof, with the financial covenants set forth in Section 7.13 aggregate principal amount at any one time outstanding under this clause (but, ii) shall not exceed $8,350,000,000 in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013)aggregate, and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof11.1;
(fg) Contingent Debt under Capital Leases for capital assets or purchase money Debt whose aggregate cost if purchased would not exceed 1.50% of Consolidated Total Assets at the time of incurrence;
(h) Guarantee Obligations of the Company which do not exceed $500,000,000 in the aggregate at any time outstanding;
(i) Guarantee Obligations arising with respect to customary indemnification obligations in favor of sellers, adjustment of purchase price or similar obligations or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of the Company or any Loan Party pursuant to such agreements, in each case in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with dispositions permitted under Section 7.511.4;
(gj) Debt Guarantee Obligations arising from the honoring with respect to guaranties (which may include payment obligations) provided by a bank or other financial institution Loan Party on behalf 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) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums another Loan Party in the ordinary course of business;
(k) (i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties to the Company which results from an Investment made by any Subsidiary thereof of the Company in such Loan Party pursuant to, and permitted by, Section 11.9(b) and (ii) Debt of Borrower any Loan Party to another Loan Party which results from an Investment made by such Loan Party in each case so long as such Debt is other Loan Party pursuant to, and permitted under this by Section 7.111.9(a)(i);
(jl) Debt arising from agreements in respect of Outside Letters of Credit in an aggregate principal amount not to exceed $500,000,000;
(m) Debt of the Borrower Company or any other Loan Party (excluding Guarantee Obligations) in an aggregate amount at any one time outstanding not to exceed 3.00% of Consolidated Total Assets at the time of incurrence;
(n) assumed Debt of any Person that becomes a Loan Party after the 2019 Restatement Effective Date; provided that (i) on a pro forma basis after giving effect to the incurrence of such Debt, the Company will be in compliance with the financial covenant in Section 11.12.2 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Computation Period, (ii) such Debt exists at the time such Person becomes a Loan Party and is not created in contemplation or in connection with such Person becoming a Loan Party, (iii) neither the Company nor any Loan Party that was not an obligor with respect to such Debt prior to such Person becoming a Loan Party shall become an obligor for such Debt; and (iv) such Debt shall not be secured by a Lien on any property of the Company or any Loan Party Subsidiary that did not secure such Debt prior to such Person becoming a Loan Party (except for proceeds and the products thereof and, in the case of multiple financings of equipment provided by any lender, other equipment financed by such lender);
(o) Debt of any Loan Party (other than any letter of credit) (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of surety bonds, performance bonds or similar instruments to support any of the Borrower providing for indemnificationforegoing items;
(p) Debt of any Loan Party (other than any letter of credit, adjustment but including obligations in respect of bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Debt) incurred by such Loan Party in respect of workers compensation claims, unemployment insurance (including premiums related thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits;
(q) Debt representing the deferred purchase price of property (including intellectual property) or similar obligations (services, including earn-outs)out obligations, in each case entered into purchase price adjustments, escrow arrangements or other arrangements representing deferred payments incurred in connection with Permitted Acquisitions any Acquisition permitted or the disposition of any business, assets or Stock permitted by this Agreement;consented to hereunder; and
(kr) Debt provided that no Unmatured Event of a Default or Event of Default shall have occurred and is continuing or would result therefrom, the incurrence or issuance by the Company or any other Loan Party Subsidiary of the Borrower issued and outstanding on the date on Debt which such Subsidiary was acquired by the Borrower serves to extend, replace, refund, renew, defease or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition refinance any Debt incurred as permitted under Section 7.11(gclauses (f), together with (g), (m) and (n) of this Section 11.1 or any Permitted Debt issued to so extend, replace, refund, renew, defease or refinance such Debt (“Refinancing thereofDebt”); provided provided, however, that, (i) the final maturity date of such Refinancing Debt shall be no earlier than ninety days after the Latest Maturity Date, (xii) was the weighted average life to maturity of such Refinancing Debt shall not be shorter than the weighted average life to maturity of the Debt being extended, replaced, refunded, renewed, defeased or refinanced, (iii) to the extent such Refinancing Debt extends, replaces, refunds, renews, defeases or refinances Debt subordinated or pari passu to the Obligations, such Refinancing Debt is subordinated or pari passu to the Obligations at least to the same extent (as determined in good faith by the board of directors of the Company) as the Debt being extended, replaced, refunded, renewed, defeased or refinanced and (iv) such Refinancing Debt shall be in an amount not greater than the amount of the Debt being extended, replaced, refunded, renewed, defeased or refinanced plus an additional amount incurred to pay reasonable premiums (including tender premiums) outstanding and unpaid interest and reasonable fees and expenses incurred in connection with therewith; provided, further, however, that to the extent that any Debt incurred under clauses (g) or in anticipation of such Permitted Acquisition and (ym) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and refinanced pursuant to this clause (ii) r), then the aggregate outstanding principal amount of all such Refinancing Debt does shall be deemed to utilize the related basket under the applicable clause on a dollar-for-dollar basis (it being understood that an Unmatured Event of Default or Event of Default shall be deemed not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided to have occurred solely to the extent that (i) the aggregate outstanding principal incurrence of such Refinancing Debt would cause the permitted amount of all under such Permitted Seller Debt does not exceed CDN$2,000,000 at any time Section to be exceeded and (y) no Group Member other than the Borrower will such excess shall be obligated in respect of Permitted Seller Debtpermitted hereunder).
Appears in 1 contract
Samples: Credit Agreement (Centene Corp)
Debt. Not, and The Borrower will not suffer or permit any Group Member to, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesother than:
(a) Obligations Debt arising under this Agreement Agreement, the Notes and the other Loan Documents;
(b) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereof; provided that in favor of the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000Borrower’s Custodian;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documentsin respect of judgments or awards that do not constitute an Event of Default, provided that (i) the holder(s) including any unsecured performance bond in respect of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on judgments or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;awards; and
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt portfolio investments and investment techniques 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 the Borrower’s business to the extent that such Debt is extinguished within two (2) Business Days of notice to Borrower or permissible under the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection Investment Company Act and consistent with the financing of insurance premiums Borrower’s Investment Policies and Restrictions, including, without limitation, any Debt arising under reverse repurchase agreements and derivative transactions; provided that in no event shall the Borrower (i) enter into or utilize Financial Contracts other than in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower business for hedging or guaranties by any Subsidiary thereof of the Debt of Borrower investment purposes in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower accordance with its Investment Policies and Restrictions or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) issue or be or remain liable for or have outstanding any “senior security” (as defined in the aggregate outstanding principal amount Investment Company Act), except that the Borrower may borrow from the Banks pursuant to this Agreement and may have outstanding, prior to the redemption of all such Debt does the Selected ARPS in accordance with the ARPS Redemption Schedule, the ARPS, and following the redemption of the Selected ARPS in accordance with the ARPS Redemption Schedule, the Remaining ARPS or any Replacement Equity Securities. The Borrower will not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time issue or have outstanding any preferred stock other than, prior to the redemption of the Selected ARPS in accordance with the ARPS Redemption Schedule, the ARPS, and (y) no Group Member other than following the Borrower will be obligated redemption of the Selected ARPS in respect of Permitted Seller Debtaccordance with the ARPS Redemption Schedule, the Remaining ARPS or any Replacement Equity Securities, and shall at all times comply in all material respects with the terms and conditions pursuant to which the ARPS or any Replacement Equity Securities were issued.
Appears in 1 contract
Debt. Not, and not suffer or permit any Group Member to, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiaries:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants 7.31.1 Except as set forth in the debt documents previously provided to RH which are listed in Section 7.13 (but, in the case 7.31 of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 GH Disclosure Schedules or equipment capital leases with total aggregate payments outstanding of less than One Million Dollars ($1,000,000) (the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period“Existing GH Debt Documents”), in each case for no GH Entity is subject to any Lien (other than Permitted Liens) relating to the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability existing Indebtedness of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and GH Entities (iiithe “Existing GH Debt”) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower pursuant to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligationstrust indenture, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt arising from the honoring by a bank loan agreement 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) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case agreement entered into in connection with Permitted Acquisitions the Existing GH Debt. All Existing GH Debt is listed in Section 7.31 of the GH Disclosure Schedules.
7.31.2 The GH Entities are in compliance in all material respects with the terms and conditions of any Existing GH Debt Documents, and to the Knowledge of GH, no event or condition exists that constitutes an event of default under any such documents or that, with the passing of time or the disposition giving of notice, or both, would reasonably constitute an event of default under any such documents.
7.31.3 To the Knowledge of GH, there is no event or condition that has occurred or exists which would reasonably be expected to adversely and materially affect the status of the interest payable on any Existing GH Debt from being excluded from gross income for federal income tax purposes, if applicable. No inquiry from the IRS or action is pending or, to the Knowledge of GH, threatened which challenges the status of the interest payable on any Existing GH Debt from being excluded from gross income for federal income tax purposes, if applicable.
7.31.4 Any arbitrage rebate payments required to be paid with respect to the Existing GH Debt under § 148(f) of the Code have been paid to the United States, in the manner, on the dates and in the amounts required by § 148(f) of the Code.
7.31.5 Except as set forth on Section 7.31.5 of the GH Disclosure Schedules, the execution of this Agreement and the consummation of the Transactions will not result in any breach or contravention of, or give rise to a right of termination, cancellation, acceleration or to the loss of a benefit thereunder, or the creation of any businessclaim, assets liability or Stock permitted by this Agreement;
(k) Lien under the Existing GH Debt of a Loan Party Subsidiary of the Borrower issued Documents, and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at require consent from or notice to any time; and
(l) Permitted Seller Debt; provided other Person that (i) is party to the aggregate outstanding principal amount of all such Permitted Seller Existing GH Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller DebtDocuments.
Appears in 1 contract
Samples: Health System Agreement
Debt. Not, and not suffer or permit Neither the Borrower nor any Group Member toSubsidiary will incur, create, incur, assume or suffer permit to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) The Loans or other Obligations under this Agreement and or any guaranty of or suretyship arrangement for the Loans or other Loan DocumentsObligations;
(b) Debt secured by Liens permitted by Section 7.2(d)of the Borrower or any Subsidiary existing on the Closing Date which is reflected in the Financial Statements or is disclosed in Schedule 9.01, and any Permitted Refinancings renewals or extensions (but not increases) thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated accounts payable (for the deferred purchase price of Property or services) from time to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, time incurred in the case ordinary course of business which, if greater than 90 days past the Maximum Total Leverage Ratioinvoice or billing date, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth are being contested in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, good faith by appropriate proceedings if reserves adequate under GAAP shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Periodhave been established therefor;
(d) (i) capital leases, (ii) Equipment Leases, (iii) environmental facilities revenue bonds, and (iv) purchase money Debt which in each purchase money Debt case shall not exceed 100% of Borrower to any Loan Party that is a Wholly-Owned Subsidiary the lesser of Borrower or the total purchase price and the fair market value of the Property acquired as determined at the time of acquisition, provided all Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent incurred pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note this clause (d) shall be subordinated to the Obligations hereunder in a manner satisfactory to Agentnot exceed $15,000,000 per fiscal year;
(e) Subordinated Debt described on Schedule 7.1 so long as of the Closing Date, and any Permitted Refinancing thereofBorrower has delivered a Compliance Certificate concurrently with the issuance thereof demonstrating pro forma compliance with Article IX;
(f) Contingent Obligations arising with respect to customary indemnification obligations prepayments for services rendered in favor the ordinary course of purchasers business provided that no default exists in connection with dispositions permitted under Section 7.5delivery of the service for which any such prepayments were made;
(g) Debt arising from between and among the honoring by a bank or Borrower and/or any Guarantors (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) Business Days of notice to Borrower or the relevant Subsidiary of its incurrencethan Holdings);
(h) Debt incurred surety bonds and similar instruments of the nature and for the purposes described in connection with the financing of insurance premiums in the ordinary course of businessSchedule 7.02, item 1 or Schedule 7.21;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;Senior Unsecured Debt; and
(j) Debt arising from agreements so long as no Default has occurred and continuing, unsecured earn–out obligations of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of Guarantor payable to a Loan Party Subsidiary of the Borrower issued seller and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtan Expansion Expenditure.
Appears in 1 contract
Debt. NotIncur, and not suffer contract for, assume, or permit any Group Member toto remain outstanding, createindebtedness for borrowed money, incurinstallment obligations, assume or suffer obligations under capital leases, other than, with respect to exist any DebtBorrower only (1) unsecured trade debt incurred in the ordinary course of business, except for (2) indebtedness owing to the following Debt Bank, (3) indebtedness reflected in the latest financial statement of Borrower furnished to the Borrower and/or Loan Party Subsidiaries:
(a) Obligations under Bank prior to execution of this Agreement and that is not to be paid with proceeds of borrowings under the other Loan Documents;
(b) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereofCredit Facilities, (ii4) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 indebtedness outstanding as of the Closing Datedate hereof that has been disclosed to the Bank in writing on Schedule 6.2.C hereto and that is not to be paid with proceeds of borrowings under the Credit Facilities (provided, however, that in no event will Borrower allow the outstanding amounts owed to Cxxxxx Financial and any Permitted Refinancing thereof;
California United Bank to exceed amounts to be available under the Facility B (fso that such outstanding amounts owed to Cxxxxx Financial and California United Bank will be capable of being paid in full from amounts available under Facility B when Facility B is available pursuant to Section 4.3), (5) Contingent Obligations arising with respect capital lease obligations and obligations incurred to customary indemnification obligations in favor finance the purchase of purchasers in connection with dispositions permitted under Section 7.5;
equipment and related software secured by purchase money liens on such equipment and related software, (g6) Debt indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds or from the endorsement of instruments for collection in the ordinary course of Borrower’s or any subsidiary’s business, (7) indebtedness with respect to surety, appeal, indemnity, performance or other similar bonds in the ordinary course of business, provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred 8) reimbursement obligations in connection with the financing letters of insurance premiums in the ordinary course of business;
(i) guaranties credit that are secured by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary cash or cash equivalents and issued on behalf of Borrower or guaranties by a subsidiary thereof in an amount not to exceed $500,000 at any Subsidiary thereof of time outstanding, (9) the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
CUB Facility and the Cxxxxx Facility, (j10) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs)other unsecured indebtedness not exceeding, in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time , $100,000, and (y11) no Group Member any refinancings, refundings, renewals or extensions of any of the foregoing, other than the Borrower will be obligated CUB Facility and the Cxxxxx Facility, provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to accrued but unpaid interest plus the premium or other amount paid, and fees and expenses incurred, in respect connection with such refinancing and by an amount equal to any utilized commitments thereunder (all of the foregoing collectively referred to as “Permitted Seller DebtIndebtedness”).
Appears in 1 contract
Debt. NotCreate, and not incur, assume, or suffer to exist, or permit any Group Member to, Restricted Subsidiary to create, incur, assume assume, or suffer to exist (unless failure to so permit would constitute a breach of fiduciary duty), any Debt, except for the following except: Debt of the Borrower and/or Loan Party Subsidiaries:
Company under the Credit Documents, provided, that at no time shall (a) Obligations under this Debt arising from the Credit Agreement and the other Loan Documents;
exceed $150,000,000 or (b) Debt arising from the 1996 Master Lease Agreement exceed $300,000,000; Debt described in Schedule 4.2, but no renewals, extensions, or refinancings thereof; Accounts payable to trade creditors for goods or services which are not aged more than ninety (90) days from billing date incurred in the ordinary course of business and paid within the specified time, unless contested in good faith and by appropriate proceedings; Debt of any Restricted Subsidiary to the Company provided such Debt complies with any applicable requirements set forth in Section 4.8; Debt of the Company arising with respect to Company's commitment to provide funds to any Financed Franchisee or to any Financed Subsidiary so long as such commitment to provide funds complies with the requirements set forth in Section 4.8; Debt which constitutes indebtedness for borrowed money owed by a Financed Franchisee to a Person other than the Company (including, without limitation, any funding by landlords of leasehold improvements) which indebtedness is in existence on the date such Financed Franchisee becomes a Financed Subsidiary, and any renewal, extension or refinancing of such Debt, provided, that both before and after giving effect to such Financed Franchisee becoming a Financed Subsidiary no Default or Event of Default shall exist or be continuing, and provided further, that the outstanding principal amount of such Debt shall at no time exceed the principal amount of such Debt outstanding on the date such Financed Franchisee becomes a Financed Subsidiary; Debt which is secured by Liens permitted by of the type described in clauses (9) or (10) of Section 7.2(d), and any Permitted Refinancings thereof4.1; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documentsconstitutes Current Pay Subordinated Debt, provided provided, that (ia) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms both before and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of such Debt and the application no Default or Event of Default shall have occurred or be continuing, (b) if such Current Pay Subordinated Debt had been incurred as of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case last day of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the then most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability fiscal quarter of the financial covenants therein to Computation Periods ending on or Company, after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and no Default or Event of Default would have existed, (c) the application sum of the proceeds thereof, for aggregate principal amount of such Debt plus the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) aggregate principal amount of Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary the type permitted by clause (9) of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs)which, in each case entered into in connection with Permitted Acquisitions or case, is incurred after the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does Effective Date shall not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 $100,000,000 at any time and (yd) except in the case where such Subordinated Debt is issued in exchange for Preferred Stock, the net proceeds of such Debt shall only be used for capital expenditures, retirement of Debt not constituting Subordinated Debt and other general corporate purposes not inconsistent with the foregoing; Debt which constitutes Non-Current Pay Subordinated Debt, provided that (a) both before and after giving effect to the incurrence of any such Non- Current Pay Subordinated Debt no Group Member Default or Event of Default shall exist or be continuing (b) the sum of the aggregate principal amount of such Debt plus the aggregate principal amount of Debt of the type permitted by clause (8) of this Section which, in each case, is incurred after the Effective Date shall not exceed $100,000,000 at any time and (c) except in the case where such Subordinated Debt is issued in exchange for Preferred Stock, the net proceeds of such Debt shall only be used for capital expenditures, retirement of Debt not constituting Subordinated Debt and other than general corporate purposes not inconsistent with the Borrower will foregoing; Debt of the type permitted by Sections 4.4, 4.5, 4.8(1)(b), (c) and (d) and 4.9; Debt of the Company arising under the BWRE Guaranty, provided, that (a) the principal amount of indebtedness guaranteed by the BWRE Guaranty shall at no time exceed $7,350,000 and (b) so long as the BWRE Guaranty shall remain outstanding, (i) the only assets of BWRE shall be obligated the BWRE Parcels, those certain Land and Building Leases, each dated February 16, 1996, between Boston West, L.L.C., as tenant, and BWRE, as landlord, relating to the BWRE Parcels and all rights as landlord arising under such Land and Building Leases and (ii) Stores shall be operated on the BWRE Parcels; Debt incurred or assumed in respect connection with Investments and other acquisitions permitted under this Agreement, provided, that the aggregate principal amount of Permitted Seller Debtsuch Debt shall not exceed $25,000,000 at any one time outstanding; and Unsecured Debt not of the type described in the foregoing clauses (1) through (12) in an aggregate principal amount not to exceed at any one time outstanding Twenty-Five Million Dollars ($25,000,000), provided, that (i) before and after giving effect to the incurrence of such Debt no Default or Event of Default shall have occurred or be continuing and (ii) if such unsecured Debt had been incurred as of the last day of the then most recently ended fiscal quarter of the Company, after giving effect to the incurrence of such unsecured Debt no Default or Event of Default would have existed.
Appears in 1 contract
Debt. NotThe Borrower will not, and will not suffer permit any ---- Subsidiary to, incur or permit any Group Member to, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Debt evidenced by the Notes, the Short-Term Credit Facility Notes and Facility Letter of Credit Obligations under this Agreement and the other Loan Documentsnot in default;
(b) Debt secured by Liens permitted by Section 7.2(d), and of any Permitted Refinancings thereof; provided that Subsidiary to the aggregate principal amount of all such Debt at Borrower or any time outstanding shall not exceed CDN$1,000,000other Subsidiary;
(c) Debt which is subordinated to existing as of June 30, 1998 as reflected on financial statements delivered under Section 7.2(b) and refin- ancings thereof other than Debt that has been refinanced by the Obligations under this Agreement and proceeds of Loans or the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf proceeds of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation PeriodShort-Term Credit Facility;
(d) Debt endorsements in the ordinary course of Borrower to any Loan Party that is a Wholly-Owned Subsidiary business of Borrower or Debt negotiable instruments in the course of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agentcollection;
(e) Debt described on Schedule 7.1 of the Borrower or any Subsidiary repre- senting the portion of the purchase price of property acquired by the Borrower or such Subsidiary that is secured by Liens per- mitted by the provisions of Section 10.2(d); provided, however, -------- ------- that at no time may the aggregate principal amount of such Debt outstanding exceed fifteen percent (15%) of the Consolidated Net Worth of the borrower and its Subsidiaries as of the Closing Date, and any Permitted Refinancing thereofapplicable determination date;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;Debt evidenced by Senior Notes; and
(g) additional Debt arising from of the honoring by Borrower and Structured Securities of the Borrower and the Southern Union Trusts provided that after giving effect to the issuance thereof there shall exist no Default or Event of Default; and:
(i) the ratio of Consolidated Total Indebtedness to Consolidated total Capitaliza- tion shall be no greater than 0.70 to 1.00; (ii) the ratio of EBDIT to pro forma Cash Interest Expense shall be no less than 2.25 to 1.00; and (iii) (A) such Debt and Structured Securities shall have a bank final maturity or redemption date, as the case may be, no earlier than the Maturity Date (as the same may be extended pursuant to Section 2.4) and shall mature or be subject to redemption or defeasance no earlier than the Maturity Date (as so extended) and shall be subject to no mandatory redemption or "put" to the borrower or any Southern Union Trust exercisable, or sinking fund or other financial institution of similar mandatory principal payment pro- visions that require payments to be made toward principal, prior to such Maturity Date (as so extended); or (B) (x) such addi- tional Debt shall have a checkfinal maturity date prior to the Maturity Date, draft or similar instrument drawn against insufficient funds (y) such additional Debt shall not exceed Thirty- Five Million Dollars ($35,000,000.00) in the ordinary course aggregate plus Five Million Dollars ($5,000,000.00) of business, provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt reimbursement obligations incurred in connection with Non-Facility Letters of Credit issued by a Bank or Banks or by any other financial institution, and (z) such additional Debt shall be borrowed from a Bank or Banks as a loan or loans arising independent of this Agreement or the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party Short- Term Credit Facility Agreement or shall be borrowed from a financial institution that is not a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted Bank under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions Agreement or the disposition of any business, assets or Stock permitted by this Short-Term Credit Facility Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt.
Appears in 1 contract
Debt. Not, and not suffer or permit Neither the Borrower nor any Group Member toof its Subsidiaries will incur, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations the Notes or other Indebtedness arising under this Agreement and the Loan Documents or any guaranty of or suretyship arrangement for the Notes or other Indebtedness arising under the Loan Documents;.
(b) Debt secured accounts payable and other accrued expenses, liabilities or other obligations to pay (for the deferred purchase price of Property or services) from time to time incurred in the ordinary course of business which are not greater than ninety (90) days past the date of invoice or delinquent or which are being contested in good faith by Liens permitted by Section 7.2(d), appropriate action and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;for which adequate reserves have been maintained in accordance with GAAP.
(c) intercompany Debt which between the Borrower and any of its Subsidiaries or between Subsidiaries to the extent permitted by Section 9.05(g); provided that such Debt is not held, assigned, transferred, negotiated or pledged to any Person other than the Borrower or one of their Wholly-Owned Subsidiaries, and, provided further, that any such Debt owed by either the Borrower or a Guarantor shall be subordinated to the Obligations Indebtedness on terms set forth in the Guaranty Agreement.
(d) endorsements of negotiable instruments for collection in the ordinary course of business.
(e) Debt now or hereafter outstanding under this the Senior Credit Agreement (and any guaranties thereof by the other Loan DocumentsGuarantors), provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf no part of the Lender on terms Debt owing under the Senior Credit Agreement is subordinated in right of payment to any other Debt owing under the Senior Credit Agreement and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) at the Borrower time each such item of Debt is incurred (A) the aggregate amount thereof does not exceed the "Borrowing Base" then in effect under the Senior Credit Agreement (or, if such "Borrowing Base" ever ceases to exist or diverges materially from a conventional commercial bank borrowing base, does not exceed a conventional commercial bank borrowing base) and its Subsidiaries shall be in compliance, on a Pro Forma Basis (B) after giving effect to the incurrence of such Debt and the application Debt, no Default or Event of the proceeds thereof, with the financial covenants set forth in Default then exists under Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;9.01.
(f) Contingent Obligations arising with respect other Debt not to customary indemnification obligations exceed $2,000,000 in favor of purchasers in connection with dispositions permitted under Section 7.5;the aggregate at any one time outstanding.
(g) Debt arising from pursuant to the honoring by a bank or other financial institution of a checkSenior Credit Agreement, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that including any Debt associated with Swap Agreements secured pari passu with such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt.
Appears in 1 contract
Samples: Second Lien Senior Subordinated Term Loan Agreement (Linn Energy, LLC)
Debt. Not(a) The Borrower will not, and will not suffer or permit any Group Member of its Consolidated Subsidiaries to, create, incur, assume or suffer to exist exist, any Debt, except for the following Debt other than:
(i) Debt of the Borrower and/or Loan Party Subsidiaries:
(a) Obligations under this Agreement and the other Loan Documents;
(bii) unsecured Debt secured owing by Liens permitted by Section 7.2(d), and the Borrower to any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000Consolidated Subsidiary;
(ciii) unsecured Debt owing by any Consolidated Subsidiary to the Borrower or any other Consolidated Subsidiary;
(iv) Debt which is subordinated to the Obligations under this Agreement and the (other Loan Documents, provided that (i) the holder(sthan Derivative Obligations) of Consolidated Subsidiaries, so long as (A) no Default or Event of Default exists on the date such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to is incurred or would result from the incurrence of such Debt, and (B) the aggregate amount of such Debt and the application does not exceed fifteen percent (15%) of Net Worth as of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case last day of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the fiscal quarter most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect prior to the date of incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(dv) Debt (other than Derivative Obligations) of Borrower to the Borrower, so long as (A) such Debt is not Guaranteed by any Loan Party that is a Wholly-Owned Subsidiary of the Borrower, except to the extent permitted by paragraph (iv) above, and (B) no Default or Event of Default exists on the date such Debt is incurred or would result from the incurrence of such Debt; and
(vi) Derivative Obligations of the Borrower and its Consolidated Subsidiaries, so long as (A) no Default or Event of Default exists on the date such Derivative Obligations are incurred or would result from the incurrence thereof and (B) the aggregate amount of such Derivative Obligations does not exceed ten percent (10%) of Net Worth as of the last day of the fiscal quarter most recently ended prior to the date of incurrence for which financial statements are available.
(b) The Borrower will not permit any Excluded Affiliate to create, incur, assume or suffer to exist any Debt unless the agreements evidencing or providing for such Debt contain a provision to the effect that the holders of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn have no recourse against insufficient funds in the ordinary course of business, provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of its Consolidated Subsidiaries, or any of their respective assets, for the Borrower providing for indemnificationpayment of such Debt; provided, adjustment of purchase price or similar obligations (including earn-outs)however, in each case entered into in connection with Permitted Acquisitions or that the disposition of foregoing shall not apply to any business, assets or Stock permitted by this Agreement;
(k) such Debt of an Excluded Affiliate that is covered by a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by Guaranty from the Borrower or a Consolidated Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition that constitutes Debt permitted under by Section 7.11(g6.01(a), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt.
Appears in 1 contract
Samples: Credit Agreement (Kirby Corp)
Debt. Not, and not suffer or permit Neither the Borrower nor any Group Member toof its Subsidiaries will incur, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) the Notes or other Obligations arising under this Agreement and the Loan Documents or any guaranty of or suretyship arrangement for the Notes or other Obligations arising under the Loan Documents;
(b) Debt secured accounts payable and other accrued expenses, liabilities or other obligations to pay (for the deferred purchase price of Property or services) from time to time incurred in the ordinary course of business with respect to which no more than 90 days have elapsed since the date Third Amended and Restated Credit Agreement – Page 89 715347206 14464587 of invoice or that are being contested in good faith by Liens permitted by Section 7.2(d), appropriate action and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000for which adequate reserves have been maintained in accordance with GAAP;
(c) intercompany Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) between the Borrower and any of its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect or between Subsidiaries to the incurrence of extent permitted by Section 9.05(d); provided that such Debt and the application of the proceeds thereofis not held, with the financial covenants set forth in Section 7.13 (butassigned, in the case of the Maximum Total Leverage Ratiotransferred, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less negotiated or pledged to any Person other than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability Borrower or one of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a its Wholly-Owned Subsidiary of Subsidiaries, and, provided further, that any such Debt owed by either the Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note Guarantor shall be subordinated to the Obligations hereunder on terms set forth in a manner satisfactory to Agentthe Guarantee Agreement;
(ed) Debt described on Schedule 7.1 as endorsements of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums negotiable instruments for collection in the ordinary course of business;
(ie) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary Obligor in respect of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing workers’ compensation claims, performance bonds, surety bonds, and appeal bonds issued for indemnification, adjustment of purchase price or similar obligations (including earn-outs)its account, in each case entered into in connection with Permitted Acquisitions or the disposition ordinary course of any business, assets or Stock permitted by this Agreementsurety/bonds to governmental agencies;
(kf) Debt incurred under Unsecured Notes and any guarantees by a Guarantor in respect thereof in an aggregate principal amount that would not cause, as of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by Debt is incurred, the Borrower or a Subsidiary ratio of Total Net Debt to Adjusted EBITDA to exceed the Borrower in a transaction constituting a Permitted Acquisition maximum amount then permitted under Section 7.11(g9.01(b) after giving pro forma effect to such incurrence, provided that (1) such Unsecured Notes and any Unsecured Notes Indenture under which such Unsecured Notes are issued contain customary terms and conditions for unsecured notes of similar type and of like tenor and amount and do not contain any financial covenants that are, taken as a whole, more onerous to the Borrower and its Subsidiaries than those imposed by this Agreement (as determined in good faith by the senior management of the General Partner) (as in effect on the date of Incurrence of such Debt), together with (2) the final stated maturity date and the average life (based on the stated final maturity date and payment schedule provided at the date of issuance) of such Unsecured Notes shall not be earlier than 180 days after the Maturity Date (as in effect on the date of Incurrence of such Debt), and (3) at the time of and immediately after giving effect to each incurrence of such Debt, no Default or Event of Default shall have occurred and be continuing, and provided, further, that immediately upon any Permitted Refinancing thereof; provided thatincurrence of Debt permitted by this clause (f), the Borrowing BaseRBL Component then in effect shall be automatically reduced by an amount equal to the product of (i) 25% of the aggregate principal amount of such Debt incurred (xcalculated at the face amount of the Debt incurred without giving effect to any original issue discount) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and times (ii) the aggregate outstanding principal amount of all percentage determined by dividing the RBL Component as in effect prior to giving effect to such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) automatic reduction by the aggregate outstanding principal amount of all Borrowing Base as in effect prior to giving effect to such Permitted Seller Debt does not exceed CDN$2,000,000 at any time automatic reduction and (yb) no Group Member other than the Borrower will be obligated any Permitted Refinancing Debt in respect of Permitted Seller Debt.thereof;
Appears in 1 contract
Debt. NotFor purposes of the foregoing: (a) the maximum fixed repurchase price of any Redeemable Capital Interests that do not have a fixed repurchase price shall be calculated in accordance with the terms of such Redeemable Capital Interests as if such Redeemable Capital Interests were repurchased on any date on which Debt shall be required to be determined pursuant to this Indenture; provided, however, that, if such Redeemable Capital Interests are not then permitted to be repurchased, the repurchase price shall be the book value of such Redeemable Capital Interests; (b) the amount outstanding at any time of any Debt issued with original issue discount is the principal amount of such Debt less the remaining unamortized portion of the original issue discount of such Debt at such time as determined in conformity with GAAP, but such Debt shall be deemed Incurred only as of the date of original issuance thereof; (c) the amount of any Debt described in clause (viii) is the net amount payable (after giving effect to permitted set-off) if such Swap Contracts or Hedging Obligations are terminated at that time due to default of such Person; (d) the amount of any Debt described in clause (x)(A) above shall be the maximum liability under any such Guarantee; (e) the amount of any Debt described in clause (x)(B) above shall be the lesser of (I) the maximum amount of the obligations so secured and (II) the Fair Market Value of such property or other assets; (f) interest, fees, premium, and expenses and additional payments, if any, will not suffer or permit constitute Debt; and (g) to the extent not otherwise included in this definition, the Receivables Transaction Amount outstanding relating to any Group Member toQualified Receivables Transaction shall be deemed to constitute Debt and, createin any Qualified Receivables Transaction structured as a transfer of accounts receivable and related assets, incur, assume or suffer such Debt shall be deemed to exist any Debt, except for the following constitute Debt of the Borrower and/or Loan Party Subsidiaries:
(a) Obligations under this Agreement originator of such accounts receivable and related assets. The amount of Debt of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above and the other Loan Documents;
(b) maximum liability, only upon the occurrence of the contingency giving rise to the obligations, of any contingent obligations at such date; provided, however, that in the case of Debt secured by Liens permitted by Section 7.2(d)sold at a discount, and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtthe accreted value thereof at such time.
Appears in 1 contract
Samples: Indenture (Triumph Group Inc)
Debt. NotThe Borrower will not, and will not suffer or permit any Group Member Restricted Subsidiary to, incur, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(ai) Obligations the Notes or other Indebtedness arising under the Loan Documents or any guaranty of or suretyship arrangement for the Notes or other Indebtedness arising under the Loan Documents and (ii) Debt outstanding on the date hereof (provided that any Debt that is in excess of $1,000,000 individually or $5,000,000 in the aggregate shall only be permitted under this Agreement and clause (ii) to the other Loan Documentsextent such Debt is listed on Schedule 9.02(a));
(b) Debt secured accounts payable and accrued expenses, liabilities or other obligations to pay the deferred purchase price of Property or services, from time to time incurred in the ordinary course of business which are not overdue for a period of more than ninety (90) days or which are being contested in good faith by Liens permitted by Section 7.2(d), appropriate action and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000for which adequate reserves have been maintained in accordance with GAAP;
(c) Debt which is subordinated under Capital Leases and purchase money Debt in an aggregate amount not to the Obligations under this Agreement and the other Loan Documents, provided that exceed two percent (i) the holder(s2%) of the then effective Borrowing Base (as measured at the time any such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Periodis incurred), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt associated with bonds or surety obligations required by Governmental Requirements in connection with the operation of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form the Oil and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to AgentGas Properties;
(e) intercompany Debt described on Schedule 7.1 as incurred by (a) a Loan Party owing to Holdings, the Borrower or any Subsidiaries; provided that any such Debt owed by a Loan Party to a Subsidiary that is not a Guarantor shall (A) be evidenced by the Intercompany Note or (B) otherwise be subject to subordination terms substantially identical to the subordination terms in the form of Intercompany Note set forth in Exhibit I or (b) any Restricted Subsidiary that is not a Guarantor owing to the Closing Date, and Borrower or any Permitted Refinancing thereofSubsidiary to the extent permitted by Section 9.05;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor endorsements of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums negotiable instruments for collection in the ordinary course of business;
(ig) guaranties by Borrower Debt of the Debt Borrower owing to any Equity Interest holder of any Loan Party the Borrower that is a Wholly-Owned Permitted Holder (“Capital Debt”) that (a) is unsecured, (b) is fully subordinated in right of payment and liquidation to the Indebtedness on written terms reasonably acceptable to the Administrative Agent, (c) has a scheduled maturity date that is no earlier than one year after the Maturity Date in effect at the time of such issuance, (d) does not provide for scheduled or mandatory prepayments, redemptions, repayments, or defeasance of principal for any consideration on any date prior to one year after the Maturity Date in effect at the time of such issuance, (e) does not provide for any payments of interest (other payments made with common Equity Interests of the Borrower and payments made in kind by adding to the principal thereof) on any date prior to one year after the Maturity Date in effect at the time of such issuance, (f) does not (A) have any financial covenants or any other affirmative or negative covenants that are more restrictive than under this Agreement or (B) contain cross defaults to or for any other Debt, (g) does not have any restriction on the ability of the Borrower or any of its Restricted Subsidiaries to amend, modify or otherwise supplement this Agreement or the other Loan Documents, (h) does not have any restrictions on the ability of the Borrower or any of its Restricted Subsidiaries to guarantee the Indebtedness or pledge assets as collateral security for the Indebtedness, (i) is not guaranteed by any Restricted Subsidiary of the Borrower and (j) is not assignable or transferable to any Person who is not a Permitted Holder;
(h) Guarantees of the Borrower and its Restricted Subsidiaries in respect of Debt of the Borrower or guaranties by any such Restricted Subsidiary thereof of otherwise permitted hereunder; provided that (i) if the Debt of Borrower in each case so long as such Debt is permitted being guaranteed under this Section 7.19.02(h) is subordinated to the Indebtedness, such guarantee shall be subordinated to the guarantee of the Indebtedness under the Guaranty and Pledge Agreement on terms at least as favorable to the Lenders as those contained in the subordination of such Debt and (ii) no guarantee by any Restricted Subsidiary of any Permitted Notes or Second Lien Obligations shall be permitted unless such Restricted Subsidiary shall have also provided a guarantee of the Indebtedness pursuant to the Guaranty and Pledge Agreement;
(i) Debt (other than Debt for borrowed money) secured by Liens permitted under clauses (c) and (d) of the definition of Excepted Liens;
(j) Debt arising from agreements in respect of netting services, overdraft protections and similar arrangements in each case in connection with deposit accounts;
(k) any Permitted Notes or Second Lien Obligations issued or incurred by the Borrower or any Loan Party Subsidiary Guarantor and any guarantees of such Debt by any Guarantor, provided that (i) at the time of incurring such Debt (A) no Default or Event of Default has occurred and is then continuing or would immediately result from the incurrence thereof (after giving any concurrent repayment of any other Debt with the proceeds of such Debt) or (B) if the proceeds of such Debt are being used to finance a Permitted Acquisition, no Payment or Bankruptcy Event of Default has occurred and is then continuing or would immediately result therefrom (after giving any concurrent repayment of Debt with the proceeds of such Debt), (ii) such Debt does not provide for any scheduled repayment (including amortization) or mandatory redemption prior to ninety-one days after the Maturity Date as in effect on the date of incurrence thereof (other than customary amortization of 1.0% per annum and customary offers to purchase upon a change of control, AHYDO payments, customary asset sale or casualty or condemnation events and customary acceleration rights after an event of default or terms not materially more restrictive on the Borrower and its Restricted Subsidiaries than the Existing Second Lien Facility), (iii) such Debt does not have a stated maturity date prior to ninety-one (91) days after the Maturity Date, (iv) if such Debt is in respect of Second Lien Obligations, it shall at all times be subject to a Customary Intercreditor Agreement and (v) the financial and negative covenants and events of default of such Debt are (A) taken as a whole, not materially less favorable to the Borrower and its Restricted Subsidiaries than such terms in this Agreement (provided that a certificate of an Responsible Officer of the Borrower providing for indemnificationdelivered to the Administrative Agent at least three Business Days (or such shorter time as the Administrative Agent may agree) prior to the incurrence or issuance of such Debt, adjustment together with a reasonably detailed description of purchase price such terms of such Debt or similar obligations (including earn-outsdrafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement), in each case entered (B) are reasonably satisfactory to the Administrative Agent or (C) incorporated into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(kl) Debt of a Loan Party Subsidiary Second Lien Obligations existing or committed as of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary Closing Date in respect of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g)Existing Second Lien Facility, together with the Existing Notes and any Permitted Refinancing thereofDebt in respect of the foregoing (and any such Permitted Refinancing Debt) in an aggregate principal amount outstanding not to exceed $1,850,000,000 plus any Permitted Refinancing Increase in respect of the foregoing Debt; provided that, in the case of any Second Lien Obligations (including any Permitted Refinancing Debt constituting Second Lien Obligations), such Second Lien Obligations are at all times subject to a Customary Intercreditor Agreement;
(m) (i) such Permitted Refinancing Debt in respect of any Debt permitted under Sections 9.02(a)(ii), 9.02(c), 9.02(g) and 9.02(k) and (xii) was not incurred in connection with or in anticipation of any subsequent Permitted Refinancing Debt which relates to the Permitted Refinancing Debt otherwise permitted by this subsection; provided that, for both clauses (i) and (ii), any such Permitted Acquisition Refinancing Debt in respect of Capital Debt, complies with the requirements of Section 9.02(g) or is on terms reasonably satisfactory to the Administrative Agent and (yB) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on Refinancing Debt constituting Second Lien Obligations is subject to a Customary Intercreditor Agreement; and
(n) other additional Debt and any property other than Permitted Refinancing Debt in respect thereof, provided that which secured it before such Permitted Acquisition and no additional Debt may be incurred under this Section 9.02(n) if, at the time of incurrence, the sum of (i) the principal amount of any Debt to be incurred plus (ii) the aggregate outstanding principal amount of all Debt incurred pursuant to this Section 9.02(n) outstanding at the time of such Debt does not exceed CDN$2,000,000 at any time; and
new incurrence exceeds (l) Permitted Seller Debt; provided that (iafter giving effect to the use of proceeds thereof) the aggregate outstanding principal amount greater of all such $50,000,000 and seven percent (7.0%) of Consolidated Net Tangible Assets (measured, subject to Section 1.06, as of the last day of most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 8.01) plus any Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated Refinancing Increase in respect of Permitted Seller the foregoing Debt.
Appears in 1 contract
Samples: Credit Agreement (Forest Oil Corp)
Debt. NotThe Borrower will not, and will not suffer permit any ---- Subsidiary to, incur or permit any Group Member to, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Debt evidenced by the Notes, the Long-Term Credit Facility Notes and Facility Letter of Credit Obligations under this Agreement and the other Loan Documentsnot in default;
(b) Debt secured by Liens permitted by Section 7.2(d), and of any Permitted Refinancings thereof; provided that Subsidiary to the aggregate principal amount of all such Debt at Borrower or any time outstanding shall not exceed CDN$1,000,000other Subsidiary;
(c) Debt which is subordinated to existing as of June 30, 1998 as reflected on financial statements delivered under Section 6.2(b) and refin- ancings thereof other than Debt that has been refinanced by the Obligations under this Agreement and proceeds of Loans or the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf proceeds of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation PeriodLong-Term Credit Facility;
(d) Debt endorsements in the ordinary course of Borrower to any Loan Party that is a Wholly-Owned Subsidiary business of Borrower or Debt negotiable instruments in the course of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agentcollection;
(e) Debt described on Schedule 7.1 of the Borrower or any Subsidiary repre- senting the portion of the purchase price of property acquired by the Borrower or such Subsidiary that is secured by Liens per- mitted by the provisions of Section 9.2(d); provided, however, -------- ------- that at no time may the aggregate principal amount of such Debt outstanding exceed fifteen percent (15%) of the Consolidated Net Worth of the borrower and its Subsidiaries as of the Closing Date, and any Permitted Refinancing thereofapplicable determination date;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;Debt evidenced by Senior Notes; and
(g) additional Debt arising from of the honoring by Borrower and Structured Securities of the Borrower and the Southern Union Trusts provided that after giving effect to the issuance thereof there shall exist no Default or Event of Default; and:
(i) the ratio of Con- solidated Total Indebtedness to Consolidated total Capitalization shall be no greater than 0.70 to 1.00; (ii) the ratio of EBDIT to pro forma Cash Interest Expense shall be no less than 2.25 to 1.00; and (iii) (A) such Debt and Structured Securities shall have a bank final maturity or redemption date, as the case may be, no earlier than the Maturity Date (as the same may be extended pur- suant to Section 2.4) and shall mature or be subject to redemp- tion or defeasance no earlier than the Maturity Date (as so extended) and shall be subject to no mandatory redemption or "put" to the borrower or any Southern Union Trust exercisable, or sinking fund or other financial institution of similar mandatory principal payment pro- visions that require payments to be made toward principal, prior to such Maturity Date (as so extended); or (B) (x) such addi- tional Debt shall have a checkfinal maturity date prior to the Maturity Date, draft or similar instrument drawn against insufficient funds (y) such additional Debt shall not exceed Thirty- Five Million Dollars ($35,000,000.00) in the ordinary course aggregate plus Five Million Dollars ($5,000,000.00) of business, provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt reimbursement obligations incurred in connection with Non-Facility Letters of Credit issued by a Bank or Banks or by any other financial institution, and (z) such additional Debt shall be borrowed from a Bank or Banks as a loan or loans arising independent of this Agreement or the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party Long- Term Credit Facility Agreement or shall be borrowed from a financial institution that is not a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted Bank under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions Agreement or the disposition of any business, assets or Stock permitted by this Long-Term Credit Facility Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt.
Appears in 1 contract
Debt. NotContract, and not create, incur, assume or suffer to exist any Debt, or permit any Group Member toof its Material Subsidiaries to contract, create, incur, assume or suffer to exist any Debt, except for the following (i) Debt of the Borrower and/or Loan Party Subsidiaries:
(a) Obligations under this Agreement and the other Loan Documents;
; (bii) (x) Surviving Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereof; provided that the Refinancing thereof and (y) Debt in respect of any Receivables Facility in an aggregate principal amount of all such Debt at any time outstanding shall not to exceed CDN$1,000,000;
€170,000,000 (cor the equivalent amount in Dollars); (iii) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) arising from Investments among the Borrower and its Subsidiaries that are permitted hereunder; (iv) Debt in respect of any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing house transfers of funds; (v) guarantees of Debt otherwise permitted under this Agreement or non-recourse Debt in respect of Investments in joint ventures permitted under Section 5.02(f)(ix) or Section 5.02(f)(xv) provided that (A) if such Debt is secured, after giving pro forma effect thereto, the Availability Condition shall be satisfied and (B) if such Debt is unsecured, the pro forma Consolidated Fixed Charge Coverage Ratio is at least 1.0:1.0; (vi) Debt of Foreign Subsidiaries provided that (A) if such Debt is secured, after giving pro forma effect thereto, the Availability Condition shall be satisfied and (B) if such Debt is unsecured, the pro forma Consolidated Fixed Charge Coverage Ratio is at least 1.0:1.0; (vii) Debt constituting purchase money debt and Capitalized Lease obligations (not otherwise included in compliancesubclause (iii) above and including any such Debt or Capitalized Lease obligations assumed in connection with a Permitted Acquisition); provided that, on a Pro Forma Basis giving effect to at the time of incurrence of such Debt and after giving pro forma effect thereto, the application Availability Condition shall be satisfied; (viii) (x) Debt in respect of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, Hedge Agreements entered into in the case ordinary course of the Maximum Total Leverage Ratiobusiness to protect against fluctuations in interest rates, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (foreign exchange rates and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), commodity prices and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(dy) Debt of Borrower arising under the Credit Card Program; (ix) indebtedness which may be deemed to exist pursuant to any Loan Party that is a Wholly-Owned Subsidiary of Borrower surety bonds, appeal bonds or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the similar obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers incurred in connection with dispositions permitted under Section 7.5;
any judgment not constituting an Event of Default; (gx) Debt arising from the honoring by a bank or other financial institution indebtedness in respect of a checknetting services, draft or similar instrument drawn against insufficient funds customary overdraft protections and otherwise in connection with deposit accounts in the ordinary course of business; (xi) payables owing to suppliers in connection with the Tooling Program, provided that such (xii) Debt is extinguished within two (2) Business Days representing deferred compensation to employees of notice to the Borrower or any other Loan Party incurred in the relevant Subsidiary ordinary course of its incurrence;
business; (hxiii) Debt incurred by the Borrower or any of its Subsidiaries in connection with a Permitted Acquisition, any other Investment expressly permitted hereunder or any Disposition, in each case limited to indemnification obligations or obligations in respect of purchase price, including Earn-Out Obligations or similar adjustments; (xiv) Debt consisting of the financing of insurance premiums in the ordinary course of business;
; (ixv) guaranties Debt supported by Borrower a Letter of Credit in a principal amount not to exceed the face amount of such Letter of Credit; (xvi) Subordinated Debt of the Loan Parties provided that after giving pro forma effect thereto, the pro forma Consolidated Fixed Charge Coverage Ratio is at least 1.0:1.0; (xvii) secured Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case not otherwise permitted hereunder so long as after giving pro forma effect thereto, the Availability Condition is satisfied; (xviii) Debt incurred in connection with the issuance of the Senior Notes (the “Senior Notes Debt”)(and any Permitted Refinancings thereof); (xix) Debt assumed in connection with any Permitted Acquisition (and any Permitted Refinancings thereof), provided that (1) such Debt is permitted was not incurred in contemplation of such Permitted Acquisition, (2) the only obligors with respect to any Debt incurred pursuant to this clause (xix) shall be those Persons who were obligors of such Debt prior to such Permitted Acquisition (and any other Person that would have been required to become an obligor under this Section 7.1;
the terms of such Debt), and (j3) both immediately prior and after giving effect thereto, no Default shall exist or result therefrom; (xx) Debt arising from agreements of incurred by the Borrower or any Loan Party Subsidiary of its Subsidiaries to finance any Permitted Acquisition (and any Permitted Refinancings thereof); (xxi) unsecured Debt not otherwise permitted hereunder so long as the Consolidated Fixed Charge Coverage Ratio is at least 1.0:1.0 on a pro forma basis as at the end of the trailing four Fiscal Quarters most recently ended immediately prior to the incurrence of such Debt (calculated as if such Debt had been incurred at the beginning of such period) (and any Permitted Refinancings thereof); (xxii) Debt owed to any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower providing for indemnificationor any Subsidiary, adjustment of purchase price pursuant to reimbursement or similar indemnification obligations (including earn-outs)to such person, in each case entered into in connection with Permitted Acquisitions or the disposition ordinary course of any business, assets or Stock permitted by this Agreement;
; and (kxxiii) Debt purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase prices of an asset to satisfy unperformed obligations of the seller of such asset. Notwithstanding anything contained herein to the contrary, to the extent that any Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such incurs Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created Non-ABL Collateral in connection accordance with or this Section 5.02(b), the Collateral Agent, on behalf of the Secured Parties, shall be granted a second-priority lien in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller DebtNon-ABL Collateral.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Dana Holding Corp)
Debt. NotCreate, and not incur, assume or suffer to exist (or permit any Group Member to, Subsidiary to create, incur, assume or suffer to exist exist) any Debt, except for except: (i) Debt under the following Debt of the Borrower and/or Loan Party Subsidiaries:
(a) Obligations under this Agreement and the other Loan Documents;
, (bii) Debt secured by Liens permitted by Section 7.2(d), outstanding on the First Amendment Effective Date and listed on Schedule 5.02(b) as of such date and any Permitted Refinancings refinancings, refundings, renewals or extensions thereof; provided that the aggregate principal amount of all such Debt is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any time outstanding shall existing commitments unutilized thereunder and the direct or any contingent obligor with respect thereto is not exceed CDN$1,000,000;
changed, as a result of or in connection with such refinancing, refunding, renewal or extension, (ciii) Debt which is subordinated in respect of capital leases, synthetic debt obligations, and purchase money obligations for real property or equipment within the limitations set forth in Section 5.02(a)(iii), (iv) Unsecured Debt of a Subsidiary of a Borrower owed to such Borrower or of one Borrower owed to the Obligations other Borrower, which Debt shall (i) to the extent required by the Agent, be evidenced by promissory notes and (ii) be on terms (including subordination terms) acceptable to the Agent, (v) Guarantees of any Borrower in respect of Debt otherwise permitted hereunder (other than clause (vii) of this Section 5.02(b)) of any other Borrower, (vi) obligations (contingent or otherwise) existing or arising under this Agreement and the other Loan Documentsany Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the holder(sordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party, (vii) Debt secured by one or more Liens on any real property of any Borrower; provided that (i) such Debt enter into a subordination agreement with Agent on behalf of is not guaranteed by, or otherwise recourse to, the Lender on terms Borrowers and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower Liens securing such Debt shall attach to no property other than such real property; and its Subsidiaries shall be (viii) Debt not contemplated by the above provisions in compliance, on a Pro Forma Basis an aggregate principal amount not to exceed $50,000,000 at any time outstanding; provided that immediately before and after giving effect to the incurrence of such Debt and Debt, the application Borrowers are in pro forma compliance with each of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt5.03.
Appears in 1 contract
Samples: Credit Agreement (Scholastic Corp)
Debt. NotThe Borrower shall not, and shall not suffer or permit any Group Member of its Subsidiaries to, create, incur, assume or suffer to exist otherwise become or remain liable with respect to, any DebtDebt or Accommodation Obligations, except for the following Debt of the Borrower and/or Loan Party Subsidiariesfor:
(a) Debt and Accommodation Obligations arising hereunder and under this Agreement and the other Loan Documents;
(b) Unsecured Debt secured by Liens permitted by Section 7.2(d)and Accommodation Obligations outstanding on the date hereof described in Schedule 7.1, in each case in a principal amount at any one time outstanding not to exceed the amount set forth on Schedule 7.1 hereof, and any Permitted Refinancings all extensions and renewals thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) Endorsements of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 negotiable instruments for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums collection in the ordinary course of business;
(d) Debt relating to Borrower's obligations to purchase the natural gas pursuant to the terms of that certain Gas Purchase Contract dated February 7, 1979, as amended, between the Borrower, successor to Texas Gas Transmission Corporation, as buyer, and West Monroe Gas Gathering Corporation, et al., successor to Reliance Trust, et al., as sellers, covering the sale and purchase of natural gas from the West Monroe Field, Union Parish, Louisiana, as in effect on the Closing Date;
(e) Current liabilities (exclusive of Debt) for accounts payable and expense accruals incurred or assumed in the ordinary course of business, provided such accounts payable have not remained unpaid for a period of ninety (90) days after the same became due unless currently being contested in good faith or by appropriate proceedings;
(f) Liabilities for taxes, assessments, governmental charges or levies;
(g) Liabilities incurred under Hedge Transactions permitted pursuant to Section 7.13 hereof;
(h) Debt and Accommodation Obligations among the Borrower and any Subsidiary Guarantor, provided, that all such Debt and Accommodation Obligations incurred by the Borrower or any Subsidiary Guarantor shall be subordinated to the Obligations on terms acceptable to the Required Banks and provided, further, that at the time of the incurrence of such Debt or Accommodation Obligation there exists no Default or Event of Default and no Default or Event of Default will exist as a result of the incurrence of such Debt or Accommodation Obligation;
(i) guaranties by Borrower Debt and Accommodation Obligations of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower and its Subsidiaries which are Investments to the extent permitted by Subsection 7.5(d), (e) or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1(f) hereof;
(j) Purchase money Debt arising from agreements in respect of property acquired by the Borrower or any Loan Party Subsidiary and its Subsidiaries in the ordinary course of business provided, however, that the aggregate amount of all Debt incurred by the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of and its Subsidiaries pursuant to this Subsection 7.1(j) shall not exceed $1,500,000 at any business, assets or Stock permitted by this Agreement;one time outstanding; and
(k) Additional Debt not permitted by Subsections 7.1(a) through (j) above, provided, however, that the aggregate amount of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired all Debt incurred by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (iand its Subsidiaries pursuant to this Subsection 7.1(k) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does shall not exceed CDN$2,000,000 $1,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any one time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtoutstanding.
Appears in 1 contract
Debt. Not, and not suffer No Credit Party shall incur or permit any Group Member to, create, incur, assume or suffer to exist maintain any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiaries:
other than: (a) Obligations under this Agreement and the other Loan Documents;
Obligations; (b) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as 6.9; (c) Capital Leases of Equipment and purchase money secured Debt incurred to purchase Equipment provided that Liens securing the Closing Date, and any Permitted Refinancing thereof;
same attach only to the Equipment acquired by the incurrence of such Debt; (f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(gd) Debt arising from the honoring by evidencing a bank refunding, renewal 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) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower extension of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding described on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller DebtSchedule 6.9; provided that (i) the aggregate outstanding principal amount thereof is not increased, (ii) the Liens, if any, securing such refunded, renewed or extended Debt do not attach to any assets in addition to those assets, if any, securing the Debt to be refunded, renewed or extended, (iii) no Person that is not an obligor or guarantor of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time as of the Closing Date shall become an obligor or guarantor thereof, and (yiv) the terms of such refunding, renewal or extension are no Group Member other less favorable to the Borrower, the Administrative Agent or the Lenders than the original Debt; (e) obligations of the Borrower will be obligated in respect of Permitted Seller DebtHedging Agreements entered into in order to manage existing or anticipated interest rate or exchange rate risks and not for speculative purposes; (f) Indebtedness owing by one Credit Party to another Credit Party; (g) other unsecured Debt if, after giving effect to the incurrence thereof, the Borrower has Availability of not less than $15,000,000, and (h) Debt secured by Liens in the Collateral that are junior and subordinate to the Liens of the Administrative Agent in the Collateral on terms and conditions satisfactory to the Required Lenders in their reasonable credit judgment, if, after giving effect to the incurrence thereof, the Borrower has Availability of not less than $15,000,000.
(g) by amending and restating Sections 7.22, 7.23 and 7.24 of the Credit Agreement as follows:
Appears in 1 contract
Samples: Credit Agreement (Kforce Inc)
Debt. Not, and not suffer or permit any Group Member other Loan Party to, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt secured by Liens permitted by Section 7.2(d11.2(d), and any Permitted Refinancings extensions, renewals and refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000$3,000,000;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of any Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of other Borrower; provided that all if such Debt shall be is evidenced by a global intercompany demand note, such note in form and substance satisfactory to Agent and shall be pledged and delivered to the Administrative Agent pursuant to the applicable Collateral Document Documents as additional collateral security for the Obligations, and the obligations under such any demand note shall be subordinated to the Obligations of the applicable Borrower hereunder in a manner reasonably satisfactory to the Administrative Agent;
(d) Hedging Obligations approved by Administrative Agent and incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 7.1 as of the Closing Date, 11.1 and any Permitted Refinancing thereofextension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Contingent Obligations arising the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with respect to customary indemnification obligations in favor the proceeds of purchasers in connection with dispositions permitted under Section 7.5the initial Loans hereunder);
(g) Subordinated Debt arising from of the honoring by Company incurred to refinance the Term B Loans on terms and conditions in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders, in an amount not to exceed the remainder of (x) $75,000,000 less (y) the amount of Subordinated Debt outstanding under clause (m) below, or, if less, such amount such that immediately after giving effect to the issuance and the application of proceeds thereof, the Total Debt to EBITDA Ratio is less than or equal to 3.00 to 1.00; provided, that (i) immediately before and after giving effect to the issuance of such Subordinated Debt (A) no Unmatured Event of Default or Event of Default has occurred and is continuing and (B) the Revolving Loan Availability is equal to or more than $5,000,000 and (ii) the proceeds of such Subordinated Debt are actually used to Finally Pay the Term B Loans and the remaining proceeds, if any, are deposited in an account maintained with the Administrative Agent which has been pledged as Collateral for the Obligations pursuant to cash collateral arrangements satisfactory to the Administrative Agent and thereafter, prior to the occurrence of an Event of Default, used to make Permitted Acquisitions or to prepay the Term A Loans or the Revolving Loan pursuant to Section 6.2.1;
(h) Earnout Obligations and/or the deferred purchase price incurred in connection with a bank or other financial institution Permitted Acquisition in an amount not to exceed 20% of a check, draft or similar instrument drawn against insufficient funds the purchase price of such Permitted Acquisition;
(i) accretion and capitalization of interest on Debt otherwise permitted under this Agreement;
(j) Debt incurred in the ordinary course of business, provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred business in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreementpremiums;
(k) Debt incurred in the ordinary course of a Loan Party Subsidiary business in respect of the Borrower issued netting services, overdraft protections and outstanding on the date on which such Subsidiary was otherwise in connection with deposit accounts;
(l) Debt of an Acquired Entity acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting pursuant to a Permitted Acquisition permitted under Section 7.11(g)outstanding at the time of such Permitted Acquisition, together with any Permitted Refinancing thereof; provided that, (i) that such Debt shall not have been incurred in contemplation of such Permitted Acquisition;
(xm) was not Subordinated Debt incurred in connection with or Permitted Acquisitions in anticipation an amount not to exceed the remainder of (x) $75,000,000 less the amount of Subordinated Debt outstanding under clause (g) above; provided, that immediately before and after giving effect to the issuance of such Permitted Acquisition Subordinated Debt no Unmatured Event of Default or Event of Default has occurred and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any timecontinuing; and
(ln) Permitted Seller other Debt; provided that (i) , in addition to the Debt listed above, in an aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtexceeding $500,000.
Appears in 1 contract
Samples: Credit Agreement (Epiq Systems Inc)
Debt. Not, and not suffer or permit any Group Member other Loan Party to, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations under this Agreement, the other Loan Documents, the PGIM Note Agreement and the other Loan Senior Note Documents;
(b) Debt secured by Liens permitted by Section 7.2(d11.2(d) (including the Debt set forth in Schedule 10.1(c)), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated extensions, renewals and refinancings thereof subject to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, pro forma compliance with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period11.14 herein;
(dc) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower Guarantor or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower Guarantor to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; Guarantor;
(d) Subordinated Debt provided that (i) Borrower is in pro forma compliance with the financial covenants set forth in Section 11.14 herein including pro forma compliance with the Fixed Charge Coverage Ratio such that the denominator includes scheduled principal payments on all such Senior Notes including principal payments on those Senior Notes that have been issued as of the Closing Date and principal payments on those Senior Notes that are issued after the Closing Date; (ii) the aggregate amount of Subordinated Debt shall be evidenced by not exceed 0.5x Pro Forma EBITDA when such Subordinated Debt is, or is to be, issued; and (iii) Borrower uses a global intercompany demand note Subordination Agreement substantially in the form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document attached hereto as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to AgentExhibit F;
(e) Debt described on Schedule 7.1 as Hedging Obligations approved by Administrative Agent and incurred in favor of the Closing Date, a Lender or an Affiliate thereof for bona fide hedging purposes and any Permitted Refinancing thereofnot 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) Contingent Obligations Liabilities 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 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;11.8; and
(h) Other unsecured Debt incurred in connection subject to pro forma compliance with the financing of insurance premiums financial covenants set forth in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt11.14 herein.
Appears in 1 contract
Debt. Not, and not suffer or permit any Group Member to, create, incurIncur, assume or suffer allow to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations under this Agreement and the other Loan DocumentsObligations;
(b) Debt secured by Liens permitted by Section 7.2(dexisting on the date hereof which is identified on Schedule 6.1(b), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to under the Obligations under this Agreement and the other Loan Basic Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party Capital Leases that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note do not exceed $500,000 in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agentaggregate;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any secured by a Permitted Refinancing thereofEncumbrance;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions Debt under a Hedging Agreement permitted under Section 7.5this Agreement;
(g) Debt arising from accounts payable, accrued expenses, and obligations to pay the honoring by a bank deferred purchase price of property or other financial institution of a check, draft or similar instrument drawn against insufficient funds services that (i) are incurred in the ordinary course of business, provided that such Debt is extinguished within two (2ii) Business Days of notice to are not more than 90 days past due or otherwise delinquent, and (iii) do not exceed $500,000 in the aggregate (excluding amounts being diligently contested in good faith and by appropriate action by Borrower or the relevant Subsidiary of its incurrenceand against which Borrower maintains adequate reserves in accordance with GAAP);
(h) Debt letters of credit, worker’s compensation claims, surety bonds and performance bonds incurred in connection the ordinary course of business, and, with respect to each such instrument or claim that exceeds $250,000, Approved by Administrative Agent (acting at the financing direction of insurance premiums the Required Lenders);
(i) guaranties permitted to exist pursuant to Section 6.3;
(j) endorsements of negotiable instruments for collection in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary Approved by Administrative Agent (acting at the reasonable direction of the Borrower issued Required Lenders) and outstanding on fully subordinated to the date on which such Subsidiary was acquired by the Borrower or Obligations pursuant to a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any timeSubordination Agreement; and
(l) Permitted Seller Debt which represents an extension, refinancing or renewal of any of the Debt described in Sections 6.1(b)-(j) (such Debt being so extended, refinanced or renewed being referred to herein as the “Refinanced Debt”); provided that (i) such Refinancing Debt does not increase the aggregate outstanding principal amount of all the Refinanced Debt, except in the amount of reasonable and customary fees, cost and expenses incurred in connection with the extension, renewal or replacement, (ii) any Liens securing such Permitted Seller Refinanced Debt are not extended to any additional property of Borrower, (iii) such Refinancing Debt does not exceed CDN$2,000,000 result in a shortening of the average weighted maturity of such Refinanced Debt, (iv) if such Refinanced Debt was subordinated in right of payment to the Obligations, then the terms and conditions of such Refinancing Debt must include subordination terms and conditions that are at any time least as favorable to the Administrative Agent and the Lenders as those that were applicable to such Refinanced Debt, (v) no Event of Default exists; (vi) Borrower has provided five Business Days prior written notice to Administrative Agent of its intention to incur Refinanced Debt, and (yvii) no Group Member other than Borrower has provided Administrative Agent with all information reasonably requested by Administrative Agent in order to confirm that the Borrower will be obligated in respect of Permitted Seller DebtRefinanced Debt complies with this Section 6.1(l).
Appears in 1 contract
Debt. Not(a) The Borrower will not, and will not suffer or permit any Group Member of its Consolidated Subsidiaries to, create, incur, assume or suffer to exist exist, any Debt, except for the following Debt other than:
(i) Debt of the Borrower and/or Loan Party Subsidiaries:
(a) Obligations under this Agreement and the other Loan Documents;
(bii) unsecured Debt secured owing by Liens permitted by Section 7.2(d), and the Borrower to any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000Consolidated Subsidiary;
(ciii) unsecured Debt owing by any Consolidated Subsidiary to the Borrower or any other Consolidated Subsidiary;
(iv) Debt which is subordinated to the Obligations under this Agreement and the (other Loan Documents, provided that (i) the holder(sthan Derivative Obligations) of Consolidated Subsidiaries, so long as (A) no Default or Event of Default exists on the date such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to is incurred or would result from the incurrence of such Debt, and (B) the aggregate amount of such Debt and the application does not exceed fifteen percent (15%) of Net Worth as of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case last day of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the fiscal quarter most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect prior to the date of incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(dv) Debt (other than Derivative Obligations) of Borrower to the Borrower, so long as (A) such Debt is not Guaranteed by any Loan Party that is a Wholly-Owned Subsidiary of Borrower the Borrower, except to the extent permitted by paragraph (iv) above, and (B) no Default or Debt Event of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all Default exists on the date such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to is incurred or would result from the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under incurrence of such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;Debt; and
(evi) Debt described Derivative Obligations of the Borrower and its Consolidated Subsidiaries, so long as (A) no Default or Event of Default exists on Schedule 7.1 the date such Derivative Obligations are incurred or would result from the incurrence thereof and (B) the aggregate amount of such Derivative Obligations does not exceed ten percent (10%) of Net Worth as of the Closing Date, and any Permitted Refinancing thereof;last day of the fiscal quarter most recently ended prior to the date of incurrence for which financial statements are available.
(fb) Contingent Obligations arising with respect The Borrower will not permit any Excluded Affiliate to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) create, incur, assume or suffer to exist any Debt arising from unless the honoring by a bank agreements evidencing or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that providing for such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of do not provide for recourse against the Borrower or any Loan Party Subsidiary of its Consolidated Subsidiaries, or any of their respective assets, for the Borrower providing for indemnificationpayment of such Debt; provided, adjustment of purchase price or similar obligations (including earn-outs)however, in each case entered into in connection with Permitted Acquisitions or that the disposition of foregoing shall not apply to any business, assets or Stock permitted by this Agreement;
(k) such Debt of an Excluded Affiliate that is covered by a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by Guaranty from the Borrower or a Consolidated Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition that constitutes Debt permitted under by Section 7.11(g6.01(a), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt.
Appears in 1 contract
Samples: Credit Agreement (Kirby Corp)
Debt. Not, and not suffer No Credit Party shall incur or permit any Group Member to, create, incur, assume or suffer to exist maintain any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesother than:
(a) Obligations under this Agreement and the other Loan DocumentsObligations;
(b) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000described on Schedule 6.9;
(c) Capital Leases of Equipment and purchase money secured Debt which is subordinated incurred to the Obligations under this Agreement and the other Loan Documents, purchase Equipment provided that (i) Liens securing the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior same attach only to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to Equipment acquired by the incurrence of such Debt and (ii) at any time during the application of Additional Availability Period, the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence aggregate amount of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be (including Capital Leases) outstanding does not less than the Fixed Charges Coverage Ratio Requirement for such Computation Periodexceed $15,000,000;
(d) Debt evidencing a refunding, renewal or extension of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt6.9; provided that (i) the aggregate outstanding principal amount thereof is not increased, (ii) the Liens, if any, securing such refunded, renewed or extended Debt do not attach to any assets in addition to those assets, if any, securing the Debt to be refunded, renewed or extended, (iii) no Person that is not an obligor or guarantor of all such Permitted Seller Debt does as of the Closing Date shall become an obligor or guarantor thereof, and (iv) the terms of such refunding, renewal or extension are no less favorable to the Borrowers, the Administrative Agent or the Lenders than the original Debt;
(e) obligations of the Borrowers in respect of Hedging Agreements entered into in order to manage existing or anticipated interest rate or exchange rate risks and not exceed CDN$2,000,000 for speculative purposes;
(f) Indebtedness owing by one Credit Party to another Credit Party;
(g) other unsecured Debt (i) at any time outstanding during the Additional Availability Period, in an amount not to exceed $2,000,000 in the aggregate and (yii) no Group Member other at any time outstanding after the expiration or termination of the Additional Availability Period, in any amount so long as, after giving effect to the incurrence thereof, the Borrowers have Availability of not less than $15,000,000, and
(h) at any time outstanding after the Borrower will be obligated expiration or termination of the Additional Availability Period, Debt secured by Liens in respect the Collateral that are junior and subordinate to the Liens of Permitted Seller Debtthe Administrative Agent in the Collateral on terms and conditions satisfactory to the Required Lenders in their reasonable credit judgment, if, after giving effect to the incurrence thereof, the Borrowers have Availability of not less than $15,000,000.
Appears in 1 contract
Samples: Credit Agreement (Kforce Inc)
Debt. NotContract, and not create, incur, assume or suffer to exist any Debt, or permit any Group Member toof its Material Subsidiaries to contract, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiaries:
(a) Obligations under this Agreement and the other Loan Documents;
(bi) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (iii) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender incurred prior to the incurrence thereofPetition Date (including any capital lease obligations assumed after the Petition Date), (iiiii) Debt arising from Investments among the Borrower and its Subsidiaries shall be that are permitted hereunder, (iv) Debt in compliancerespect of any overdrafts and related liabilities arising from treasury, on a Pro Forma Basis giving effect to the incurrence depository and cash management services or in connection with any automated clearing house transfers of such funds; (v) Debt and the application consisting of the proceeds thereof, with the financial covenants set forth in guaranties permitted by Section 7.13 5.02(c); (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(dvi) Debt of Foreign Subsidiaries owing to third parties in an aggregate outstanding principal amount (together with the aggregate outstanding principal amount of all other Debt of Foreign Subsidiaries permitted under this subsection (b)) not in excess of $400,000,000 at any time outstanding and Debt of Canadian Subsidiaries of the Borrower under the Canadian Revolving Facility, (vii) Debt constituting purchase money debt and Capitalized Lease obligations (not otherwise included in subclause (ii) above) in an aggregate outstanding amount not in excess of $75,000,000, (viii)(x) Debt in respect of Hedge Agreements entered into in the ordinary course of business to protect against fluctuations in interest rates, foreign exchange rates and commodity prices and (y) Debt arising on and after the Petition Date under the Credit Card Program, provided that the aggregate amount of Debt in respect of (A) Secured Hedge Agreements and Secured Credit Card Obligations shall not exceed $50,000,000 at any time outstanding and (B) Hedge Agreements subject to Liens permitted under Section 5.02(a)(vi) shall not exceed $75,000,000 at any time outstanding, (ix) indebtedness which may be deemed to exist pursuant to any Loan Party that is a Wholly-Owned Subsidiary of Borrower surety bonds, appeal bonds or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the similar obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers incurred in connection with dispositions permitted under Section 7.5;
any judgment not constituting an Event of Default, (gx) Debt arising from the honoring by a bank or other financial institution indebtedness in respect of a checknetting services, draft or similar instrument drawn against insufficient funds customary overdraft protections and otherwise in connection with deposit accounts in the ordinary course of business, provided that such Debt is extinguished within two (2xi) Business Days of notice payables owing to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred suppliers in connection with the financing of insurance premiums in the ordinary course of business;
Tooling Program, and (i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(jxii) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), not otherwise permitted hereunder in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the an aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt$20,000,000.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Dana Corp)
Debt. Not, and not suffer or permit Neither the Borrower nor any Group Member toRestricted Subsidiary will incur, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations the Notes or other Indebtedness arising under this Agreement and the Loan Documents or any guaranty of or suretyship arrangement for the Notes or other Indebtedness arising under the Loan Documents;
(b) Debt secured by Liens permitted by Section 7.2(d)existing on the Closing Date which is reflected in the Financial Statements or is disclosed in Schedule 9.01, and any Permitted Refinancings renewals, extensions or refinancings (but not increases) thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated (unrelated to Unrestricted Subsidiaries and other than for borrowed money) incurred in the Obligations under this Agreement and the ordinary course of business in connection with Hydrocarbon transportation, Hydrocarbon purchasing or other Loan Documentssimilar arrangements, provided that (i) such arrangements are disclosed to the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior costs of the financing related to such arrangements are incorporated into the Engineering Reports provided to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation PeriodAgent;
(d) Debt of Borrower to any Loan Party that is under Hedging Agreements with a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower Lender or another Loan Party that is a Wholly-Owned Subsidiary counterparty rated BBB+ by Standard & Poor's Ratings Services or better (or the equivalent rating by another nationally recognized rating service), the notional amounts of which, with respect to commodity Hedging Agreements, do not exceed 80% of Borrower; provided that all 's anticipated oil and/or gas production from producing xxxxx to be produced during the term of such Debt shall be evidenced by Hedging Agreements, entered into as a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant part of its normal business operations as a risk management strategy and/or hedge against changes resulting from market conditions related to the applicable Collateral Document as additional collateral security for the Obligations, Borrower's and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agentits Subsidiaries' operations;
(e) So long as the Threshold Amount equals the Aggregate Commitments and no Borrowing Base Deficiency has occurred which is continuing, additional Debt described on Schedule 7.1 as (including, without limitation, guarantees of Debt of Unrestricted Subsidiaries) with an outstanding aggregate principal amount not at any time in excess of $5,000,000; provided, however, that the Closing Date, and Borrowing Base shall be reduced by the amount of all such Debt outstanding at any Permitted Refinancing thereof;time which is in excess of $1,500,000.
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor Debt secured by the Liens permitted by clause (x) of purchasers in connection with dispositions permitted under Section 7.5the definition of "Excepted Liens"; provided that such Debt is discharged within 180 days of the relevant acquisition or merger;
(g) Debt arising from the honoring by a bank or other financial institution consisting of a check, draft or similar instrument drawn against insufficient funds pledge of investments in Unrestricted Subsidiaries permitted by clause (xii) of the ordinary course definition of business, "Excepted Liens"; provided that such Debt is extinguished within two (2) Business Days of notice recourse solely to Borrower or the relevant Subsidiary of its incurrenceinvestment so pledged;
(h) Debt incurred in connection with loans and advances between the financing of insurance premiums in Restricted Subsidiaries, to any Restricted Subsidiary from the ordinary course of businessBorrower and to the Borrower from any Restricted Subsidiary;
(i) guaranties Debt approved by Borrower the Majority Lenders which is subordinated on terms satisfactory to the Majority Lenders to the payment of the Indebtedness (with the Borrowing Base in effect from time to time being reduced by an amount equal to any effect upon the Borrowing Base occasioned by such subordinated Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof in the judgment of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outsMajority Lenders), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt.
Appears in 1 contract
Debt. NotThe Borrower shall not, and shall not suffer or permit any Group Member of its Subsidiaries to, at any time create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations Debt under this Agreement and the other Loan Related Documents;
(b) Debt secured by Liens permitted by of the Borrower incurred pursuant to the First Mortgage Indenture and certain loan agreements and promissory notes identified on Exhibit D prior to or as of the Closing Date, so long as before and immediately after the Closing Date, the Borrower and its Subsidiaries are in compliance with Section 7.2(d), 7.14 and any Permitted Refinancings thereof; provided that the aggregate principal amount no Event of all such Debt at any time outstanding shall not exceed CDN$1,000,000Default would otherwise be caused thereby;
(c) Additional Debt which is subordinated to of the Obligations Borrower or any Subsidiary incurred after the Closing Date (including, without limitation, additional Debt under this Agreement the First Mortgage Indenture or the loan agreements and promissory notes identified on Exhibit D), so long as before and immediately after the other Loan Documents, provided that (i) the holder(s) incurrence of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereofDebt, (ii) the Borrower and its Subsidiaries shall are in compliance with Section 7.14 and no Event of Default would otherwise be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Periodcaused thereby;
(d) Debt of the Borrower arising under any Hedging Transaction in accordance with Xxxxxxxx’s Hedging Contract Policies covering a notional amount not to any Loan Party that is a Wholly-Owned Subsidiary exceed the face amount of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agentoutstanding Debt;
(e) Debt described on Schedule 7.1 as Guaranties of any Subsidiary of the Closing Date, and Borrower of obligations of the Borrower arising under any Permitted Refinancing thereofHedging Transaction;
(f) Contingent Obligations arising with respect to customary indemnification Guaranties by the Borrower of various obligations in favor of purchasers any of its Subsidiaries in connection with dispositions any transaction arising in connection with its ordinary course of business as conducted on the Closing Date or as otherwise permitted under to be conducted pursuant to Section 7.5;7.04; and
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements Guaranties of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations Debt permitted by clauses (including earn-outsb), in each case entered into in connection with Permitted Acquisitions (c) or the disposition (d) of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt7.13.
Appears in 1 contract
Samples: Continuing Covenant Agreement (New Jersey Resources Corp)
Debt. Not, and (a) The Borrower shall not suffer or permit any Group Member to, create, incur, assume or suffer to exist any DebtDebt (i) that is secured by any Lien that is not permitted by Section 5.07, except for (ii) that does not arise or exist under the following Debt Existing Credit Agreement, (iii) that does not arise or exist under this Credit Agreement or (iv) that is not in existence as of the Closing Date and set forth on Schedule 5.17 hereto; provided, however, that the Borrower and/or Loan Party Subsidiaries:
may (A) renew, ------------- -------- ------- refinance or extend any Debt originally permitted to be created, incurred or assumed or permitted to exist pursuant to this subsection (a) Obligations under this Agreement and the other Loan Documents;
so long as such renewed, refinanced or extended Debt (by) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior no less favorable to the incurrence Borrower than the Debt originally issued (including, without limitation, any shortening of the final maturity or average life to maturity or requiring any payment to be made sooner than originally scheduled or any increase in the interest rate applicable thereto or any change to any subordination provision thereof) and (z) matures no earlier than six months after the Termination Date, (iiB) the Borrower and its Subsidiaries shall be enter into Hedging Agreements, (C) incur Debt in compliance, on a Pro Forma Basis giving effect to the incurrence respect of such Debt and the application trade letters of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds credit in the ordinary course of business, (D) incur intercompany Debt to the extent not otherwise prohibited by this Credit Agreement, provided that such intercompany Debt is extinguished within two shall be fully subordinated to the Obligations, on terms and conditions reasonably satisfactory to the Agents and (2E) Business Days incur additional Debt after the date hereof in respect of notice uncommitted, unsecured lines of credit in an aggregate amount not to exceed $25,000,000 at any time outstanding and (F) Guarantee Obligations in respect of Debt of Subsidiaries permitted to be incurred by such Subsidiaries under the immediately following subsections (b)(i), (b)(iii) and (b)(iv) (provided that with respect to Debt incurred pursuant to subsection (b)(iv) below, such Guarantee Obligations may exist only to the extent the Borrower provided a Guarantee of such Debt as of the Closing Date).
(b) Except for Debt existing as of the Closing Date and set forth on Schedule 5.17, the Borrower shall not permit any Subsidiary to create, ------------- incur, assume or suffer to exist any Debt except for (i) Debt owed by a Domestic Subsidiary to the Borrower or the relevant another Domestic Subsidiary of its incurrence;
the Borrower, (hii) Debt deemed incurred in connection with a Permitted Receivables Financing permitted under Section 5.10; (iii) Debt of Subsidiaries arising in connection with the financing Summerville City IRB and the Catoosa Co. IRB; and (iv) renewals, refinancings and extentions of insurance premiums Debt outstanding on the Closing Date in the ordinary course of business;
(i) guaranties by Borrower same or lesser principal amount of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case then outstanding relating thereto so long as such renewed, refinanced or extended Debt is permitted under this Section 7.1;
on terms and conditions no less favorable to such Subsidiary than the Debt originally issued (j) Debt arising from agreements including, without limitation, any shortening of the final maturity or average life to maturity or requiring any payment to be made sooner than originally scheduled or any increase in the interest rate applicable thereto or any change to any subordination provision thereof). It is understood and agreed that in the event that any Subsidiary or Subsidiaries of the Borrower provides a Guarantee or Guarantees to any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price Person or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member Persons other than the Borrower will be obligated in respect of Permitted Seller DebtLenders, such Subsidiary or Subsidiaries shall immediately provide equal and ratable Guarantees to the Lenders hereunder.
Appears in 1 contract
Debt. NotThe Borrowers will not, and not suffer or nor will it permit any Group Member Subsidiary to, create, incur, assume incur or suffer to exist any Debt, except for the following except:
(i) Debt of the Borrower and/or Loan Party Subsidiaries:
(a) Obligations Borrowers under this Agreement and the other Loan Documents;
(bii) Debt secured by Liens permitted by Section 7.2(d)in existence on the date hereof, and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000as set forth on Schedule 3;
(ciii) trade Debt which is subordinated incurred to the Obligations under this Agreement and the other Loan Documentsacquire goods, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013)supplies, and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt services and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(iiv) guaranties by Borrower Debt incurred to refinance all or a portion of the Debt Loans and/or Letters of any Loan Party that is a Wholly-Owned Subsidiary Credit as long as all proceeds are used to repay the Loans (or apply as cash collateral for outstanding Letters of Borrower or guaranties by any Subsidiary thereof of Credit), the Debt of Borrower is not senior or pari passu in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of any way to the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions Loans or the disposition Letters of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued Credit remaining outstanding and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not mature prior to the maturity of Loans and/or Letters of Credit remaining outstanding;
(v) Debt secured by Liens permitted pursuant to Section 8.8;
(vi) Subordinated Debt of Pacific issued and outstanding as of June 28, 1997 under the 7.25% Subordinated Convertible Debentures originally issued in the amount of $30,000,000 in 1983;
(vii) Debt subordinated to the Obligations, issued with terms and conditions acceptable to the Required Lenders, of up to $50,000,000, provided that no Default exists as of the date of issuance thereof or would occur as a result of such issuance;
(viii) Industrial development bonds up to an aggregate amount not to exceed CDN$2,000,000 $18,000,000, provided no Default exists as of the date of issuance thereof or would occur of such result of such issuance;
(ix) Contingent liabilities incurred in the ordinary course of the Borrowers' business which does not exceed an aggregate principal amount of $3,000,000 at any timeone time outstanding;
(x) Debt and lease obligations for the purpose of acquiring fixed or capital assets, permitted under Section 6.1;
(xi) Debt under operating leases for real or personal property used in the Borrowers' business as presently conducted;
(xii) The endorsement of negotiable instruments for deposit or collection in the ordinary course of the Borrower's business or presently conducted;
(xiii) Intercompany Debt from time to time outstanding; and
(lxiv) Permitted Seller Debt; provided that (i) Debt incurred to finance insurance policies of the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time Borrowers and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debttheir Subsidiaries through insurance companies.
Appears in 1 contract
Debt. Not, and not suffer or permit Neither the Borrower nor any Group Member toof its Subsidiaries will incur, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations the Term Loan Notes or other Indebtedness arising under this Agreement and the Term Loan Documents (including, for the avoidance of doubt, any Indebtedness arising from the exercise of the PIK Option) or any guaranty of or suretyship arrangement for the Term Loan Notes or other Indebtedness arising under the Term Loan Documents;.
(b) Debt secured accounts payable and other accrued expenses, liabilities or other obligations to pay (for the deferred purchase price of Property or services) from time to time incurred in the ordinary course of business which are not greater than 90 days past the date of invoice or delinquent or which are being contested in good faith by Liens permitted by Section 7.2(d), appropriate action and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;for which adequate reserves have been maintained in accordance with GAAP.
(c) intercompany Debt which between the Borrower and any of its Subsidiaries or between Subsidiaries to the extent permitted by Section 9.05(g); provided that such Debt is not held, assigned, transferred, negotiated or pledged to any Person other than the Borrower or one of their Wholly-Owned Subsidiaries, and, provided further , that any such Debt owed by either the Borrower or a Guarantor shall be subordinated to the Obligations Indebtedness on terms set forth in the Term Loan Guaranty Agreement.
(d) endorsements of negotiable instruments for collection in the ordinary course of business.
(e) other Debt not to exceed $10,000,000 in the aggregate at any one time outstanding.
(f) Debt under this Agreement and any Senior Notes existing on the other Loan DocumentsEffective Date or issued after the Effective Date, provided , that (i) at the holder(stime of incurring such Debt, (A) no Default has occurred and is then continuing, (B) no Default would result from the incurrence of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of such Debt (and the application any concurrent repayment of Debt with the proceeds thereofof such incurrence) and (C) the Borrower shall be in compliance with Section 9.01 on a pro forma basis (provided that solely with respect to this provision, with the financial covenants set forth reference to “December 31, 2018” in Section 7.13 (but9.01(b) will be replaced with “June 30, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 20132017”), and (D) the ratio of Total Debt to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination is no greater than 5.25 to 1.00; (ii) such Debt does not have any scheduled amortization prior to one year after the Maturity Date; (iii) such Debt does not mature sooner than one year after the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to Maturity Date and (iv) the incurrence terms of such Debt are not materially more onerous, taken as a whole, than the terms of this Agreement and the application other Term Loan Documents.
(g) Permitted Refinancing Debt (it being understood and agreed that a refinancing of a Debt under any RBL Facility will be governed by Section 9.02(j) and not this clause (g) ).
(h) [Reserved].
(i) [Reserved].
(j) Debt under RBL Facilities in an aggregate principal amount not to exceed at any one time outstanding (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Borrower and Guarantors thereunder) the greater of:
(i) the result of (A) $630,000,000 minus (B) the aggregate amount equal to the greater of (1) Borrowing Base reductions and (2) permanent reductions to the commitments, in each case, under the RBL Facilities, attributable to assets that are Disposed after the Effective Date (so long as the proceeds thereofof such Dispositions are used to repay Debt under the RBL Facilities) plus (C) the aggregate amount equal to the lesser of (1) Borrowing Base increases and (2) permanent increases to the commitments, for in each case, under the RBL Facilities, attributable to assets of the Borrower and its Subsidiaries after the Effective Date; provided, that in no event shall this clause (i) exceed $630,000,000; and
(ii) the sum of (A) the most recently ended Computation Period established Borrowing Base under the RBL Facilities plus (B) any or all of the following which is applicable (but without duplication): (1) the amount of any Borrowing Base Deficiency and (2) any Revolving Credit Exposures in excess of the Aggregate Maximum Credit Amounts (as defined in the RBL Credit Agreement in effect as of the date hereof) resulting from a reduction of the Aggregate Maximum Credit Amounts (as defined in the RBL Credit Agreement in effect as of the date hereof); provided that after giving pro forma effect to any such Debt to be incurred on any date of determination (other than any Debt under any RBL Facility incurred in exchange for, or proceeds of which are used to replace or refinance, all or any Debt outstanding under any other RBL Facility), the Borrower’s ratio of First Lien Debt to EBITDA (as such ratio is recomputed on such date of determination using (a) First Lien Debt outstanding on such date of determination and (b) EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available, ) shall not be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
greater than: (i) guaranties by Borrower of 3.50 to 1.00, at any time during the Debt of period from and including the Effective Date through December 31, 2016, (ii) 3.25 to 1.00, at any Loan Party that is a Wholly-Owned Subsidiary of Borrower time during the fiscal quarter ending Xxxxx 00, 0000, (xxx) 3.00 to 1.00, at any time during the fiscal quarter ending June 30, 2017 and (iv) 2.50 to 1.00, at any time on or guaranties by any Subsidiary thereof of after July 1, 2017. Notwithstanding the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of foregoing, if the Borrower or is not permitted to incur Debt under RBL Facilities based on the ratios of First Lien Debt to EBITDA set forth above, it may borrow up to $30 million at any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;time outstanding under RBL Facilities if needed to meet temporary working capital needs.
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller DebtSecured Swap Obligations and Secured Cash Management Obligations.
Appears in 1 contract
Debt. NotNo Restricted Company shall, and not suffer directly or permit any Group Member toindirectly, create, incur, assume or suffer to exist any direct, indirect, fixed, or contingent liability for any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesother than:
(a) Obligations under this Agreement and the other Loan Documents;The Obligation; AMENDED AND RESTATED 364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT
(b) Existing Debt;
(c) Debt secured arising under Facility A;
(d) Debt incurred by Liens any Restricted Company under any Financial Hedge with any Lender or an Affiliate of any Lender;
(e) Debt between Restricted Companies, so long as any such inter-company Debt owed by Borrower to any other Restricted Company is unsecured; or Debt of any Restricted Company to the Receivables Subsidiary; and
(f) Debt of any Restricted Company not otherwise permitted by Section 7.2(d)this SECTION 7.12, so long as (i) no Default or Potential Default exists on the date any such Debt is created, incurred, or assumed or arises after giving effect to such Debt incurrence; and (ii) if such Debt is secured, on the date any such secured Debt is created, incurred, or assumed, the principal amount of such secured Debt when aggregated with the principal amount of all other secured Debt of the Restricted Companies incurred in accordance with this SECTION 7.12(F) does not exceed 10% of the book value of the consolidated assets of the Restricted Companies determined as of the date of, and any Permitted Refinancings thereof; provided that with respect to, the Current Financials and the related Compliance Certificate. Notwithstanding anything in this SECTION 7.12 to the contrary, the aggregate principal amount of all such Debt at of the Restricted Subsidiaries may not exceed, on any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to date of determination, the Obligations under this Agreement and the other Loan Documents, provided that sum of (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf 10% of the Lender on terms and conditions satisfactory to Agent book value of the consolidated assets of the Restricted Companies, determined as of the date of the most-recently delivered consolidated Financial Statements of Borrower and the Lender prior to the incurrence thereofrelated Compliance Certificate, plus (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Existing Debt does of MCI and its Subsidiaries on and after September 14, 1998 (the "MCI Merger Date" under the Existing Agreement) (as renewed, refinanced, or extended but not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtincreased).
Appears in 1 contract
Samples: 364 Day Revolving Credit and Term Loan Agreement (Mci Worldcom Inc)
Debt. NotCreate, and not incur, assume or suffer to exist (or permit any Group Member to, Subsidiary to create, incur, assume or suffer to exist exist) any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(ai) Obligations Debt under this Agreement and the other Loan Documents;,
(bii) Debt secured by Liens permitted by Section 7.2(d), outstanding on the Third Amendment Effective Date and listed on Schedule 5.02(b) to the Disclosure Letter as of such date and any Permitted Refinancings refinancings, refundings, renewals or extensions thereof; provided that the aggregate principal amount of all such Debt is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any time outstanding shall existing commitments unutilized thereunder and the direct or any contingent obligor with respect thereto is not exceed CDN$1,000,000;changed, as a result of or in connection with such refinancing, refunding, renewal or extension,
(ciii) Debt which is subordinated in respect of capital leases (including Debt under any Sale and Leaseback Transaction), synthetic debt obligations, and purchase money obligations for real property or equipment within the limitations set forth in Section 5.02(a)(iii),
(iv) Unsecured Debt of a Subsidiary of a Borrower owed to such Borrower or of one Borrower owed to the Obligations other Borrower, which Debt shall (A) to the extent required by the Agent, be evidenced by promissory notes and (B) be on terms (including subordination terms) acceptable to the Agent,
(v) Guarantees of any Borrower in respect of Debt otherwise permitted hereunder (other than clause (vii) of this Section 5.02(b)) of any other Borrower,
(vi) obligations (contingent or otherwise) existing or arising under this Agreement and the other Loan Documentsany Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the holder(s) ordinary course of such Debt enter into a subordination agreement with Agent on behalf business for the purpose of the Lender on terms hedging its underlying obligations, assets or liabilities, and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party,
(vii) Debt secured by one or more Liens on any real property of any Borrower or any Subsidiary; provided that (A) such Debt is not guaranteed by, or otherwise recourse to, the Borrowers or such Subsidiary and its Subsidiaries (B) the Liens securing such Debt shall attach to no property other than such real property;
(viii) any Production Debt, in an outstanding aggregate amount that does not exceed the applicable Production Company’s (or the applicable Production Companies’) projected receipt of broadcast license fees, co-producer funding commitments, tax credits, government and quasi-government receivables and other similar amounts, and guarantees thereof, and any refinancings, refundings, renewals or extensions thereof; provided that the amount of such Production Debt is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and the direct or any contingent obligor with respect thereto is not changed, as a result of or in connection with such refinancing, refunding, renewal or extension; provided further that guarantees with respect to any Production Debt by any Borrower or any Subsidiary that is not a Production Company shall be unsecured, and
(ix) Debt not contemplated by the above provisions in compliance, on a Pro Forma Basis an aggregate principal amount not to exceed the greater of (A) $100,000,000 and (B) 6.00% of Consolidated Total Assets at any time outstanding; provided that immediately before and after giving effect to the incurrence of such Debt and Debt, the application Borrowers are in pro forma compliance with each of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt5.03.
Appears in 1 contract
Samples: Credit Agreement (Scholastic Corp)
Debt. Not, and not suffer Incur or permit any Group Member to, create, incur, assume or suffer of its Subsidiaries to exist Incur any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesother than:
(ai) Obligations Debt under this Agreement the Loan Documents, the First Lien Loan Documents and the other Second Lien Loan Documents;
(bii) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereof; provided that Capitalized Leases (other than Surviving Debt) not to exceed in the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000$7,500,000;
(ciii) the Surviving Debt;
(iv) unsecured Debt which is subordinated to of the Obligations under this Agreement and the other Loan Documents, provided Parent ("Permitted Parent Debt") that (iA) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf is not subject to any guarantee by any Subsidiary of the Lender on terms and conditions satisfactory to Agent and the Lender Parent, (B) will not mature prior to the date that is ninety-one (91) days after the Termination Date, (C) has no scheduled amortization or payments of principal, (D) does not permit any payments in cash of interest or other amounts in respect of the principal thereof for at least five (5) years from the date of the issuance or incurrence thereof, and (iiE) has mandatory prepayment, repurchase or redemption, covenant, default and remedy provisions customary for senior discount notes of an issuer that is the Borrower parent of a borrower under senior secured credit facilities, taken as a whole; provided, any such Debt shall constitute Permitted Parent Debt only if both before and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to the issuance or incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (butno Default or Event of Default shall have occurred and be continuing, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 it being understood that limit the applicability of the financial covenants therein to Computation Periods ending any capitalized or paid-in-kind interest or accreted principal on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security not constitute an issuance or incurrence of Debt for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agentpurposes of this proviso;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt.
Appears in 1 contract
Samples: Credit Agreement (Welsh Carson Anderson Stowe Viii Lp)
Debt. Not, The Borrower will not and will not suffer cause or permit any Group Member toGuarantor or any Restricted Subsidiary to incur, create, incur, assume or suffer permit to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations under this Agreement and the other Loan DocumentsDebt hereunder or any guaranty of or suretyship arrangement for the Debt hereunder;
(b) Debt secured by Liens permitted by Section 7.2(d)of the Borrower and the Restricted Subsidiaries existing on the date hereof that is reflected in the Financial Statements or is disclosed in Schedule 9.01, and any Permitted Refinancings renewals or extensions (but not increases) thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated accounts payable (for the deferred purchase price of Property or services) from time to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, time incurred in the case ordinary course of business which, if material and greater than 90 days past the Maximum Total Leverage Ratioinvoice or billing date, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth are being contested in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, good faith by appropriate proceedings if reserves adequate under GAAP shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Periodhave been established therefor;
(d) Debt of the Borrower and the Restricted Subsidiaries requiring no scheduled principal payments (whether at stated maturity or by virtue of scheduled amortization, required prepayment or redemption) due until at least one year after the Termination Date and issued under the Indenture or otherwise under agreements containing covenants no more restrictive to any Loan Party that is a Wholly-Owned Subsidiary of the Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note the Restricted Subsidiaries, as the case may be, than the covenants contained in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agentthis Agreement;
(e) Debt described on Schedule 7.1 as that is secured by Liens permitted under Section 9.02(d) and under clause (xv) of the Closing Date, and definition of Excepted Liens which in the aggregate shall not to exceed $25,000,000 outstanding at any Permitted Refinancing thereofone time;
(f) Contingent Obligations arising with respect Debt of the Borrower and the Restricted Subsidiaries (other than Laurel) under Hedging Agreements entered into as a part of its normal business operations as a risk management strategy and/or hedge against changes resulting from market conditions related to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5the Borrower's operations;
(g) Debt arising from as a result of (and to 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 such Debt is extinguished within two (2extent permitted by) Business Days of notice to Borrower or the relevant Subsidiary of its incurrenceSections 9.03(g);
(h) Debt incurred in connection with under the financing of insurance premiums in the ordinary course of business;Revolving Credit Agreement and guaranties by any Guarantor or Laurel thereof; and
(i) guaranties by Borrower Other unsecured Debt of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of and the Debt of Borrower in each case Restricted Subsidiaries (other than Laurel) so long as at the time such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements incurred, and after giving pro forma effect to the incurrence and applications of the Borrower or any Loan Party Subsidiary of proceeds thereof, the Borrower providing for indemnification, adjustment shall be in pro forma compliance with the financial covenants contained in Section 9.12 and Section 9.13 and no Default or Event of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued Default shall have occurred and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtcontinuing.
Appears in 1 contract
Debt. NotThe Borrower shall not, and shall not suffer or permit any Group Member of the other GCI Entities to, create, incur, assume assume, become or be liable in any manner in respect of, or suffer to exist exist, any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiaries:except
(a) Obligations Debt under this Agreement the Loan Papers and the other Loan Documents;
Revolving Credit Agreement, (b) Debt secured by Liens permitted by Section 7.2(dunder the Senior Notes and other Debt in existence on the date hereof as shown on Schedule 5.08a hereto, and renewals, extensions (but not increases), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
refinancings thereof on terms substantially similar thereto and on terms no more restrictive, (c) Debt which is subordinated to the Obligations under this Agreement trade payables incurred and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds paid in the ordinary course of business, provided that such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(hd) Debt permitted to be incurred in connection with as Contingent Liabilities pursuant to Section 7.03 hereof, (e) Debt between the financing of insurance premiums in the ordinary course of business;
Borrower and its Restricted Subsidiaries, (if) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt there exists no Default or Event of Default in existence at the time incurred and none is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided thatcaused thereby, (i) such $5,000,000 in Debt constituting Capital Leases outstanding in the aggregate at any one time, (xii) was not incurred in connection with or in anticipation unsecured subordinated Debt of such Permitted Acquisition the Borrower on terms and conditions acceptable to the Administrative Agent and each Lender, subordinated to the Facility pursuant to the subordination language set forth on Schedule 7.02 hereto, (g) Debt under the Project Agreements, and (yh) is not secured by any Lien created in connection with so long as (i) there exists no Default or in anticipation Event of such Permitted Acquisition or on any property other than that which secured it Default both before such Permitted Acquisition and after giving effect to its incurrence, (ii) the aggregate outstanding maturity of such Debt is later than the Maturity Date, (iii) the weighted average life of such Debt is longer than the weighted average life of the Revolver/Term Loan, (iv) the Term Loan B Agreement contains representations and warranties, conditions precedent, affirmative covenants, negative covenants and events of default substantially similar to the representations and warranties, conditions precedent, affirmative covenants, negative covenants and Events of Default in this Agreement (and in no case may such terms be more restrictive than the terms of this Agreement) and (v) the Borrower has paid in immediately available funds an amendment fee to the Administrative Lender for the benefit of those Lenders that executed and delivered the Ninth Amendment to the Administrative Agent prior to noon (eastern time) on December 17, 2001, such amendment fee to be in an amount equal to 40 basis points on each such executing Lender's pro rata portion of the principal amount of all such the outstanding Revolver/Term Loan, the Borrower and the other GCI Entities may incur senior secured Debt does under the Term Loan B Agreement, and the Term Loan B Obligations, in a maximum principal amount not to exceed CDN$2,000,000 at any time; and
the lesser of (lA) Permitted Seller Debt; provided that $65,000,000, or (iB) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than gross cash purchase price paid by the Borrower will for the acquisition of the assets of WCIC.
SECTION 10. Amendment to Section 7.04. Section 7.04 in Article VII of the Credit Agreement shall be obligated amended and restated in respect of Permitted Seller Debt.its entirety as follows:
Appears in 1 contract
Debt. Not, and not suffer or permit any Group Member to, createCreate, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations Debt under this Agreement and the other Loan Documents;
(b) Debt secured by Liens permitted by Section 7.2(d), outstanding on the date hereof and listed on Schedule 7.03 and any Permitted Refinancings refinancings, refundings, renewals or extensions thereof; provided that the aggregate principal amount of all such Debt is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any time outstanding shall not exceed CDN$1,000,000existing commitments unutilized thereunder;
(c) intercompany Debt which owed between any Subsidiary of the Borrower and the Borrower, provided that the payment of such Debt is subordinated subordinate to the payment of the Obligations pursuant to Section 3.2 of the Guaranty or otherwise in a manner satisfactory to the Administrative Agent;
(d) the Trust Notes;
(e) Subordinated Debt;
(f) obligations in respect of any trade payables or other current operating liabilities not more than 90 days past due, except for such trade payables or other current operating liabilities which (i) are being contested in good faith by appropriate proceedings and adequate reserves therefor have been established and reflected in the financial statements of such Person in accordance with GAAP, or (ii) do not exceed $200,000 in the aggregate outstanding at any time;
(g) so long as there exists no Default both before and after giving effect to any such transaction, obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or arising under this Agreement and the other Loan Documentsany Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the holder(s) 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 Debt enter into Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a subordination agreement with Agent on behalf of the Lender on terms “market view;” and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) such Swap Contract does not contain any provision exonerating the Borrower and non-defaulting party from its Subsidiaries shall be in compliance, obligation to make payments on a Pro Forma Basis giving effect outstanding transactions to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of businessdefaulting party;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements Guaranty Obligations of the Borrower or any Loan Party Subsidiary Guarantor in respect of Debt otherwise permitted hereunder of the Borrower providing for indemnificationor any other Guarantor, adjustment including the Senior Notes and (ii) Guaranty Obligations of purchase price or similar obligations the Borrower in respect of the Trust Guaranties;
(including earn-outs), in each case entered into in connection with Permitted Acquisitions or i) Debt consisting of the disposition Deferred Purchase Price of any business, assets or Stock Acquisition permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(lj) Permitted Seller Debt; provided that so long as there exists no Default before or after giving effect thereto, Debt not otherwise permitted pursuant to clauses (ia) the through (h) above in an aggregate outstanding principal amount not in excess of all such Permitted Seller Debt does not exceed CDN$2,000,000 five percent (5%) of the Borrower’s Net Worth at any time and outstanding, provided the Net Cash Proceeds of any such Debt shall be applied in accordance with Section 2.05(b)(iii) (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debtif applicable).
Appears in 1 contract
Debt. Not, and not suffer or permit Neither the Borrower nor any Group Member toSubsidiary will incur, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations the Notes or other Indebtedness arising under this Agreement and the Loan Documents or any guaranty of or suretyship arrangement for the Notes or other Indebtedness arising under the Loan Documents;
(b) Debt secured by Liens permitted by Section 7.2(d)of the Borrower existing on the Closing Date which is reflected in the Financial Statements or is disclosed in Schedule 9.01, and any Permitted Refinancings renewals or extensions (but not increases) thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated accounts payable for the deferred purchase price of Property or services (other than Trade Payables) from time to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, time incurred in the case ordinary course of business which, if greater than 60 days past the Maximum Total Leverage Ratiodate the invoice is received by Borrower, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth are being contested in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, good faith by appropriate proceedings if reserves adequate under GAAP shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Periodhave been established therefor;
(d) Debt of Borrower owing to any Loan Party that is a Wholly-Owned Subsidiary of the Borrower or Debt of any Loan Party that a Guarantor which is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;Indebtedness.
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereofBorrower under capital leases (as required to be reported on the financial statements of the Borrower pursuant to GAAP) not to exceed $2,000,000;
(f) Contingent Obligations arising Debt of the Borrower under Hedging Agreements made with respect a Person that is made (i) with a Person that is, at the time such Hedging Agreement is made, either a Senior Lender or an Affiliate of a Senior Lender, or (ii) with another investment grade counterparty, provided that the aggregate notional amounts under all such Hedging Agreements do not exceed 80% of Borrower's anticipated oil and/or gas production to customary indemnification obligations in favor be produced during the term of purchasers in connection with dispositions permitted under Section 7.5such Hedging Agreements and that such Hedging Agreements are entered into as a part of its normal business operations as a risk management strategy and/or hedge against changes resulting from market conditions related to the Borrower's and its Subsidiaries' operations;
(g) Debt arising from associated with bonds or surety obligations required by Governmental Requirements in connection with the honoring by a bank or other financial institution operation 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) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;Oil and Gas Properties; and
(h) Debt incurred in connection with of the financing Borrower described on Schedule 9.01(h) and such other Debt of insurance premiums in the ordinary course Borrower related to the acquisition of business;software and licensing rights related thereto that does not exceed $100,000 at any one time outstanding.
(i) guaranties by Borrower of the Debt of The Senior Indebtedness and any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) other Debt arising from agreements of under or otherwise in relation to the Borrower or any Senior Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller DebtDocuments.
Appears in 1 contract
Samples: Subordinated Credit Agreement (Brigham Exploration Co)
Debt. NotCreate, and not incur, assume, guarantee, otherwise become liable for or suffer to exist, or permit any Group Member to, Subsidiary to create, incur, assume assume, guarantee, otherwise become liable for or suffer to exist exist, any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesor any Contingent Obligation other than:
(ai) Obligations Indebtedness under this Agreement and the other Loan DocumentsAgreement;
(b) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated to the Obligations under this Agreement and the other Loan Documents, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower Senior Notes;
(iii) Debt of the Parent and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect an aggregate principal amount not to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Periodexceed $75,000,000;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(giv) Debt arising from as a result of the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds endorsement in the ordinary course of businessbusiness of negotiable instruments in the course of collection;
(v) Debt existing on the date hereof (Debt existing on the date hereof exceeding $25,000,000 in the aggregate is set forth on Exhibit O);
(vi) Debt created by capital leases of property acquired or constructed (including upgrades, reburbishments and renovations) by the Parent or a Subsidiary after the date hereof, provided that the only property subject to such Debt capital lease is extinguished within two (2) Business Days of notice to Borrower the property so acquired, constructed, upgraded, refurbished or the relevant Subsidiary of its incurrencerenovated;
(hvii) Debt incurred securing Liens existing on property at the time of acquisition thereof by the Parent or any Subsidiary and not created in connection with the financing of insurance premiums in the ordinary course of businesscontemplation thereof;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(kviii) Debt of a Loan Party Subsidiary at the time such Subsidiary is merged or consolidated with or into, or acquired by, Parent or any Subsidiary or becomes a Subsidiary and not created in contemplation thereof;
(ix) Debt among the Parent and its Subsidiaries or among Subsidiaries that constitutes a Permitted Investment;
(x) Reserved;
(xi) Debt, including, without limitation, Project Finance Debt, incurred for the purpose of financing all or a part of the Borrower issued purchase price or construction cost of property (including the cost of upgrading, refurbishing or renovating drilling rigs, drillships and outstanding on other vessels and platforms) if (A) the date on which such Subsidiary was acquired by the Borrower or a Subsidiary principal amount of the Borrower in a Debt does not exceed the cost of the property so acquired, constructed, upgraded, refurbished or renovated plus transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, costs related thereto and (iB) such Debt is incurred no later than 12 months after the latest of (x) was not incurred in connection with commencement of commercial operation of the property so acquired, constructed, upgraded, refurbished or in anticipation of such Permitted Acquisition and renovated, (y) is not secured by any Lien created in connection with completion of the construction, acquisition, upgrade, refurbishment or in anticipation renovation of such Permitted Acquisition property and (z) acquisition of such property;
(xii) Any Debt extending, renewing, refinancing, refunding or on replacing any property of the foregoing (other than that which secured it before such Permitted Acquisition Debt permitted by clause (iii), (iv) and (iiix) of this Section 5.02(d)) or Debt described in this Section 5.02(d)(xii), including fees and costs associated therewith, if (1) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 the amount of the Debt being extended, renewed, refinanced, refunded or replaced outstanding at the time of such extension, renewal, refinancing, refunding or replacement, (2) such Debt is not secured by a Lien on any time; and
property in addition to that covered by any Lien then securing the Debt being extended, renewed, refinanced, refunded or replaced, and (l) Permitted Seller Debt; provided that (i3) the aggregate outstanding principal amount average weighted maturity of all such Permitted Seller Debt does is not exceed CDN$2,000,000 at any time and (y) no Group Member other shorter than the Borrower will be obligated in respect average weighted maturity of Permitted Seller Debtthe Debt being extended, renewed, refinanced, refunded or replaced.
Appears in 1 contract
Debt. NotCreate, and not incur, assume or suffer to exist, or permit any Group Member to, of the Restricted Subsidiaries to create, incur, assume or suffer to exist exist, any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesother than:
(a) Obligations Debt under this Agreement and the other Loan DocumentsInitial Facilities in the aggregate amount of up to the equivalent as of the Effective Date in any applicable currency as permitted under the Initial Facilities of US$850,000,000 (whether advanced under any such Initial Facility on the Effective Date or thereafter);
(b) Debt secured by Liens permitted by of the Borrower owed to any Person (other than an Affiliate of the Borrower) to the extent (i) both before and immediately after incurring such Debt, no Default has occurred and is continuing or could reasonably be expected to occur as a result thereof, (ii) immediately after incurring such Debt, the Total Debt to EBITDA Ratio, on a pro forma basis to give effect to such Debt, is less than the maximum Total Debt to EBITDA Ratio required to be maintained pursuant to Section 7.2(d5.16(a) as of the last day of the most recent fiscal quarter for which financial statements are required to have been delivered in accordance with Section 5.06(b), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all (iii) such Debt at has an average life no shorter than the average remaining life of the Debt under the Initial Facilities, (iv) no more than 25% of such Debt (determined as of when such Debt was initially incurred) comes due during any time outstanding twelve month period (so long as Debt under the Facilities are outstanding), (v) the chief financial officer of the Borrower shall have certified (and it shall be true) that both before and immediately after incurring such Debt, (A) the Borrower shall be in compliance with the financial ratios set forth in Section 5.16, and (B) based on the Business Plan of the Borrower most recently delivered to each Facility Agent pursuant to the terms hereof, the Borrower will be in compliance with the financial ratios set forth in Section 5.16 for the periods described in such Business Plan after taking into account the amount, interest rate and repayment schedule of such Debt, and (vi) such Debt shall not exceed CDN$1,000,000have mandatory prepayment provisions more favorable to lenders and note purchasers providing such Debt than the mandatory prepayment provisions under Section 2.01 hereof unless all of the Common Creditors are provided with the benefits of any such more favorable prepayment provisions;
(c) Debt which is subordinated of any Operating Subsidiary to the Obligations under this Agreement and the other Loan Documents, provided that extent (i) (A) the holder(s) aggregate amount of such Debt enter into a subordination agreement with Agent on behalf incurred by all of the Lender on terms Operating Subsidiaries does not exceed US$50 million, and conditions satisfactory (B) both before and after incurring such Debt and until the Borrower’s Obligations under the Facilities have been indefeasibly repaid in frill, the Total Debt to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in complianceEBITDA Ratio, on a Pro Forma Basis giving pro forma basis to give effect to the incurrence of such Debt and the application of the proceeds thereofDebt, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 is less than the applicable Maximum maximum Total Leverage Debt to EBITDA Ratio set forth in required to be maintained pursuant to Section 7.13.2 for 5.16(a) as of the applicable Computation Period), in each case for last day of the most recently ended Computation Period recent fiscal quarter for which financial statements are available (and disregarding the qualifications required to have been delivered in accordance with Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 20135.06(b), and (iiiii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of (A) such Debt is not secured by any Liens and the application is for working capital purposes, or(B) such Debt is secured by Permitted Liens described in clauses (e) and (f) of the proceeds definition thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to Permitted Project Finance Indebtedness by any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of BorrowerProject Subsidiary; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;and
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereofan Obligor (other than a Project Subsidiary) owed to another Obligor (other than a Project Subsidiary);
(f) Contingent Obligations arising with respect Subordinated Debt pledged as Collateral by Holdco to customary indemnification obligations the Collateral Agent pursuant to a first priority security interest in favor of purchasers in connection with dispositions permitted under Section 7.5the Collateral Agent;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt.
Appears in 1 contract
Samples: Common Agreement (Digicel Group LTD)
Debt. NotThe Borrower will not, and not suffer or nor will it permit any Group Member other Credit Party to, incur, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) the Notes or other Obligations arising under this Agreement and the other Loan Documents, or Cash Management Agreements or the Secured Swap Agreements;
(b) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereofunder Capital Leases or that constitutes Purchase Money Indebtedness; provided that the aggregate principal amount of all such Debt described in this Section 9.02(b) at any one time outstanding shall not exceed CDN$1,000,000$50,000,000;
(c) intercompany Debt which 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 under on terms set forth in the Guarantee Agreement;
(d) Debt constituting a Guarantee by a Credit Party of the Obligations;
(e) other unsecured Debt not to exceed in the aggregate at any one time outstanding, the greater of (i) $100,000,000 and (ii) 2.0% of Total Assets;
(i) Debt in respect of unsecured notes existing on the Effective Date and listed on Schedule 9.02(f) and (ii) other Debt in respect of unsecured notes; provided that, with respect to Debt incurred after the Effective Date, (A) no Default or Borrowing Base Deficiency exists at the time of the incurrence of such Debt or would result therefrom (including after giving effect to any automatic reduction of the Borrowing Base pursuant to Section 2.06(e)), (B) after giving pro forma effect to the incurrence of such Debt, (x) the Leverage Ratio does not exceed 3.50 to 1.00 and (y) the Current Ratio is not less than 1.00 to 1.00, (C) such Debt does not require any scheduled amortization of principal or have a maturity date prior to 180 days after the Revolving Credit Maturity Date at the time of the incurrence of such Debt, (D) the covenants and events of default contained in the documentation governing such Debt are (1) in the case of financial covenants, not more restrictive than the financial covenants of this Agreement and the other Loan Documents, provided that Documents and (i2) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratioother covenants and events of default, determining the maximum permissible Maximum Total Leverage Ratio taken as 0.25 less a whole, not more restrictive than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for corresponding terms of this Agreement and the applicable Computation Period), other Loan Documents in each case for as reasonably determined in good faith by the most recently ended Computation Period for which financial statements are available Borrower, (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iiiE) the Fixed Charges Coverage Ratio, on documents governing such Debt do not contain any mandatory prepayment or Redemption provisions (other than customary change of control or asset sale tender offer provisions) which would require a Pro Forma Basis giving effect to the incurrence mandatory prepayment or Redemption of such Debt in priority to the Loans and the application (F) such Debt does not prohibit prior repayment of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) Debt arising from the honoring by which constitutes a bank Permitted Refinancing of Debt outstanding 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) Business Days of notice to Borrower or the relevant Subsidiary of its incurrenceincurred under Section 9.02(f);
(h) Debt incurred or deposits made by the Credit Parties (i) under worker’s compensation laws, unemployment insurance laws or similar 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 financing operation of insurance premiums the Hydrocarbon Interests in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Credit Party that is a Wholly-Owned Subsidiary of Borrower or guaranties assumed in connection with any acquisition permitted by any Subsidiary thereof of the Debt of Borrower in each case Section 9.05 so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements not incurred in contemplation of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnificationsuch acquisition, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided thatthat after giving pro forma effect to such acquisition and the assumption of such Debt, (i) such Debt (x) was the Leverage Ratio does not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition exceed 3.50 to 1.00 and (ii) the aggregate outstanding principal amount of all such Debt does Current Ratio is not exceed CDN$2,000,000 at any time; andless than 1.00 to 1.00;
(lj) Permitted Seller DebtPari Term Loan Debt incurred on or prior to the earlier of (x) May 17, 2024 and (y) the first Term Loan Facility Closing Date; provided that (i) the aggregate outstanding principal amount of all 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 the following: (A) the Borrowing Base then in effect minus the Aggregate Elected Revolving Commitment Amount then in effect, (B) an amount equal to the Aggregate Elected Revolving Commitment Amount at such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (yC) no Group Member other than an amount equal to thirty-three and one-third percent (33-1/3%) of the Borrower will be obligated sum of (1) the Aggregate Elected Revolving Commitment Amount then in respect effect plus (2) the aggregate principal amount of Permitted Seller Pari Term Loan Debt then outstanding (after giving effect to any such incurrence of Permitted Pari Term Loan Debt); and (ii) for the avoidance of doubt, no Permitted Pari Term Loan Debt may be issued or incurred during an Investment Grade Period;
(k) Debt which constitutes a Permitted Refinancing of Debt outstanding or incurred under Section 9.02(j); and
(l) Debt described in clause (k) of the definition of “Debt”.
Appears in 1 contract
Samples: Credit Agreement (PDC Energy, Inc.)
Debt. Not, and not suffer or permit Neither the Borrower nor any Group Member toof its Subsidiaries will incur, create, incur, assume or suffer to exist any Debt, except for the following Debt of the Borrower and/or Loan Party Subsidiariesexcept:
(a) Obligations the Notes or other Indebtedness arising under this Agreement and the Loan Documents or any guaranty of or suretyship arrangement for the Notes or other Indebtedness arising under the Loan Documents;.
(b) accounts payable and other accrued expenses, liabilities or other obligations to pay (for the deferred purchase price of Property or services) from time to time incurred in the ordinary course of business which are not greater than 90 days past the date of invoice or delinquent or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP.
(c) intercompany Debt secured by Liens between the Borrower and any of its Subsidiaries or between Subsidiaries to the extent permitted by Section 7.2(d9.05(g), and any Permitted Refinancings thereof; provided that such Debt is not held, assigned, transferred, negotiated or pledged to any Person other than the Borrower or one of their Wholly-Owned Subsidiaries, and, provided further, that any such Debt owed by either the Borrower or a Guarantor shall be subordinated to the Indebtedness on terms set forth in the Guaranty Agreement.
(d) endorsements of negotiable instruments for collection in the ordinary course of business.
(e) other Debt not to exceed $4,000,000 in the aggregate at any one time outstanding.
(f) Debt under any Senior Notes issued after the Effective Date, provided that (i) the aggregate principal amount of all such Debt outstanding at any time outstanding shall not exceed CDN$1,000,000;
$500,000,000, (cii) at the time of incurring such Debt which (A) no Default has occurred and is subordinated then continuing and (B) no Default would result from the incurrence of such Debt after giving effect to the Obligations under incurrence of such Debt (and any concurrent repayment of Debt with the proceeds of such incurrence), (iii) such Debt does not have any scheduled amortization prior to one year after the Maturity Date, (iv) such Debt does not mature sooner than one year after the Maturity Date, (v) the terms of such Debt are not materially more onerous, taken as a whole, than the terms of this Agreement and the other Loan Documents, provided that and (ivi) the holder(sBorrowing Base is adjusted as contemplated by Section 2.07(f) of such Debt enter into a subordination agreement with Agent on behalf of the Lender on terms and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, (ii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, with the financial covenants set forth in Section 7.13 (but, in the case of the Maximum Total Leverage Ratio, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 less than the applicable Maximum Total Leverage Ratio set forth in Section 7.13.2 for the applicable Computation Period), in each case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to makes any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted prepayment required under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs3.04(c)(iii), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation of such Permitted Acquisition and (y) is not secured by any Lien created in connection with or in anticipation of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller Debt.
Appears in 1 contract
Debt. Not, All Debt represented by the Notes and not suffer or permit any Group Member to, create, incur, assume or suffer to exist any Debt, except the Guarantees is being incurred for proper purposes and in good faith. Based on the following Debt financial condition of the Borrower and/or Loan Party Subsidiaries:
(a) Obligations under this Agreement and Company as of the other Loan Documents;
(b) Debt secured by Liens permitted by Section 7.2(d), and any Permitted Refinancings thereof; provided that the aggregate principal amount of all such Debt at any time outstanding shall not exceed CDN$1,000,000;
(c) Debt which is subordinated Closing Date after giving effect to the Obligations under this Agreement and receipt by the other Loan DocumentsCompany of the proceeds from the sale of the Securities hereunder, provided that (i) the holder(s) of such Debt enter into a subordination agreement with Agent on behalf fair saleable value of the Lender Group Companies’ assets exceeds the amount that will be required to be paid on terms or in respect of the Group Companies’ existing Debts and conditions satisfactory to Agent and the Lender prior to the incurrence thereof, other liabilities (including contingent liabilities) as they mature; (ii) the Borrower present fair saleable value of the assets of the Group Companies is greater than the amount that will be required to pay the probable liabilities of the Group Companies on their respective Debt as they become absolute and mature; (iii) the Group Companies are able to realize upon their assets and pay their Debt and other liabilities (including contingent obligations) as they mature; (iv) the Group Companies’ assets do not constitute unreasonably small capital to carry on their respective businesses as now conducted and as proposed to be conducted including their respective capital needs taking into account the particular capital requirements of the business conducted by the Group Companies, and projected capital requirements and capital availability thereof; and (v) the current cash flow of each of the Group Companies, together with the proceeds the Company would receive, were it to liquidate all of its Subsidiaries shall assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in compliance, on a Pro Forma Basis giving effect respect of its liabilities when such amounts are required to be paid. None of the incurrence of Group Companies intends to incur Debt beyond its ability to pay such Debt as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its Debt). The Company has no knowledge of any facts or circumstances which lead it to believe that it or any other Group Companies will file for reorganization or liquidation under the application bankruptcy or reorganization laws of any jurisdiction within one year from the proceeds thereof, with the financial covenants Closing Date. Except as set forth in Section 7.13 Schedule 6(t) of the Disclosure Schedule, none of the Group Companies has agreed or consented to cause or permit in the future (butupon the happening of a contingency or otherwise) any of its property, whether now owned or hereafter acquired, to be subject to a Lien (other than, in the case of the Maximum Total Leverage Ratioany PRC Operating Subsidiary, determining the maximum permissible Maximum Total Leverage Ratio as 0.25 Liens over property securing an amount less than the applicable Maximum Total Leverage Ratio US$15,000,000). Except as set forth in Section 7.13.2 for Schedule 6(t) of the applicable Computation Period)Disclosure Schedule, none of the Group Companies is a party to, or otherwise subject to any provision contained in, any instrument evidencing Debt of any of the Group Companies, any agreement relating thereto or any other agreement (including, but not limited to, its charter or other organizational document) which limits the amount of, or otherwise imposes restrictions on the incurring of, Debt of the Company (other than, in each the case for the most recently ended Computation Period for which financial statements are available (and disregarding the qualifications in Section 7.13 that limit the applicability of the financial covenants therein to Computation Periods ending any PRC Operating Subsidiary, restrictions on or after March 31, 2013), and (iii) the Fixed Charges Coverage Ratio, on a Pro Forma Basis giving effect to the incurrence of such Debt and where the application of the proceeds thereof, for the most recently ended Computation Period for which financial statements are available, shall be not less than the Fixed Charges Coverage Ratio Requirement for such Computation Period;
(d) Debt of Borrower to any Loan Party that is a Wholly-Owned Subsidiary of Borrower or Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower to Borrower or another Loan Party that is a Wholly-Owned Subsidiary of Borrower; provided that all such Debt shall be evidenced by a global intercompany demand note in form and substance satisfactory to Agent and pledged and delivered to Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner satisfactory to Agent;
(e) Debt described on Schedule 7.1 as of the Closing Date, and any Permitted Refinancing thereof;
(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(g) 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 such Debt is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;
(h) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(i) guaranties by Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of Borrower or guaranties by any Subsidiary thereof of the Debt of Borrower in each case so long as such Debt is permitted under this Section 7.1;
(j) Debt arising from agreements of the Borrower or any Loan Party Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions or the disposition of any business, assets or Stock permitted by this Agreement;
(k) Debt of a Loan Party Subsidiary of the Borrower issued and outstanding on the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting a Permitted Acquisition permitted under Section 7.11(g), together with any Permitted Refinancing thereof; provided that, (i) such Debt (x) was not incurred in connection with or in anticipation minimum threshold amount of such Permitted Acquisition and (y) restriction is not secured by any Lien created in connection with or in anticipation excess of such Permitted Acquisition or on any property other than that which secured it before such Permitted Acquisition and (ii) the aggregate outstanding principal amount of all such Debt does not exceed CDN$2,000,000 at any time; and
(l) Permitted Seller Debt; provided that (i) the aggregate outstanding principal amount of all such Permitted Seller Debt does not exceed CDN$2,000,000 at any time and (y) no Group Member other than the Borrower will be obligated in respect of Permitted Seller DebtUS$15,000,000).
Appears in 1 contract
