Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume or permit to exist any Debt, except: (a) Debt to the Lenders pursuant to the Loan Documents; (b) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated; (c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations; (i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding; (e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and (f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.
Appears in 3 contracts
Samples: Credit Agreement (Alamosa PCS Holdings Inc), Credit Agreement (Alamosa PCS Holdings Inc), Credit Agreement (Texas Telecommunications Lp)
Debt. The Borrower and the Operating Subsidiaries will not, and nor will not it permit any Subsidiary of the Borrower to, incur, create, assume or permit to exist any Debt, except:
(a) Debt to the Lenders pursuant to the Loan Documents;
(b) intercompany Debt between described on Schedule 9.9 to the Disclosure Letter and any extensions, renewals or among refinancings of such existing Debt so long as (i) the principal amount of such Debt after such renewal, extension or refinancing shall not exceed the principal amount of such Debt which was outstanding immediately prior to such renewal, extension or refinancing and (ii) such Debt shall not be secured by any assets other than assets securing such Debt, if any, prior to such renewal, extension or refinancing;
(c) Debt of a Subsidiary Guarantor owed to the Borrower and or another Subsidiary Guarantor; provided that such Debt must according to its terms be fully subordinate in all respects to any of its Operating Subsidiaries such Subsidiary Guarantor’s indebtedness, liabilities or Wholly-Owned Subsidiaries obligations to the Agent and the Lenders pursuant to any Loan Document;
(d) Guarantees and other Debt incurred in the ordinary course of business with respect to surety and appeal bonds, performance and return-of-money bonds, banker’s acceptances and other similar obligations including those of the type described in Section 11.2(f);
(including, without limitation, e) Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: or any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) constituting purchase money Debt (including Capital Lease Obligations) and secured by purchase money LiensLiens permitted by Section 11.2(g), which Debt and Liens are permitted under and meet all of such Debt, in the requirements of clause aggregate, not to exceed at any time an amount equal to fifteen percent (g15.0%) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstandingBorrower’s Tangible Net Worth;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries or any Subsidiary of the Borrower of the type described in clause (l) of the definition of Debt, such Debt, in aggregate principal or principal equivalent amount, not to exceed at any time an amount equal to twenty percent (20.0%) of the Borrower’s Tangible Net Worth;
(g) Debt constituting obligations to reimburse worker’s compensation insurance companies for claims paid by such companies on behalf of the Borrower or any Subsidiary of the Borrower in accordance with the policies issued to the Trustee Borrower or any such Subsidiary;
(h) Debt secured by the Liens permitted by Section 11.2(d) and Section 11.2(e);
(i) unsecured Debt arising under, created by and consisting of Hedge Agreements, provided, (i) such Hedge Agreements shall have been entered into for the Noteholders under purpose of hedging actual risk and not for speculative purposes and (ii) that each counterparty to such Hedge Agreement shall be a Lender (or an Affiliate thereof) or shall be rated at least AA- by Standard and Poor’s Rating Service or Aa3 by Xxxxx’x Investors Service, Inc.;
(j) Debt arising from endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business of the Borrower or a Subsidiary of the Borrower;
(k) Debt consisting of commercial letters of credit and reimbursement obligations therefor (and evidenced and governed byGuarantees of such reimbursement obligations by Subsidiaries of the Borrower) incurred in the Subordinated Guaranteesordinary course of business; providedand
(l) In addition to the Debt described in the foregoing clauses (a) through (k), however, that such debt may Debt (including with respect to standby letters of credit) which does not be initially incurred exceed twenty five percent (and 25%) of the Holdings Senior Notes may not be issued) after August 1, 2000Borrower’s Tangible Net Worth in aggregate principal amount at any time outstanding.
Appears in 3 contracts
Samples: Credit Agreement (Williams Sonoma Inc), Credit Agreement (Williams Sonoma Inc), Credit Agreement (Williams Sonoma Inc)
Debt. The Borrower and the Operating Subsidiaries will shall not, and will not permit any Subsidiary of the Borrower to, incureither directly or indirectly, create, assume assume, incur or permit to exist have outstanding any DebtDebt (including purchase money indebtedness), or become liable, whether as endorser, guarantor, surety or otherwise, for any debt or obligation of any other Person, except:
(a) Debt to the Lenders pursuant to Obligations under this Agreement and the other Loan Documents;
(b) intercompany Debt between or among obligations of the Borrower and any for Taxes, assessments, municipal or other governmental charges;
(c) obligations of its Operating Subsidiaries or Wholly-Owned Subsidiaries the Borrower for accounts payable, other than for money borrowed, incurred in the ordinary course of business business;
(including, without limitation, d) Debt owed by of the Operating Subsidiaries or Borrower to any domestic Wholly-Owned Subsidiaries Subsidiary not to exceed Five Hundred Thousand and 00/100 Dollars ($500,000.00) in the aggregate, or Debt of any domestic Wholly-Owned Subsidiary to the Borrower or another domestic Wholly-Owned Subsidiary not to exceed Five Hundred Thousand and 00/100 Dollars ($500,000.00) in the aggregate; provided that such Debt shall be evidenced by a note in form and substance reasonably satisfactory to the Bank and pledged and delivered to the Bank pursuant to the Loan Documents as additional collateral security for the Obligations, and the obligations under such note shall be Subordinated Debt;
(e) Hedging Obligations incurred in favor of the Bank, an Affiliate thereof or a Person for bona fide hedging purposes and not for speculation;
(f) Capitalized Lease Obligations, provided that the aggregate amount of all such Debt outstanding at any time shall not exceed Fifty Thousand and 00/100 Dollars ($50,000.00) in the aggregate;
(g) Debt for Capital Expenditures incurred after the date of this Agreement not to exceed Five Hundred Thousand and 00/100 Dollars ($500,000.00) during the term of this Agreement;
(h) Debt described on Schedule 9.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(i) other unsecured subordinated Debt, in addition to the Debt listed above, in an aggregate amount outstanding at any time not to exceed Fifty Thousand and 00/100 Dollars ($50,000.00).
(j) any Debt of the Borrower to the Borrower Guarantor or US BioEnergy Corporation so long as such Debt is subordinate to this Loan, is unsecured and not in connection with loans excess of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), Two Million and 00/100 Dollars ($2,000,000) and is subject to the following requirements: any execution and all delivery of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement signed by Guarantor and/or U.S. Bio Energy Corporation in a mutually agreeable form and substance satisfactory similar to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and agreement attached as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 20009.1(j).
Appears in 3 contracts
Samples: Loan and Security Agreement (CHS Inc), Loan and Security Agreement (US BioEnergy CORP), Loan and Security Agreement (US BioEnergy CORP)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower toCreate, incur, assume or suffer to exist, or permit any of its Restricted Subsidiaries to create, incur, assume or permit suffer to exist exist, any Debt, except:
(ai) in the case of the Borrower,
(A) Debt owed to a Wholly Owned Restricted Subsidiary of the Borrower,
(B) other unsecured Debt incurred in the ordinary course of business aggregating not more than $50,000,000 at any time outstanding other than Guaranties or other contingent obligations of the Borrower with respect to any Debt or other obligation of any Unrestricted Subsidiary; provided that (1) the Borrower shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lenders Lender Parties pursuant to Section 5.03 and as though such Debt had been incurred at the Loan Documents;beginning of the four-quarter period covered thereby, as evidenced by a certificate of the chief financial officer (or person performing similar functions) of the Borrower delivered to the Paying Agent demonstrating such compliance and (2) such unsecured Debt ranks junior to or pari passu with the Facilities, and
(bC) intercompany other unsecured Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitationfor the avoidance of doubt, any long-term Debt incurred in connection with a note offering) other than Guaranties or other contingent obligations of the Borrower with respect to any Debt or other obligation of any Unrestricted Subsidiary; provided that (1) the Borrower shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such Debt had been incurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the chief financial officer (or person performing similar functions) of the Borrower delivered to the Paying Agent demonstrating such compliance, (2) such unsecured Debt ranks junior to or pari passu with the Facilities, (3) such unsecured Debt matures, and does not begin to amortize until, more than six months after the Termination Date and (4) the covenants and other material terms of such unsecured Debt are no more restrictive than those set forth in the Loan Documents;
(ii) in the case of any Restricted Subsidiary of the Borrower, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant or to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Wholly Owned Restricted Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a DefaultBorrower; and
(fiii) in the case of the Borrower and its Restricted Subsidiaries,
(A) Debt under the Loan Documents,
(B) the Surviving Debt set forth on Schedule 4.01(s) hereto,
(C) non-recourse Debt of the Borrower and its Restricted Subsidiaries incurred solely to finance Capital Expenditures for the Trustee and the Noteholders under development of Greenfield Projects, (and evidenced and governed byD) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.non-recourse Debt secured by Liens permitted by Section 5.02(a)(iv),
Appears in 2 contracts
Samples: Credit Agreement (Alliance Holdings GP, L.P.), Credit Agreement (Alliance Resource Partners Lp)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower toCreate, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or permit suffer to exist exist, any Debt, exceptDebt other than:
(ai) in the case of the Borrowers,
(A) Debt to of Uniroyal in respect of the Lenders pursuant to Seoul Guaranty, provided that the Loan Documents;U.S. dollar equivalent of the amount of such Debt shall not exceed US$5,000,000,
(bB) intercompany Debt between or among the Borrower and any in respect of its Operating Subsidiaries or Wholly-Owned Subsidiaries Interest Rate Swap Agreements designed to hedge against fluctuations in interest rates incurred in the ordinary course of business and consistent with prudent business practice in an aggregate notional amount not to exceed US$400,000,000 at any time outstanding,
(includingC) Debt in respect of Foreign Exchange Agreements designed to hedge against fluctuations in foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practice in an aggregate notional amount not to exceed US$100,000,000 at any time outstanding, without limitation, and
(D) Debt owed to Crompton Corp. or to a wholly owned Subsidiary of Crompton Corp, provided that, solely with respect to any Crompton A Borrower, Uniroyal, any Guarantor and Uniroyal Chemical Ltd., such Debt (x) shall, to the extent not prohibited by the Operating Subsidiaries or Wholly-Owned Subsidiaries terms of the Borrower Uniroyal Indentures then in effect, constitute Pledged Debt (as defined in the Security Agreement) other than any such Debt owing to any Minor Subsidiary and (y) shall, to the Borrower in connection with loans of proceeds extent not prohibited by the terms of the Loans made by the Borrower to such SubsidiariesUniroyal Indentures then in effect, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement promissory notes in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time Agent and such promissory notes shall be pledged as security for the Obligations under the Loan Documents of the holder thereof and delivered to time the Agent pursuant to the terms of the Security Agreement,
(ii) in the ordinary course case of business any of such Borrower's Subsidiaries (other than any Minor Subsidiary), Debt owed to any Borrower or to a wholly owned Subsidiary of any Borrower, provided that, solely with respect to any Crompton A Borrower, Uniroyal, any Guarantor and Uniroyal Chemical Ltd., such Debt (A) shall, to the extent not prohibited by the terms of the Uniroyal Indentures then in effect, constitute Pledged Debt (as defined in the Security Agreement) other than any such Debt owing to any Minor Subsidiary and (B) shall, to the extent not prohibited by the terms of the Uniroyal Indentures then in effect, be evidenced by promissory notes in form and substance satisfactory to the Agent and such promissory notes shall be pledged as security for the Obligations under the Loan Documents of the holder thereof and delivered to the Agent pursuant to the terms of the Security Agreement,
(iii) in the case of the Borrowers and their respective Subsidiaries (other than any Minor Subsidiary except as provided below),
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed $100,000 in aggregate principal amount the aggregate, together with Debt referred to in clause (C) below, US$100,000,000 at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;outstanding,
(i) existing Debt Capitalized Leases not to exceed in the principal amounts aggregate, together with Debt referred to in clause (B) above, US$100,000,000 at any time outstanding and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money in the case of Capitalized Leases to which any Subsidiary of any Borrower is a party, Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of such Borrower of the requirements of type described in clause (gi) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured "Debt; provided, however, that " guaranteeing the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence Obligations of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders Subsidiary under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.Capitalized Leases,
Appears in 2 contracts
Samples: Credit Agreement (Uniroyal Chemical Co Inc), Credit Agreement (Crompton & Knowles Corp)
Debt. The Borrower and the Operating Subsidiaries will notNot, and will not permit any Subsidiary of the Borrower other Loan Party to, create, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to Obligations under this Agreement and the Lenders pursuant to the other Loan Documents;
(b) intercompany Debt between or among secured by Liens permitted by Section 7.2(d), and extensions, renewals and refinancings thereof; provided that the aggregate amount of all such Debt at any time outstanding shall not exceed $1,125,000;
(i) Debt of any Borrower and to any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course Domestic Subsidiary or Debt of business (including, without limitation, Debt owed by the Operating Subsidiaries or any Wholly-Owned Subsidiaries Domestic Subsidiary to any Borrower or another Wholly-Owned Domestic Subsidiary of any Borrower; provided that at the Borrower to the Borrower in connection with loans written request of proceeds of the Loans made by the Borrower to Agent, such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments a demand note in form and substance reasonably satisfactory to the Administrative Agent which will be and pledged and delivered to Agent (or, prior to the Administrative Agent Discharge of First Lien Obligations, second) pursuant to the Guarantee and Collateral Agreement as additional collateral security for the benefit of the Administrative Agent Obligations, and the Lenders and, if payable by the Borrower, obligations under such demand note shall be subordinated to the Obligations hereunder in a manner reasonably satisfactory to Agent; and (ii) Debt owing by Foreign Subsidiaries to Borrowers advanced for working capital and other general corporate purposes of Foreign Subsidiaries in an aggregate amount which, together with the aggregate amount of equity contributions to Foreign Subsidiaries made pursuant to a subordination agreement and in form and substance satisfactory to the Administrative Agentaccordance with Section 7.11(a)(iii), provided, however, that temporary advances made from time to time in the ordinary course of business does not to exceed $100,000 in aggregate principal amount 5,625,000 at any time owing outstanding, (provided, such Debt in excess of $500,000 in the aggregate under this clause (ii) shall be evidenced by any Operating Subsidiary notes, and the originals of such notes shall be pledged and delivered shall be delivered to Agent (or Wholly-Owned Subsidiary of the Borrower prior to the Borrower shall not be required Discharge of First Lien Obligations, delivered to be so evidenced, pledged or subordinatedFirst Lien Agent as contractual representative for purposes of perfection for the Agent and Lenders) pursuant to the Guarantee and Collateral Agreement as additional collateral security for the Obligations);
(cd) unsecured Debt Hedging Obligations incurred to satisfy Borrowers’ obligations under the Interest Rate Protection Agreements required to be maintained Section 6.9 and other Hedging Obligations provided by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the ObligationsFirst Lien Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(ie) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings 7.1 as of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(iif) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of First Lien Obligations in accordance with the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured DebtIntercreditor Agreement; provided, however, that the aggregate principal amount thereof shall not exceed the “Maximum First Lien Principal Amount” (as such term is defined in the Intercreditor Agreement);
(g) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(h) 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 Administrative Borrower or the relevant Subsidiary of its incurrence;
(i) purchase price adjustments in respect of working capital by any Borrower or any of its Subsidiaries in connection with any Permitted Acquisition, so long as the aggregate obligations in respect of such purchase price adjustments would not result in a breach of the limitations set forth in Section 7.11;
(j) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business;
(k) guaranties by Holdings of any Debt of any Borrower or any Wholly-Owned Domestic Subsidiary so long as such Debt of such Borrower or such Subsidiary is permitted under this Section 7.1; and guaranties by any Borrower of the Debt referred to of any Wholly-Owned Domestic Subsidiary or guaranties by any Subsidiary of the Debt of any Borrower, in each case so long as such Debt is permitted under this Section 9.1(d7.1;
(l) shall other unsecured Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,250,000;
(m) Debt consisting of unsecured earn-out obligations incurred pursuant to the consummation of Permitted Acquisitions, so long as (i) the amount of such Debt that is reflected on the balance sheet of any Loan Party as a liability in accordance with GAAP does not exceed $15,000,000 12,500,000 in the aggregate amount for all Loan Parties at any time outstandingoutstanding and (ii) such Debt does not result in payment obligations of the Loan Parties that exceed $3,375,000 in the aggregate in any Fiscal Year;
(en) liabilities Equity Cure Securities comprised of Debt of Holdings of the Borrower type described in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a DefaultSection 7.14.3(b); and
(fo) Debt obligations of the Borrower and its Subsidiaries one or more Loan Parties in respect to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Bank guarantees issued by Commerzbank up to an aggregate amount of 500,000 Euro.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Performance Health Holdings Corp.), Second Lien Credit Agreement (Performance Health Holdings Corp.)
Debt. The (a) Prior to the Investment Grade Rating Date, the Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower its Restricted Subsidiaries to, create, incur, create, assume or permit to exist any Debt, except:except (without limiting the provisions of Section 6.12):
(ai) Debt to the Lenders pursuant to created under the Loan Documents;
(bii) intercompany Debt between or among of the Borrower and or any of its Operating Restricted Subsidiaries or Wholly-Owned Subsidiaries incurred in existing on the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any Availability Date and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described set forth on Schedule 7.10 hereto 6.01, and renewalsextensions, extensions or renewals and refinancings of such Debt which thereof that do not increase the outstanding principal amount thereof;
(iii) Debt of the Borrower or any other Loan Party owing to the Borrower or any of its Restricted Subsidiaries; provided that (A) such Debt shall not have been transferred to any Person other than the Borrower or any of its Subsidiaries and (B) in the case of Debt owed by a Loan Party to a Restricted Subsidiary that is not a Loan Party, such Debt is unsecured and subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(iv) Debt of the Borrower or any other Loan Party owing to Xxxx or any of its Subsidiaries (other than Xxxx XX, the Borrower or any of its Subsidiaries); provided that (A) that such Debt shall not be transferred to any Person other than Xxxx or any of its Subsidiaries and (B) such Debt is unsecured and subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(v) Debt of the Borrower or any of its Restricted Subsidiaries owing to Xxxx or any of its Subsidiaries (other than Xxxx XX, the Borrower or any of its Subsidiaries) that is assumed by the Borrower or such Restricted Subsidiary in connection with any Midstream MLP IPO Transaction or any Midstream MLP Drop-Down Transaction; provided that such Debt shall not be transferred to any Person other than Xxxx or any of its Subsidiaries;
(vi) to the extent constituting Debt, obligations of the Borrower or any of its Restricted Subsidiaries owing to Xxxx or any of its Subsidiaries (other than Xxxx XX, the Borrower or any of its Subsidiaries) under any Material Agreement, provided that such obligations (A) shall not constitute indebtedness for borrowed money (including indebtedness evidenced by debt securities) or other obligations primarily intended as a financing obligation and (B) shall not be transferred to any Person other than Xxxx or any of its Subsidiaries;
(vii) Guarantees of Debt permitted under this Section, provided that a Restricted Subsidiary that is not a Loan Party shall not Guarantee Debt that it would not have been permitted to incur under this Section if it were a primary obligor thereon;
(viii) Debt in respect of trade letters of credit issued for the account of the Borrower or any of its Restricted Subsidiaries;
(ix) Debt owed 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; provided that such Debt shall be repaid in full within 30 days of the incurrence thereof;
(x) Debt of the Borrower or any Restricted Subsidiary (A) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capitalized Lease Obligations, but only to the extent that such Debt is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, or (B) assumed in connection with the acquisition of any fixed or capital assets, and any extensions, renewals and refinancings of any of the foregoing; provided that, immediately after giving effect to the creation, incurrence or assumption of any such Debt, which do not shorten the maturity sum, without duplication, of any (I) the aggregate principal amount of such all Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt outstanding in reliance on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of this clause (gx), together with the aggregate principal amount of all Debt outstanding in reliance on Sections 6.01(a)(xi) of the definition of Permitted Liens contained in Section 1.1and 6.01(a)(xii), and (iiiII) additional unsecured the aggregate amount of Attributable Debt under all Sale/Leaseback Transactions then outstanding shall not exceed 15% of the Consolidated Net Tangible Assets as of such time;
(xi) Debt of any Restricted Subsidiary of the Borrower that becomes a Subsidiary after the Availability Date (or of any Person not previously a Subsidiary that is merged or consolidated with or into any such Restricted Subsidiary) in a transaction permitted hereunder, but only to the extent that such Debt exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation); provided that, immediately after giving effect to the creation, incurrence or assumption of any such Debt, the sum, without duplication, of (1) the aggregate principal amount of all Debt outstanding in reliance on this clause (xi), together with the aggregate principal amount of all Debt outstanding in reliance on Sections 6.01(a)(x) and 6.01(a)(xii), and (2) the aggregate amount of Attributable Debt under all Sale/Leaseback Transactions then outstanding shall not exceed 15% of the Consolidated Net Tangible Assets as of such time;
(xii) other Debt of the Borrower and Restricted Subsidiaries; providedprovided that, howeverimmediately after giving effect to the creation, incurrence or assumption of any such Debt, the sum, without duplication, of (1) the aggregate principal amount of all Debt outstanding in reliance on this clause (xii), together with the aggregate principal amount of all Debt outstanding in reliance on Sections 6.01(a)(x) and 6.01(a)(xi), and (2) the aggregate amount of Attributable Debt under all Sale/Leaseback Transactions then outstanding shall not exceed 15% of the Consolidated Net Tangible Assets as of such time;
(xiii) other Debt of Xxxx TGP Operations LP, Xxxx Export Logistics Operations LP, Xxxx North Dakota Pipelines Operations LP and any other Subsidiary that is not wholly owned, directly or indirectly, by the Borrower; provided that the aggregate principal amount of the all Debt referred to outstanding in reliance on this Section 9.1(dclause (xiii) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Defaultexceed $50,000,000; and
(fxiv) Debt of the Borrower or any Restricted Subsidiary owing to the Borrower or any Restricted Subsidiary in respect of cash pooling arrangements entered into in the ordinary course of business among the Borrower and the Restricted Subsidiaries.
(b) From and after the Investment Grade Rating Date, the Borrower will not permit any of its Restricted Subsidiaries that is not a Loan Party to create, incur, assume or permit to exist any Debt, except (without limiting the provisions of Section 6.12):
(i) Debt of any such Restricted Subsidiary owing to the Borrower or any of its Restricted Subsidiaries; provided that such Debt shall not have been transferred to any Person other than the Borrower or any of its Subsidiaries;
(ii) Debt in respect of trade letters of credit issued for the account of any such Restricted Subsidiary;
(iii) Debt owed 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; provided that such Debt shall be repaid in full within 30 days of the incurrence thereof;
(iv) Debt of any such Restricted Subsidiary (A) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capitalized Lease Obligations, provided that such Debt is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, or (B) assumed in connection with the acquisition of any fixed or capital assets, and any extensions, renewals and refinancings of any of the foregoing;
(v) Debt of any such Restricted Subsidiary that becomes a Subsidiary of the Borrower after the Availability Date (or of any Person not previously a Subsidiary that is merged or consolidated with or into any such Restricted Subsidiary) in a transaction permitted hereunder, provided that such Debt exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation);
(vi) to the extent constituting Debt, obligations of any such Restricted Subsidiary owing to Hess or any of its Subsidiaries (other than the Borrower or any of its Subsidiaries) under any Material Agreement, provided that such obligations (A) shall not constitute indebtedness for borrowed money (including indebtedness evidenced by debt securities) or other obligations primarily intended as a financing obligation and (B) shall not be transferred to any Person other than Hess or any of its Subsidiaries (other than the Borrower or any of its Subsidiaries);
(vii) Guarantees of Debt permitted under this Section; provided that a Restricted Subsidiary that is not a Loan Party shall not Guarantee Debt that it would not have been permitted to incur under this Section if it were a primary obligor thereon;
(viii) other Debt of such Restricted Subsidiaries, provided that, immediately after giving effect to the Trustee and creation, incurrence or assumption of any such Debt, the Noteholders under sum, without duplication, of (and evidenced and governed by1) the Subordinated Guaranteesaggregate principal amount of all Debt outstanding in reliance on this clause (viii), (2) the aggregate principal amount of all Debt of the Borrower or any other Loan Party then outstanding that is secured by Liens permitted under Section 6.02(b)(x) and (3) the aggregate amount of Attributable Debt under all Sale/Leaseback Transactions then outstanding shall not exceed 15% of the Consolidated Net Tangible Assets as of such time; providedand
(ix) other Debt of Xxxx TGP Operations LP, howeverHess Export Logistics Operations LP, Xxxx North Dakota Pipelines Operations LP and any other Subsidiary that such debt may is not be initially incurred wholly owned, directly or indirectly, by the Borrower; provided that the aggregate principal amount of all Debt outstanding in reliance on this clause (and the Holdings Senior Notes may ix) shall not be issued) after August 1, 2000at any time exceed $50,000,000.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Hess Midstream Partners LP), Revolving Credit Agreement (Hess Midstream Partners LP)
Debt. The Borrower and the Operating Subsidiaries will notNot, and will not permit any Subsidiary of the Borrower other Loan Party to, create, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to Obligations under this Agreement and the Lenders pursuant to the other Loan Documents;
(b) intercompany Debt between or among secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided that the Borrower and aggregate amount of all such Debt at any time outstanding shall not exceed $1,000,000;
(c) Debt of its Operating Subsidiaries or the Company to any Wholly-Owned Subsidiaries incurred in the ordinary course Subsidiary or Debt of business (including, without limitation, Debt owed by the Operating Subsidiaries or any Wholly-Owned Subsidiaries of the Borrower Subsidiary to the Borrower in connection with loans Company or another domestic Wholly-Owned Subsidiary; provided that, upon the reasonable request of proceeds of the Loans made by the Borrower to Administrative Agent, such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments a demand note in form and substance reasonably satisfactory to the Administrative Agent which will be and pledged and delivered to the Administrative Agent pursuant to the Collateral Documents as additional collateral security for the benefit of the Administrative Agent Obligations, and the Lenders and, if payable by the Borrower, obligations under such demand note shall be subordinated to the Obligations pursuant to of the Company hereunder in a subordination agreement in form and substance manner reasonably satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(cd) unsecured Debt under described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the Interest Rate Protection Agreements required principal amount thereof is not increased in excess of the amount set forth on such Schedule;
(e) the Debt to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if Repaid (so long as such Debt constitutes a part is repaid on the Closing Date with the proceeds of the Obligationsinitial Loans hereunder);
(f) Contingent Liabilities arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 11.4;
(g) Contingent Liabilities listed on Schedule 11.1;
(h) Guaranties by the Company and/or its Subsidiaries in respect of Debt of the Company or its domestic Subsidiaries permitted by this Section 11.1;
(i) existing Debt Hedging Obligations approved by the Administrative Agent, incurred in the principal amounts favor of Administrative Agent, any Lender or any of their Affiliates for bona fide hedging purposes and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Defaultfor speculation; and
(fj) Debt owing to any trust created under a supplemental executive retirement program of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Company.
Appears in 2 contracts
Samples: Credit Agreement (Concur Technologies Inc), Credit Agreement (Concur Technologies Inc)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Restricted Subsidiary of the Borrower to, incur, create, assume or permit suffer to exist any DebtDebt and the Borrower will not permit any Restricted Subsidiary to issue any Preferred Stock, except:
(a) Debt to Indebtedness created hereunder or under the Lenders pursuant to the other Loan Documents;.
(b) intercompany Debt between or among Guarantees by the Borrower or any Guarantor of Debt of the Borrower or any Guarantor, as the case may be, Incurred in accordance with the provisions of this Agreement; provided that in the event that such Debt is a Subordinated Obligation of the Borrower or a Guarantor, the related Guarantee shall be subordinated in right of payment to the Indebtedness arising under the Loan Documents to at least the same extent as such Debt.
(c) Debt of the Borrower owing to and held by any Restricted Subsidiary or Debt of a Restricted Subsidiary owing to and held by the Borrower or any Restricted Subsidiary or between Restricted Subsidiaries to the extent permitted by Section 9.04; provided that any subsequent issuance or transfer of Capital Stock or any other event (including the sale or other transfer of any such Debt to a Person other than the Borrower or a Restricted Subsidiary) that results in any such Debt being owed to a Person other than the Borrower or a Restricted Subsidiary shall be deemed to constitute an Incurrence of such Debt by the Borrower or such Restricted Subsidiary.
(d) The Second Lien Notes and any Guarantees thereof and any Permitted Refinancing Debt in respect thereof; provided that such Debt and the holders thereof shall be at all times subject to and in compliance with the Intercreditor Agreement.
(e) Debt of its Operating Subsidiaries a Person that becomes a Restricted Subsidiary or Whollyis acquired by or merged into the Borrower or a Restricted Subsidiary in accordance with the provisions of this Agreement outstanding on the date on which such Person became a Restricted Subsidiary or was acquired by or merged into the Borrower or a Restricted Subsidiary, other than Debt Incurred (i) to provide all or any portion of the funds utilized to consummate the transaction (or related series of transactions) pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by or merged into the Borrower or a Restricted Subsidiary or (ii) otherwise in connection with, or in contemplation of, such acquisition, so long as at the time such Person becomes a Restricted Subsidiary or is acquired by or merged into the Borrower or a Restricted Subsidiary and after giving effect to the Incurrence of such Debt pursuant to this paragraph (e), the Borrower would have been able to Incur at least $1.00 of additional Debt pursuant to paragraph (n) below.
(f) Debt Incurred by the Borrower or any Restricted Subsidiary pursuant to Capitalized Lease Obligations, Synthetic Lease Obligations, mortgage financings and purchase money obligations, in each case Incurred to finance all or any portion of the purchase price or cost of construction or improvements or carrying costs of property used in the business of the Borrower or such Restricted Subsidiary, and Permitted Refinancing Debt in respect thereof, in an aggregate principal amount not to exceed $60,000,000 at any one time outstanding.
(g) Permitted Acquisition Debt.
(h) Debt in the form of workers’ compensation claims, payment obligations in respect of health or other types of social security benefits, unemployment or other insurance or self-Owned Subsidiaries incurred insurance obligations, reclamation, statutory obligations, bankers’ acceptances, bid, appeal, reimbursement, performance, surety and similar bonds and completion Guarantees provided by the Borrower or a Restricted Subsidiary in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries and any Guarantees or Wholly-Owned Subsidiaries letters of credit functioning as or supporting any of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time foregoing bonds or obligations or other similar obligations in the ordinary course of business and consistent with past practice (in each case, other than for an obligation for money borrowed).
(i) Debt, including Permitted Refinancing Debt, Incurred by a Foreign Subsidiary in an aggregate principal amount not to exceed an amount equal to 10.0% of such Foreign Subsidiary’s Adjusted Consolidated Net Tangible Assets at any time outstanding.
(j) Capital Stock (other than Disqualified Stock) of the Borrower or any of the Guarantors.
(k) Cash-Pay Preferred issued by the Borrower so long as at the time of and after giving effect to the issuance of such Cash-Pay Preferred, the Borrower would have been able to Incur at least $1.00 of additional Debt pursuant to paragraph (n) below.
(l) Debt Incurred after the Closing Date by a wholly-owned Foreign Subsidiary pursuant to vendor financings for the construction of the ATP Octabuoy and related assets and an unsecured Guarantee thereof by the Borrower not to exceed $100,000 250,000,000 in the aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debtoutstanding; provided, however, that in the event that such Foreign Subsidiary shall cease to be a Wholly-Owned Subsidiary, any such Guarantee of such Debt by the Borrower shall be deemed to be an Incurrence of Debt by the Borrower that is not permitted pursuant to this paragraph (l).
(m) Other Debt in an aggregate principal amount outstanding not to exceed the greater of (i) $50,000,000 and (ii) 1.25% of the Borrower’s Adjusted Consolidated Net Tangible Assets, determined on a pro forma basis after giving effect to the Incurrence of such Debt referred and the application of the proceeds thereof.
(n) Other Debt of the Borrower or any Guarantor and the issuance of any Preferred Stock by any Restricted Subsidiary if, at the time of and after giving effect to the Incurrence of such Debt or the issuance of such Preferred Stock, the Consolidated Coverage Ratio is at least 2.50 to 1.00. For purposes of determining compliance with, and the outstanding principal amount of any particular Debt Incurred pursuant to and in compliance with, this Section 9.1(d9.02:
(i) shall not exceed $15,000,000 in aggregate amount at the event an item of that Debt meets the criteria of more than one of the types of Debt described in the first and second paragraphs of this Section 9.02, the Borrower, in its sole discretion, will classify such item of Debt on the date of Incurrence and, subject to clause (ii) below may later classify, reclassify or redivide all or a portion of such item of Debt, in any time outstandingmanner that complies with this Section 9.02;
(eii) liabilities Guarantees of, or obligations in respect of letters of credit supporting, Debt which is otherwise included in the determination of a particular amount of Debt shall not be included;
(iii) if obligations in respect of letters of credit are Incurred pursuant to a credit facility and are being treated as Incurred pursuant to clause (i) of the second paragraph above and the letters of credit relate to other Debt, then such other Debt shall not be included;
(iv) the principal amount of any Disqualified Stock of the Borrower in respect or a Restricted Subsidiary, or Preferred Stock of unfunded vested benefits under any Plan if and a Restricted Subsidiary that is not a Subsidiary Guarantor, will be equal to the extent that greater of the existence maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof;
(v) Debt permitted by this Section 9.02 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this Section 9.02 permitting such liabilities will not constitute, cause or result in a DefaultDebt; and
(fvi) the amount of Debt issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with GAAP. Accrual of interest, accrual of dividends, the amortization of debt discount or the accretion of accreted value, the payment of interest in the form of additional Debt, the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock and unrealized losses or charges in respect of Hedging Obligations (including those resulting from the application of Statement of Financial Accounting Standard No. 133) will not be deemed to be an Incurrence of Debt for purposes of this Section 9.02. The amount of any Debt outstanding as of any date shall be (i) the accreted value thereof in the case of any Debt issued with original issue discount and (ii) the principal amount or liquidation preference thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Debt. If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Debt of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary as of such date (and, if such Debt is not permitted to be Incurred as of such date under this Section 9.02, the Borrower shall be in Default of this Section 9.02). For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided that if such Debt is Incurred to refinance other Debt denominated in a foreign currency, and its Subsidiaries such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Debt does not exceed the principal amount of such Debt being refinanced. Notwithstanding any other provision of this Section 9.02, the maximum amount of Debt that the Borrower may Incur pursuant to this Section 9.02 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Debt Incurred to refinance other Debt, if Incurred in a different currency from the Debt being refinanced, shall be calculated based on the currency exchange rate applicable to the Trustee and currencies in which such Refinancing Debt is denominated that is in effect on the Noteholders under date of such refinancing. This Agreement will not treat (and evidenced and governed by1) unsecured Debt as subordinated or junior to secured Debt merely because it is unsecured or (2) senior Debt as subordinated or junior to any other senior Debt merely because it has a junior priority with respect to the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000same collateral.
Appears in 2 contracts
Samples: Amendment and Restatement and Incremental Loan Assumption Agreement (Atp Oil & Gas Corp), Credit Agreement (Atp Oil & Gas Corp)
Debt. The Borrower and the Operating Subsidiaries Obligors will not, and will not permit any Subsidiary of the Borrower Restricted Subsidiaries to, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to the Lenders pursuant to the Loan Documents;Loans, other Obligations and any guaranty of or suretyship arrangement in respect thereof.
(b) intercompany Debt between or among (i) the Borrower and any of its Operating Subsidiaries Subsidiary Guarantor, (ii) any Restricted Subsidiary that is not a Guarantor and any other Restricted Subsidiary that is not a Guarantor or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of iii) the Borrower or any Subsidiary Guarantor to any Restricted Subsidiary that is not a Guarantor to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes extent permitted by Section 2.109.05(g); provided that such Debt is not held, subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecuredassigned, shall be evidenced by instruments satisfactory to the Administrative Agent which will be transferred, negotiated or pledged to any Person other than the Administrative Agent for the benefit of the Administrative Agent and Lenders, the Lenders Borrower or a Subsidiary Guarantor, and, if payable provided further, that any such Debt for borrowed money (including without limitation intercompany receivables or other obligations) owed by either the Borrower, Borrower or any Obligor shall be subordinated to the Obligations pursuant to a subordination agreement on the terms set forth in form the Guarantee and substance satisfactory to Collateral Agreement.
(c) endorsements of negotiable instruments for collection in the Administrative Agent, provided, however, that temporary advances made from time to time ordinary course of business.
(d) Debt of the Borrower or the Restricted Subsidiaries (i) associated with bonds or surety obligations required by Governmental Requirements in connection with the operation of the Oil and Gas Properties in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary and (ii) comprised of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt guarantees of obligations of Restricted Subsidiaries under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt marketing agreements entered into in the principal amounts ordinary course of business and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such constitute Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;for borrowed money.
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its the Restricted Subsidiaries under Capital Leases and Debt incurred to finance the purchase, construction or improvement of such capital assets (excluding real property interests) secured by Liens permitted by Section 9.03(c) in an aggregate principal amount not to exceed $25,000,000. CREDIT AGREEMENT
(f) Permitted Senior Notes and any guarantees thereof incurred after the Effective Date; provided that (i) both before and immediately after giving effect to the Trustee incurrence of such Debt, no Default, Event of Default or Borrowing Base Deficiency has occurred and is continuing or would result therefrom (after giving effect to any concurrent repayment of Debt with the proceeds thereof, the Borrowing Base adjustment under Section 2.07(e) and any prepayment made pursuant to Section 3.04(c)(iii)); (ii) such Debt and any guarantees thereof (A) are on terms and conditions that are not more restrictive, taken as a whole, than those contained in this Agreement and the Noteholders under other Loan Documents, as reasonably determined by the Borrower in good faith, and (B) do not contain financial covenants that are more restrictive than those contained in this Agreement and evidenced the other Loan Documents; (iii) immediately after the incurrence of such Debt, the Borrowing Base shall be adjusted in accordance with Section 2.07(e) and governed byprepayment shall be made to the extent required by Section 3.04(c)(iii); (iv) such Debt does not have any scheduled principal amortization prior to the date that is 180 days after the Maturity Date; (v) such Debt does not mature sooner than the date that is 180 days after the Maturity Date; (vi) the Subordinated Guaranteeseconomic terms of such Debt and any guarantees thereof, taken as a whole, are on market terms for issuers of similar size and credit quality given the then prevailing market conditions as reasonably determined by the Borrower in good faith; provided(vii) both before, howeverand immediately after giving effect to, the incurrence of such Debt and any guarantees thereof, the Pro Forma Net Leverage Ratio shall not exceed 4.00 to 1.00; (viii) such Debt does not have any mandatory prepayment or redemption provisions which would require a mandatory prepayment or redemption thereof in priority to the Obligations; (ix) no Subsidiary or other Person is required to guarantee such Debt unless such Subsidiary or other Person has guaranteed the Obligations pursuant to the Guarantee and Collateral Agreement; (x) if such Debt is senior subordinated Debt, such Debt is expressly subordinate to the payment in full of all of the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent and (xi) the Borrower shall have complied with Section 8.01(o).
(g) Permitted Refinancing Debt and any guarantees thereof, the proceeds of which shall be used concurrently with the incurrence thereof to refinance any outstanding Permitted Senior Notes permitted under Section 9.02(f) or to refinance any outstanding Refinanced Debt, as the case may be; provided that both before and immediately after giving effect to the incurrence of such debt may not be initially incurred Permitted Refinancing Debt (and the Holdings concurrent repayment of Permitted Senior Notes or Refinanced Debt, as the case may be, with the proceeds of such incurrence), no Default, Event of Default or Borrowing Base Deficiency shall have occurred and be continuing or would result therefrom.
(h) Debt in the form of guaranties by the Obligors of Debt of (i) the Borrower or any Subsidiary Guarantor permitted under this Section 9.02 or (ii) other Persons to the extent an Investment would be permitted in such Person under Section 9.05(g).
(i) other Debt in an aggregate principal amount not be issued) after August 1, 2000to exceed $30,000,000 at any one time outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Riviera Resources, LLC), Credit Agreement (Linn Energy, Inc.)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume or permit to exist any Debt, except:
(a) Debt to the Lenders pursuant to the Loan Documents;
(b) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by (i) the Operating Subsidiaries or to Alamosa Finance, (ii) Alamosa Texas to Alamosa Texas LP, and (iii) Wholly-Owned Subsidiaries of the Borrower Borrower, including, without limitation, Alamosa Finance, to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to a subordinated promissory note substantially in the Administrative Agent form of Exhibit F, which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.
Appears in 2 contracts
Samples: Credit Agreement (Alamosa PCS Holdings Inc), Credit Agreement (Alamosa Holdings Inc)
Debt. The Such Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower tocreate, incur, create, assume or permit suffer to exist or be or remain liable for any Debt, exceptDebt of such Borrower or its Subsidiaries other than:
(a) Debt to arising under this Agreement and the Lenders pursuant to the other Loan Documents;,
(b) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred overdrafts extended by such Xxxxxxxx’s Custodian in the ordinary course of business business,
(including, without limitation, c) Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower arising in connection with loans portfolio investments and investment techniques permissible under the Act, consistent with such Borrower’s investment objectives and policies as stated in the Prospectus and SAI (if applicable) and, with respect to Debt of proceeds of a Designated Subsidiary, in accordance with such Designated Subsidiary’s organizational documents, provided that in no event shall such Borrower (i) borrow money or create leverage (not including reverse repurchase agreements) under any arrangement other than from the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted Banks pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory Agreement or on an overnight basis from such Borrower’s Custodian to the Administrative Agent which extent provided in clause (b) hereof or (ii) issue or be or remain liable for or have outstanding any “senior security” (as defined in the Act) other than the Loans, Interfund Loans permitted under this Agreement, for the TALF Borrowers only, TALF Loans permitted under this Agreement, and such other instruments as may be permitted under the Act and the rules and regulations promulgated thereunder. Such Borrower will be pledged not issue or have outstanding any preferred stock, except that if such Borrower is a closed-end investment company it may issue preferred stock to the Administrative Agent for extent permitted by the benefit of the Administrative Agent Act and the Lenders and, if payable rules and regulations promulgated thereunder,
(d) the borrowing of Interfund Loans to the extent permitted by the Borrowerterms of this Agreement,
(e) with respect to TALF Borrowers only, shall be subordinated Debt arising in connection with the TALF Loans, and
(f) with respect to the Obligations pursuant to Designated Subsidiaries of BlackRock Strategic Income Opportunities Portfolio (“SIO”), a subordination agreement in form and substance satisfactory to the Administrative Agentseries of BlackRock Funds V, providedidentified as Special Purpose Vehicles (each an “SPV Designated Subsidiary) on Schedule 4.11 attached hereto (as amended, however, that temporary advances made supplemented or otherwise modified from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and accordance with the terms of Section 8.5) only, Debt arising in connection with credit facilities between each such SPV Designated Subsidiary and provisions of which are not materially one or more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained lenders in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the an aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount 370,000,000 at any time outstanding;
outstanding for all such credit facilities collectively; provided that SIO does not Guarantee, enter into any capital contribution agreements with respect to such Debt (e) liabilities except that, for the avoidance of doubt, the Borrower in respect funding of unfunded vested benefits under any Plan if and one or more capital contributions to be made by SIO to an SPV Designated Subsidiary as a condition to the extent that the existence funding by such lenders of such liabilities will Debt shall not constitutebe deemed to be a capital contribution agreement), cause or result in a Default; and
(f) Debt of the Borrower otherwise provide any credit support for, such Debt, and its Subsidiaries such lenders shall only look to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that assets of such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000SPV Designated Subsidiary to satisfy such Debt.
Appears in 2 contracts
Samples: Credit Agreement (BlackRock Series Fund II, Inc.), Credit Agreement (BlackRock Series Fund II, Inc.)
Debt. The Borrower and the Operating Subsidiaries Credit Parties will not, and will not permit any Subsidiary of the Borrower Restricted Subsidiaries to, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to the Lenders pursuant to the Loan Documents;Loans, other Secured Obligations and any guaranty of or suretyship arrangement in respect thereof.
(b) intercompany Debt between or among (i) the Borrower and any of its Operating Subsidiaries Subsidiary Guarantor, (ii) any Restricted Subsidiary that is not a Guarantor and any other Restricted Subsidiary that is not a Guarantor or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of iii) the Borrower or any Subsidiary Guarantor to any Restricted Subsidiary that is not a Guarantor to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes extent permitted by Section 2.109.05(g); provided that such Debt is not held, subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecuredassigned, shall be evidenced by instruments satisfactory to the Administrative Agent which will be transferred, negotiated or pledged to any Person other than the Administrative Agent for the benefit of the Administrative Agent and Lenders, the Lenders Borrower or a Subsidiary Guarantor, and, if payable provided further, that any such Debt for borrowed money (including without limitation intercompany receivables or other obligations) owed by either the Borrower, Borrower or any Credit Party shall be subordinated to the Secured Obligations pursuant to a subordination agreement on the terms set forth in form the Guaranty and substance satisfactory to Collateral Agreement.
(c) endorsements of negotiable instruments for collection in the Administrative Agent, provided, however, that temporary advances made from time to time ordinary course of business.
(d) Debt of the Borrower or the Restricted Subsidiaries (i) associated with bonds or surety obligations required by Governmental Requirements in connection with the operation of the Oil and Gas Properties in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary and (ii) comprised of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt guarantees of obligations of Restricted Subsidiaries under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt marketing agreements entered into in the principal amounts ordinary course of business and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such constitute Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;for borrowed money.
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its the Restricted Subsidiaries under Capital Leases and Debt incurred to finance the purchase, construction or improvement of such capital assets (excluding real property interests) secured by Liens permitted by Section 9.03(c) in an aggregate principal amount not to exceed $25,000,000.
(f) Permitted Senior Notes and any guarantees thereof incurred after the Effective Date; provided that (i) both before and immediately after giving effect to the Trustee incurrence of such Debt, no Default or Event of Default has occurred and is continuing or would result therefrom (after giving effect to any concurrent repayment of Debt with the proceeds thereof, any Borrowing Base adjustment under Section 2.07(e) and any prepayment made pursuant to Section 3.04(c)(iii)); (ii) such Debt and any guarantees thereof (A) are on terms and conditions that are not more restrictive, taken as a whole, than those contained in this Agreement and the Noteholders under other Loan Documents, as reasonably determined by the Borrower in good faith, and (B) do not contain financial covenants that are more restrictive than those contained in this Agreement and evidenced the other Loan Documents, unless in the case of clause (A) or (B), such more restrictive terms are incorporated into this Agreement, mutatis mutandis, are offered to the Lenders in good faith or are otherwise applicable only after the payment in full of the Loans; (iii) immediately after the incurrence of such Debt, the Borrowing Base shall be adjusted in accordance with and governed byto the extent required by Section 2.07(e) and prepayment shall be made to the extent required by Section 3.04(c)(iii); (iv) such Debt does not have any scheduled principal amortization prior to the date that is 91 days after the Maturity Date; (v) such Debt does not mature sooner than the date that is 91 days after the Maturity Date; (vi) the Subordinated Guarantees; providedeconomic terms of such Debt and any guarantees thereof, howevertaken as a whole, that such debt may not be initially incurred (are on market terms for issuers of similar size and credit quality given the Holdings Senior Notes may not be issued) after August 1, 2000.then prevailing market conditions as reasonably determined by the Borrower in good faith;
Appears in 2 contracts
Samples: Credit Agreement (Northern Oil & Gas, Inc.), Credit Agreement (Northern Oil & Gas, Inc.)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower toCreate, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or permit suffer to exist exist, any Debt, exceptDebt other than:
(ai) in the case of the Borrowers,
(A) Debt to of the Lenders pursuant to Uniroyal Borrower in respect of the Loan Documents;Seoul Guaranty, provided that the U.S. dollar equivalent of the amount of such Debt shall not exceed U.S.$5,000,000,
(bB) intercompany Debt between or among the Borrower and any in respect of its Operating Subsidiaries or Wholly-Owned Subsidiaries Interest Rate Swap Agreements designed to hedge against fluctuations in interest rates incurred in the ordinary course of business and consistent with prudent business practice in an aggregate notional amount not to exceed $400,000,000 at any time outstanding,
(includingC) Debt in respect of Foreign Exchange Agreements designed to hedge against fluctuations in foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practice in an aggregate notional amount not to exceed $100,000,000 at any time outstanding, without limitation, and
(D) Debt owed to Crompton Corp. or to a wholly owned Subsidiary of Crompton Corp, provided that, solely with respect to any Borrower, Guarantor and Uniroyal Chemical Ltd., such Debt (x) shall, to the extent not prohibited by the Operating Subsidiaries or Wholly-Owned Subsidiaries terms of the Borrower Uniroyal Indentures then in effect, constitute Pledged Debt (as defined in the Security Agreement) other than any such Debt owing to any Minor Subsidiary and (y) shall, to the Borrower in connection with loans of proceeds extent not prohibited by the terms of the Loans made by the Borrower to such SubsidiariesUniroyal Indentures then in effect, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement promissory notes in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time Agent and such promissory notes shall be pledged as security for the Obligations under the Loan Documents of the holder thereof and delivered to time the Agent pursuant to the terms of the Security Agreement,
(ii) in the ordinary course case of business any of such Borrower's Subsidiaries (other than any Minor Subsidiary), Debt owed to any Borrower or to a wholly owned Subsidiary of any Borrower, provided that, solely with respect to any Borrower, Guarantor and Uniroyal Chemical Ltd., such Debt (A) shall, to the extent not prohibited by the terms of the Uniroyal Indentures then in effect, constitute Pledged Debt (as defined in the Security Agreement) other than any such Debt owing to any Minor Subsidiary and (B) shall be evidenced by promissory notes in form and substance satisfactory to the Agent and such promissory notes shall be pledged as security for the Obligations under the Loan Documents of the holder thereof and delivered to the Agent pursuant to the terms of the Security Agreement, and
(iii) in the case of the Borrowers and their respective Subsidiaries (other than any Minor Subsidiary except as provided below),
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewalsaggregate, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the together with Debt referred to in this Section 9.1(dclause (C) shall not exceed below, $15,000,000 in aggregate amount 100,000,000 at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.,
Appears in 2 contracts
Samples: Credit Agreement (Uniroyal Chemical Co Inc), Credit Agreement (Crompton & Knowles Corp)
Debt. The Borrower Each of the Parent and the Operating Subsidiaries Borrower will not, and will not permit any Subsidiary of the Borrower its Subsidiaries to, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to the Lenders pursuant to Loans or other Obligations arising under the Loan Documents or any guaranty of or suretyship arrangement for the Loans or other Obligations arising under the Loan Documents;
(b) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts Capital Leases and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries in an aggregate amount not to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guaranteesexceed $10,000,000; provided, howeverany such Debt shall be secured only by the asset acquired in connection with the incurrence of such Debt;
(c) Debt associated with bonds or surety obligations required by Governmental Requirements in connection with the operation of the Oil and Gas Properties;
(d) endorsements of negotiable instruments for collection, deposit or negotiation and warranties of products or services, in each case, incurred in the ordinary course of business;
(e) intercompany Debt between the Borrower and any Wholly-Owned Subsidiary Guarantor or between Wholly-Owned Subsidiary Guarantors 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 a Wholly-Owned Subsidiary Guarantor; and, provided, further, that any such debt Debt owed by either the Borrower or a Wholly-Owned Subsidiary Guarantor shall be subordinated to the Obligations on terms set forth in the Guaranty Agreement;
(f) Second Lien Term Debt and any guarantees thereof, the principal amount of which does not exceed in the aggregate, at the time any such Debt is incurred, an amount equal to the product of two (2) multiplied by the Borrowing Base then in effect (prior to giving effect to any reduction of the Borrowing Base pursuant to clause (vii) below); provided that: (i) such Debt shall be at all times subject to the Intercreditor Agreement and the Obligations shall be secured on a senior priority basis to such Debt; (ii) the portion of the non-default cash interest rate on the outstanding principal amount of such Debt comprised of the LIBOR floor plus the applicable margin does not exceed (A) 11% per annum in the case of the Tranche A Loans and (B) 12% per annum in the case of the Tranche B Loans, and the portion of the non-default PIK interest rate on the outstanding principal amount of such Debt does not exceed (Y) 4% per annum in the case of the Tranche A Loans and (Z) 0% per annum in the case of the Tranche B Loans; (iii) such Second Lien Term Debt does not have any scheduled principal amortization; (iv) such Second Lien Term Debt does not mature sooner than the date which is ninety-one (91) days after the Maturity Date; (v) both before and immediately after giving effect to the incurrence of any such Debt after the Effective Date, no Default, Event of Default or Borrowing Base Deficiency exists or would exist after giving effect to any concurrent repayment of Debt with the proceeds of such incurrence, if any); (vi) the net cash proceeds of the incurrence thereof shall be used to provide working capital for lease acquisitions, for exploration and production operations and for development (including the drilling and completion of producing xxxxx), for acquisitions and Investments permitted hereunder and for funding general corporate purposes; and (vii) the Borrowing Base then in effect shall be adjusted to the extent required by Section 2.07(f) and the Borrower shall make any prepayment required by Section 3.04(c); for purposes of clarification, any Second Lien Term Debt incurred under this Section 9.02(f) which is repaid may not be initially incurred reborrowed under this Section 9.02(f);
(g) Permitted Refinancing Debt and any guarantees thereof, the proceeds of which shall be used concurrently with the incurrence thereof to refinance the outstanding Second Lien Term Debt permitted under Section 9.02(f) or to refinance the outstanding Refinanced Debt, as the case may be; provided that (i) the Borrower shall have furnished to the Administrative Agent and the Lenders copies of the final executed versions of the definitive documents therefor, (ii) both before and immediately after giving effect to the incurrence of such Permitted Refinancing Debt (and any concurrent repayment of Second Lien Term Debt or Refinanced Debt, as the Holdings Senior Notes case may be, with the proceeds of such incurrence), no Default or Event of Default shall occur and be continuing or would result therefrom, and (iii) the Borrowing Base then in effect shall be adjusted to the extent required by Section 2.07(f), and the Borrower shall make any prepayment required by Section 3.04(c)(iii); for purposes of clarification, any Permitted Refinancing Debt incurred under this Section 9.02(g) which is repaid may not be issuedreborrowed under this Section 9.02(g); and
(h) after August 1, 2000Guarantees by the Parent and its Subsidiaries of Debt of the Borrower or any Wholly-Owned Subsidiary Guarantor otherwise permitted hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Parsley Energy, Inc.), Credit Agreement (Parsley Energy, Inc.)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of Neither the Borrower to(nor following the Parent MLP IPO, the Parent MLP) nor any Restricted Subsidiary will incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to the Lenders pursuant to 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;
(b) intercompany Debt between or among of the Borrower and its Restricted Subsidiaries existing on the Closing Date that is reflected in the Financial Statements or on Schedule 9.02(b), and any refinancings, renewals or extensions (but not increases) thereof;
(c) accounts payable (for the deferred purchase price of its Operating Subsidiaries Property or Wholly-Owned Subsidiaries 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;
(includingd) Debt under Capital Leases (as required to be reported on the financial statements of the Borrower pursuant to GAAP) not to exceed $5,000,000;
(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 among the Borrower, without limitationthe Parent MLP and any Restricted Subsidiary or between Restricted Subsidiaries to the extent permitted by Section 9.05(h); provided that such Debt is not held, assigned, transferred, negotiated or pledged to any Person other than the Borrower or one of the Guarantors, and, provided further, that any such Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of either the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, or a Guarantor shall be subordinated to the Obligations pursuant to a subordination agreement Indebtedness on terms set forth in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time Guarantee Agreement;
(g) endorsements of negotiable instruments for collection in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinatedbusiness;
(ch) unsecured purchase money Debt in respect of property acquired by the Borrower (or following the Parent MLP IPO, the Parent MLP) and its Restricted Subsidiaries; provided that the aggregate principal or face amount of all Debt secured under the Interest Rate Protection Agreements required to be maintained by this Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations9.02(h) shall not exceed $5,000,000 at any time;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Subordinate Debt; provided, howeverthat contemporaneously with any issuance or incurrence thereof (i) the Borrowing Base shall be automatically reduced pursuant to and in accordance with Section 2.08(f) and (ii) the Borrower shall make any mandatory prepayment required by Section 2.07(b)(iii), that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstandingif applicable;
(ej) liabilities Permitted Senior Debt; provided, that immediately prior to the issuance or incurrence thereof the Mortgaged Properties shall have a PV9% of not less than the required Minimum Collateral Value; provided further, contemporaneously with any issuance or incurrence thereof (i) the Borrowing Base shall be automatically reduced pursuant to and in accordance with Section 2.08(f) and (ii) the Borrower shall make any mandatory prepayment required by Section 2.07(b) (iii), if applicable;
(k) other Debt not to exceed $10,000,000 in respect of unfunded vested benefits under the aggregate at any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Defaultone time outstanding; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed byl) the Subordinated Guarantees; Preferred Stock. provided, howeverhowever that notwithstanding the forgoing, no Designated Borrowing Base Entity that such debt is not a Guarantor may not be initially incurred incur, create, assume or suffer to exist any Debt other than Debt under Sections 9.02(a), (c), (e) and the Holdings Senior Notes may not be issued) after August 1, 2000(g).
Appears in 1 contract
Samples: Credit Agreement
Debt. The Borrower and the Operating Subsidiaries will notNot, and will not permit any Subsidiary of the Borrower other Loan Party to, create, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to Obligations under this Agreement and the Lenders pursuant to the other Loan Documents;
(b) intercompany Debt between or among secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof;
(c) Debt of the Borrower and Company to any of its Operating Subsidiaries or domestic Wholly-Owned Subsidiaries incurred in the ordinary course Subsidiary or Debt of business (including, without limitation, Debt owed by the Operating Subsidiaries or any domestic Wholly-Owned Subsidiaries of the Borrower Subsidiary to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to Company or another domestic Wholly-Owned Subsidiary; provided that such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments a demand note in form and substance reasonably satisfactory to the Administrative Agent which will be and pledged and delivered to the Administrative Agent pursuant to the Collateral Documents as additional collateral security for the benefit of the Administrative Agent Obligations, and the Lenders and, if payable by the Borrower, obligations under such demand note shall be subordinated to the Obligations pursuant to of the Company hereunder in a subordination agreement in form and substance manner reasonably satisfactory to the Administrative Agent, provided, however, ; and provided further that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower this Section shall not be required apply to be so evidenced, pledged or subordinatedInter-Company/Subsidiary Loans as defined in Section 10.6;
(cd) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Subordinated Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities Hedging Obligations approved by Administrative Agent and incurred in favor of the Borrower in respect of unfunded vested benefits under any Plan if Lender or an Affiliate thereof for bona fide hedging purposes and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; andfor 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) the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the Borrower and its Subsidiaries initial Loans hereunder);
(h) Contingent Liabilities arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 11.5; AND
(i) UP TO $1,500,000 GUARANTY OF DEBT OF RENAISSANCE ALLIANCE INSURANCE SERVICES, LLC, AN UNAFFILIATED AGENCY, SO LONG AS COMPANY ASSIGNS ALL RIGHTS TO PROCEEDS FROM THE DISPOSITION OF PLEDGED SHARES TO LENDER PURSUANT TO THE SECURITY AGREEMENT; AND
(j) other unsecured subordinated Debt, in addition to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; providedDebt listed above, howeverin an aggregate outstanding amount not at any time exceeding $5,000,000, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000annually.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will notNot, and will not suffer or permit any Subsidiary of the Borrower Loan Party to, create, incur, create, assume or permit suffer to exist any Debt, exceptexcept for the following Debt of the Borrower and/or Loan Party Subsidiaries:
(a) Debt to Obligations under this Agreement and the Lenders pursuant to the other Loan Documents;
(b) intercompany Debt between that is unsecured or among secured by Liens permitted by Section 7.2(d); provided that the Borrower and aggregate principal amount of all such Debt at any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business time outstanding shall not exceed $50,000;
(including, without limitation, c) Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to any Loan Party that is a Wholly-Owned Subsidiary of the Borrower in connection with loans or Debt of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to Loan Party that is a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower or another Loan Party that is a Wholly-Owned Subsidiary of the Borrower; provided that all such Debt shall not be required evidenced by a global intercompany demand note in form and substance satisfactory to the Agent and pledged and delivered to the Agent pursuant to the applicable Collateral Document as additional collateral security for the Obligations, and the obligations under such demand note shall be so evidenced, pledged or subordinatedsubordinated to the Obligations hereunder in a manner satisfactory to the Agent;
(cd) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings 7.1 as of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of any Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstandingRefinancing thereof;
(e) liabilities Contingent Obligations arising with respect to customary indemnification obligations in favor of the Borrower purchasers in respect of unfunded vested benefits connection with dispositions permitted under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; andSection 7.4;
(f) 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 the Borrower or the relevant Subsidiary of its incurrence;
(g) Debt incurred in connection with the financing of insurance premiums in the ordinary course of business; and
(h) guaranties by the Borrower of the Debt of any Loan Party that is a Wholly-Owned Subsidiary of the Borrower and its Subsidiaries to or guaranties by any Subsidiary thereof of the Trustee and Debt of the Noteholders Borrower in each case so long as such Debt is otherwise permitted under Section 7.1(a) or (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000b).
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower toCreate, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or permit suffer to exist exist, any Debt, except:
(a) in the case of any Loan Party, (i) Debt in respect of Hedge Agreements required to the Lenders be maintained pursuant to Section 6.15, and such other Hedge Agreements entered into to hedge against fluctuations in interest rates or foreign exchange rates and the Loan Documents;
(b) intercompany Debt between or among the Borrower and any price of its Operating Subsidiaries or Wholly-Owned Subsidiaries metals incurred in the ordinary course of business and consistent with prudent business practice, and (includingii) Debt in respect of any Existing Letter of Credit or any Bank Guarantee to the extent that a Letter of Credit has been issued and is outstanding hereunder to support such Loan Party’s reimbursement obligation in respect of such Existing Letter of Credit or Bank Guarantee;
(b) (i) in the case of any Foreign Subsidiary, without limitationunsecured Debt owed to the European Borrower or Allweiler Group GmbH or to another Foreign Subsidiary which is a Secured Loan Party of which such first Foreign Subsidiary is a direct or indirect Wholly Owned Subsidiary, (ii) in the case of any other Subsidiary of the US Borrower, unsecured Debt owed to the US Borrower or to a Wholly Owned Subsidiary (other than a Foreign Subsidiary) of the US Borrower, (iii) in the case of any Subsidiary of the European Borrower, unsecured Debt owed to the European Borrower or to a Wholly Owned Subsidiary of the European Borrower which is a Secured Loan Party, and (iv) additional unsecured Debt owed by any Loan Party or any of its Subsidiaries to any other Loan Party or any of its Subsidiaries; provided that, in each case, such Debt (A) owed to a US Obligations Guarantor shall constitute Pledged Debt securing the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such SubsidiariesGuaranteed Obligations, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b(B) shall be unsecuredon terms acceptable to the Administrative Agent, (C) shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement promissory notes in form and substance satisfactory to the Administrative Agent, providedand such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreement, howeverand (D) in the case of clause (iv), that temporary advances shall not exceed an aggregate amount of $50,000,000 outstanding at any time less the aggregate amount of equity Investments made from after the Closing Date pursuant to Section 7.06(a)(iv);
(c) in the case of the US Borrower and its Subsidiaries,
(i) Debt under the Loan Documents,
(ii) Debt secured by Liens permitted by Section 7.01(d) not to exceed in the aggregate $20,000,000 at any time to time outstanding,
(iii) unsecured trade payables not overdue by more than 60 days incurred in the ordinary course of business not business, and
(iv) (A) Capitalized Leases, (B) in the case of Capitalized Leases to exceed $100,000 in aggregate principal amount at which any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary is a party, Debt of the US Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
type described in clause (i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, “Debt” guaranteeing the Obligations of such Subsidiary under such Capitalized Leases and (iiiC) additional unsecured other Debt; provided, howeverfor all of clauses (A), that the (B) and (C) in an aggregate principal amount of the Debt referred not to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount 50,000,000 at any time outstandingoutstanding (in the case of Capitalized Leases, as determined in accordance with US GAAP);
(d) Surviving Debt outstanding on the Closing Date without any extension, renewal or refinancing thereof; and
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) unsecured Debt of the US Borrower, so long as (A) such Debt does not mature until at least six months after the Maturity Date and has no scheduled amortization prior to that date, (B) after giving effect to the incurrence of such Debt, the US Borrower and its Subsidiaries the Loan Parties shall be in pro forma compliance with the financial covenants set forth in Section 6.18, (C) at the time of incurrence of such Debt and after giving effect thereto, no Default or Event of Default shall have occurred or be continuing and (D) the documentation governing such Debt contains customary market terms reasonably satisfactory to the Trustee and Administrative Agent, including, without limitation, if such Debt is subordinated Debt, provisions subordinating such Debt to the Noteholders Obligations of the Loan Parties under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Colfax CORP)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to the Lenders pursuant to Notes or other Obligations arising under the Loan DocumentsDocuments or any guaranty of or suretyship arrangement for the Notes or other Obligations;
(b) intercompany Debt between accounts payable and accrued expenses, liabilities or among other obligations to pay the Borrower and any deferred purchase price of its Operating Subsidiaries Property or Wholly-Owned Subsidiaries 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;
(includingc) Debt under Capital Leases not to exceed $1,000,000;
(d) Debt associated with bonds or surety obligations required by Governmental Requirements in connection with the operation of the Oil and Gas Properties;
(e) intercompany Debt between the Borrower and any Subsidiary or between Subsidiaries to the extent permitted by Section 9.05(g); provided that such Debt is not held, without limitationassigned, 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 the Operating Subsidiaries or Wholly-Owned Subsidiaries of either the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, or a Guarantor shall be subordinated to the Obligations pursuant to a subordination agreement on terms set forth in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time Guaranty Agreement;
(f) endorsements of negotiable instruments for collection in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinatedbusiness;
(cg) unsecured Debt under existing on the Interest Rate Protection Agreements required date hereof and disclosed to be maintained the Lenders on Schedule 9.02;
(h) Debt approved by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes the Required Lenders and subordinated to Borrower’s obligations to Lenders in a part of manner acceptable to the ObligationsAdministrative Agent in its sole discretion;
(i) existing other Debt not to exceed $1,000,000 in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of aggregate at any principal of such one time outstanding;
(j) Permitted Senior Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, any guarantees thereof; provided that (iii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount (or accreted value, if applicable) of all Permitted Senior Debt outstanding at any one time (without duplication, and taking into account all concurrent payments or redemptions of Permitted Senior Debt with the Debt referred proceeds of other Permitted Senior Debt, to in this Section 9.1(dthe extent otherwise permitted hereunder) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
300,000,000, (eii) liabilities of the Borrower shall comply with Section 8.01(r); and (iii) the Borrowing Base then in respect of unfunded vested benefits under any Plan if and effect shall be adjusted to the extent required by Section 2.07(e)(iii), and the Borrower shall make any prepayment required by Section 3.04(c)(iii). Upon each such incurrence of Permitted Senior Debt, the Borrower shall be deemed to represent and warrant to the Lenders that both before and immediately after giving effect to the existence incurrence of such liabilities will not constitutePermitted Senior Debt (and any concurrent repayment of other Permitted Senior Debt refinanced with such Permitted Senior Debt then being incurred, cause as the case may be, with the proceeds of such incurrence), no Event of Default shall occur and be continuing or would result in a Defaulttherefrom; and
(fk) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders arising under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Swap Agreements permitted under Section 9.18 hereof.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries Parent will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume assume, or permit to exist any Debt, except:
(a) Debt to the Lenders Agent and Banks pursuant to the Loan DocumentsDocuments and existing Debt described on Schedule 10.1;
(b) intercompany Intercompany Debt owed by the Parent or a Subsidiary to Borrower or loans or advances between Subsidiaries; provided that (i) the obligations of each obligor of such Debt must be subordinated in right of payment to any liability such obligor may have for the Obligations from and after such time as any portion of the Obligations shall become due and payable (whether at stated maturity, by acceleration or among otherwise), the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries hereby agreeing to such subordination, (ii) such Debt must be incurred in the ordinary course of business and on terms customary for intercompany borrowings among Borrower and the Parent or a Subsidiary or must be made on such other terms and provisions as Agent may reasonably require, (includingiii) Borrower shall have granted Agent a Lien on its right, without limitationtitle and interest in and to such Debt and all Liens securing the payment thereof, and (iv) the sum of (A)the aggregate amount of all Debt owed by Insignificant Subsidiaries to Borrower and the Operating other Subsidiaries plus (B) the aggregate amount of all capital contributions to, investments in and purchases of stock, bonds or Wholly-Owned other equity securities of Insignificant Subsidiaries by Parent and the other Subsidiaries shall not exceed the amounts provided for in Section 10.5;
(c) Debt of Parent or any Subsidiary (other than the Borrower Insignificant Subsidiaries) not to exceed Five Hundred Thousand Dollars ($500,000) in the Borrower in connection with loans of proceeds of the Loans made aggregate for Parent and all Subsidiaries at any time outstanding secured by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes purchase money Liens permitted by Section 2.10)10.2;
(d) Debt constituting obligations to reimburse worker's compensation insurance companies for claims paid by such companies on Parent's or a Subsidiary's behalf in accordance with the policies issued to Parent and the Subsidiaries;
(e) Guarantees by Parent of (i) trade accounts payable owed by a Subsidiary, subject to and arising in the following requirements: any and all ordinary course of business, (ii) Debt of a Subsidiary or (iii) operating leases of a Subsidiary entered into in the ordinary course of business; provided that, (A) the Debt guaranteed is otherwise permitted pursuant to this Section 9.1(bhereunder; and (B) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made no Default exists or would result from time to time such Guarantee;
(f) Guarantees incurred in the ordinary course of business with respect to surety and appeal bonds, performance and return-of-money bonds, and other similar obligations not to exceed $100,000 in aggregate principal amount exceeding at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinatedoutstanding One Million Dollars ($1,000,000) in aggregate liability;
(cg) unsecured Debt under arising in connection with interest rate swap, cap, collar or similar agreements entered into in the Interest Rate Protection Agreements required ordinary course of business to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligationsfix or limit Parent's or any Subsidiary's (other than an Insignificant Subsidiary) interest expense;
(ih) Debt of any Person (or any of such Person's subsidiaries) existing at the time such Person becomes a Subsidiary (or is merged into or consolidated with Parent or any of the Subsidiaries), but only to the extent that such Debt was not incurred in the principal amounts and connection with, as otherwise described on Schedule 7.10 hereto and renewals, extensions a result of or refinancings in contemplation of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of Person becoming a Subsidiary (or being merged into or consolidated with Parent or any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured DebtSubsidiary); provided, however, that (i) in no event shall the aggregate principal amount of such Debt outstanding at any time exceed One Million Dollars ($1,000,000) and (ii) immediately after such acquired Person becomes a Subsidiary (or is merged into or consolidated with Parent or any Subsidiary), no Default exists; and
(i) Debts of Parent or any Subsidiary (other than an Insignificant Subsidiary), other than the Debt referred to Debts specifically described in clauses (a) through (h) of this Section 9.1(d) shall 10.1, which in the aggregate for Parent and all Subsidiaries do not exceed Two Hundred Fifty Thousand Dollars ($15,000,000 in aggregate amount 250,000) at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will not, and nor will not it permit any Subsidiary of the Borrower to, incur, create, assume or permit to exist any Debt, except:
(a) Debt to the Lenders pursuant to the Loan Documents;
(b) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by entered into in compliance with Section 8.12, 8.16; provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(ic) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, ;
(iid) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and;
(f) intercompany Debt between or among the Borrower and any of its Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this clause (g) (i) shall not exceed $1,000,000 in aggregate principal amount outstanding, (ii) shall be unsecured, (iii) shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, and (iv) shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent; provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $500,000 in aggregate principal amount at any time owing by any Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to meet the requirements of clause (iii) or clause (iv) preceding;
(g) Debt arising from a depository bank's honoring of a check, draft or similar instrument drawn against an account of the Borrower or its Subsidiaries which does not contain sufficient funds to cover such check, draft or similar instrument, provided that such Debt does not exceed $50,000 in aggregate amount at any time outstanding;
(h) Debt consisting of contingent liabilities of the Borrower or any of its Subsidiaries in respect of loans and advances to officers, directors or employees of the Borrower and its Subsidiaries made in the ordinary course of business and relating to travel, entertainment and relocation expenses and for other purposes in furtherance of the Trustee business of the Borrower and its Subsidiaries, so long as the Noteholders aggregate amount of Debt permitted by this clause (h), together with the principal amount of all Investments outstanding under Section 9.5(j), shall not exceed $ in aggregate amount at any time * outstanding; and
(i) obligations of the Borrower under the Series A Preferred Stock Agreements which are expressly permitted to be incurred and evidenced and governed bypaid in accordance with clause (d), clause (e), clause (f), clause (g) or clause (h) of Section 9.4. Furthermore, the Subordinated Guarantees; provided, however, that such debt may issuance of shares of Series A Preferred Stock shall not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000prohibited by this Section 9.1.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries Parent will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume assume, or permit to exist any Debt, except:
(a) Debt to the Lenders Agent and Banks pursuant to the Loan DocumentsDocuments and existing Debt described on Schedule 10.1;
(b) intercompany Intercompany Debt between owed by the Parent or among a Subsidiary to Borrower; provided that (i) the obligations of each obligor of such Debt must be subordinated in right of payment to any liability such obligor may have for the Obligations from and after such time as any portion of the Obligations shall become due and payable (whether at stated maturity, by acceleration or otherwise), the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries hereby agreeing to such subordination, (ii) such Debt must be incurred in the ordinary course of business and on terms customary for intercompany borrowings among Borrower and the Parent or a Subsidiary or must be made on such other terms and provisions as Agent may reasonably require, (includingiii) Borrower shall have granted Agent a Lien on its right, without limitationtitle and interest in and to such Debt and all Liens securing the payment thereof, and (iv) the sum of (A)the aggregate amount of all Debt owed by Insignificant Subsidiaries to Borrower and the Operating other Subsidiaries plus (B) the aggregate amount of all capital contributions to, investments in and purchases of stock, bonds or Wholly-Owned other equity securities of Insignificant Subsidiaries by Parent and the other Subsidiaries shall not exceed the amounts provided for in Section 10.5;
(c) Debt of Parent or any Subsidiary (other than the Borrower Insignificant Subsidiaries) not to exceed Five Hundred Thousand Dollars ($500,000) in the Borrower in connection with loans of proceeds of the Loans made aggregate for Parent and all Subsidiaries at any time outstanding secured by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes purchase money Liens permitted by Section 2.10)10.2;
(d) Debt constituting obligations to reimburse worker's compensation insurance companies for claims paid by such companies on Parent's or a Subsidiary's behalf in accordance with the policies issued to Parent and the Subsidiaries;
(e) Guarantees by Parent of (i) trade accounts payable owed by a Subsidiary, subject to and arising in the following requirements: any and all ordinary course of business, (ii) Debt of a Subsidiary or (iii) operating leases of a Subsidiary entered into in the ordinary course of business; provided that, (A) the Debt guaranteed is otherwise permitted pursuant to this Section 9.1(bhereunder; and (B) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made no Default exists or would result from time to time such Guarantee;
(f) Guarantees incurred in the ordinary course of business with respect to surety and appeal bonds, performance and return-of-money bonds, and other similar obligations not to exceed $100,000 in aggregate principal amount exceeding at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinatedoutstanding Five Hundred Thousand Dollars ($500,000) in aggregate liability;
(cg) unsecured Debt under arising in connection with interest rate swap, cap, collar or similar agreements entered into in the Interest Rate Protection Agreements required ordinary course of business to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligationsfix or limit Parent's or any Subsidiary's (other than an Insignificant Subsidiary) interest expense;
(ih) Debt of any Person (or any of such Person's subsidiaries) existing at the time such Person becomes a Subsidiary (or is merged into or consolidated with Parent or any of the Subsidiaries), but only to the extent that such Debt was not incurred in the principal amounts and connection with, as otherwise described on Schedule 7.10 hereto and renewals, extensions a result of or refinancings in contemplation of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of Person becoming a Subsidiary (or being merged into or consolidated with Parent or any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured DebtSubsidiary); provided, however, that (i) in no event shall the aggregate principal amount of such Debt outstanding at any time exceed Five Hundred Thousand Dollars ($500,000) and (ii) immediately after such acquired Person becomes a Subsidiary (or is merged into or consolidated with Parent or any Subsidiary), no Default exists; and
(i) Debts of Parent or any Subsidiary (other than an Insignificant Subsidiary), other than the Debt referred to Debts specifically described in clauses (a) through (h) of this Section 9.1(d) shall 10.1, which in the aggregate for Parent and all Subsidiaries do not exceed One Hundred Thousand Dollars ($15,000,000 in aggregate amount 100,000) at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries Company will not, not and will not permit any Restricted Subsidiary of the Borrower to, directly or indirectly, create, assume, incur, createagree to purchase or repurchase or provide funds in respect of, assume or permit to exist otherwise become or be directly or indirectly liable in respect of, by way of Guarantee or otherwise, any Debt, exceptexcept that, subject in any event to the last paragraph of this Section 7.4:
(a) the Company may remain liable in respect of the Debt to evidenced by the Lenders pursuant to the Loan DocumentsSubstitute Notes;
(b) intercompany Debt between or among the Borrower and any of its Operating applicable Restricted Subsidiaries or Wholly-Owned Subsidiaries incurred may remain liable in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all respect of the Debt described as items C(4) and E(1) in Exhibit C, but may not extend, renew, refund or refinance any thereof except as otherwise permitted pursuant to by another provision of this Section 9.1(b) 7.4, provided that on the Effective Date the Debt evidenced by the Existing Notes shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable assumed by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement Company as provided in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinatedSection 1.2;
(c) any Restricted Subsidiary may become and remain liable in respect of unsecured Debt under of such Restricted Subsidiary owing to the Interest Rate Protection Agreements required Company or a Wholly-owned Restricted Subsidiary, and the Company may become and remain liable in respect of Subordinated Debt owing to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;Wholly-owned Restricted Subsidiary; and
(id) existing the Company and any Restricted Subsidiary may become and remain liable in respect of additional Debt in if on the principal amounts and as otherwise described date (the "Incurrence Date") on Schedule 7.10 hereto and renewals, extensions which the Company or refinancings of such Debt which do not increase the outstanding principal amount of Restricted Subsidiary proposes to incur any such Debt, which do not shorten and after giving effect to such incurrence and the maturity substantially concurrent incurrence of any principal of such other Debt and to the terms and provisions substantially concurrent retirement of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which any other Debt and Liens are permitted under and meet all to the application of the requirements proceeds of clause (g) all such Debt, Total Debt shall not exceed 55% of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured DebtTotal Capitalization; provided, however, that the aggregate principal amount of the Debt referred to nothing in this Section 9.1(d7.4(d) shall permit the Company or any Restricted Subsidiary to incur any Restricted Debt on any Incurrence Date unless, after giving effect to any such incurrence and to the substantially concurrent incurrence of any other Restricted Debt and to the substantially concurrent retirement of any Restricted Debt and to the application of the proceeds of all such Restricted Debt, the Restricted Debt Amount shall not exceed $15,000,000 10% of Total Capitalization. For all purposes of this Section 7.4, (i) any Person becoming a Restricted Subsidiary after the date of this Agreement shall be deemed to have incurred all of its then outstanding Debt at the time it becomes a Restricted Subsidiary and (ii) in aggregate amount the event the Company or any Restricted Subsidiary shall extend, renew, refund or refinance any Debt, the Company or such Restricted Subsidiary shall be deemed to have incurred such Debt at any the time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities extension, renewal, refunding or refinancing. The Company will not constitute, cause in any event incur or result in a Default; and
(f) permit to exist any Debt of the Borrower and its Subsidiaries Company to the Trustee and the Noteholders under (and evidenced and governed by) the a Restricted Subsidiary other than Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Debt owing to a Wholly-owned Restricted Subsidiary.
Appears in 1 contract
Samples: Agreement of Assumption and Restatement (Lennox International Inc)
Debt. (i) The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of its Restricted Subsidiaries to, create, incur, assume or directly or indirectly guarantee or in any other manner become directly or indirectly liable for (“incur”) any Indebtedness (including Acquired Debt) or issue any Disqualified Stock if, at the time of and immediately after giving pro forma effect to such incurrence of Indebtedness or issuance of Disqualified Stock, the Debt to Operating Cash Flow Ratio of the Borrower to, incur, create, assume or permit to exist any Debt, except:and its Restricted Subsidiaries is more than 7.0:1.
(aii) Debt Section 5.02(b)(i) will not apply to the Lenders pursuant to incurrence of any of the Loan Documentsfollowing (collectively, “Permitted Indebtedness”):
(A) Indebtedness under this Agreement;
(bB) intercompany Debt between or among the Borrower and Indebtedness of any Restricted Subsidiary consisting of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course a guarantee of business Indebtedness under this Agreement;
(including, without limitation, Debt C) Indebtedness owed by the Operating Subsidiaries or Wholly-any Wholly Owned Subsidiaries of the Borrower Restricted Subsidiary to the Borrower in connection with loans of proceeds of the Loans made or to another Wholly Owned Restricted Subsidiary, or owed by the Borrower to any Wholly Owned Restricted Subsidiary; provided that any such SubsidiariesIndebtedness shall be at all times held by a Person which is either the Borrower or a Wholly Owned Restricted Subsidiary of the Borrower; and provided, further, that upon either (a) the transfer or other disposition of any such Indebtedness to a Person other than the Borrower or another Wholly Owned Restricted Subsidiary or (b) the sale, lease, transfer or other disposition of shares of Capital Stock (including by consolidation or merger) of any such Wholly Owned Restricted Subsidiary to a Person other than the Borrower or another Wholly Owned Restricted Subsidiary, the proceeds incurrence of which loans are used such Indebtedness shall be deemed to be an incurrence that is not permitted by this clause (C);
(D) guarantees by any Restricted Subsidiary that is a Subsidiary Guarantor of any Indebtedness otherwise permitted by this Agreement;
(E) Indebtedness arising with respect to Interest Rate Agreement Obligations incurred for the purposes purpose of fixing or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by Section 2.10the terms of the Agreement to be outstanding;
(F) Purchase Money Indebtedness and Capital Lease Obligations which do not exceed, as determined in accordance with GAAP, $10,000,000 in the aggregate at any one time outstanding;
(G) Indebtedness of the Borrower or any Restricted Subsidiary outstanding on the Effective Date;
(H) any Indebtedness incurred in connection with or given in exchange for the renewal, extension, substitution, refunding, defeasance, refinancing or replacement of any Indebtedness described in clauses (A), subject (B) or (G) above or incurred under the Debt to Operating Cash Flow Ratio pursuant to subsection (i) of this Section 5.02(b) (“Refinancing Indebtedness”); provided that (a) the following requirements: any and all principal amount of such Refinancing Indebtedness shall not exceed the principal amount of the Debt permitted pursuant Indebtedness so renewed, extended, substituted, refunded, defeased, refinanced or replaced (plus the premiums paid in connection therewith and the fees and expenses incurred in connection therewith); (b) the Refinancing Indebtedness shall have a Weighted Average Life to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory Maturity equal to or greater than the Administrative Agent which will be pledged Weighted Average Life to the Administrative Agent for the benefit Maturity of the Administrative Agent Indebtedness being renewed, extended, substituted, refunded, defeased, refinanced or replaced; and the Lenders and(c) with respect to Refinancing Indebtedness of Subordinated Indebtedness, if payable by the Borrower, shall be such new Indebtedness is subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory or the applicable Subsidiary Guarantee, as the case may be, to the Administrative Agent, provided, however, that temporary advances made from time to time in same extent as the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary Indebtedness being refinanced;
(I) Indebtedness of the Borrower in addition to the Borrower shall not be required to be so evidencedthat described in clauses (A) through (H) above, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and any renewals, extensions extensions, substitutions, refinancings or refinancings replacements of such Debt which do not increase the outstanding principal amount of such DebtIndebtedness, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that so long as the aggregate principal amount of the Debt referred all such Indebtedness incurred pursuant to in this Section 9.1(dclause (I) shall does not exceed $15,000,000 in aggregate amount at any one time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.
Appears in 1 contract
Debt. The Neither the Borrower and the Operating nor any of its Subsidiaries will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to : the Lenders pursuant to Notes or other Obligations arising under the Loan Documents or any guaranty of or suretyship arrangement for the Notes or other Obligations arising under the Loan Documents;
; 715347206 14464587 accounts payable and other accrued expenses, liabilities or other obligations to pay (bfor the deferred purchase price of Property or services) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries from time to time incurred in the ordinary course of business (includingwith respect to which no more than 90 days have elapsed since the date of invoice or that are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP; intercompany Debt between the Borrower and any of its Subsidiaries or between Subsidiaries to the extent permitted by Section 9.05(d); provided that such Debt is not held, without limitationassigned, 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 the Operating Subsidiaries or Wholly-Owned Subsidiaries of either the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, or a Guarantor shall be subordinated to the Obligations pursuant to a subordination agreement on terms set forth in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time Guarantee Agreement; endorsements of negotiable instruments for collection in the ordinary course of business not business; Debt of any Obligor in respect of workers’ compensation claims, performance bonds, surety bonds, and appeal bonds issued for its account, in each case in the ordinary course of business, or surety/bonds to exceed $100,000 governmental agencies; Debt incurred under Unsecured Notes and any guarantees by a Guarantor in respect thereof in an aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary that would not cause, as of the Borrower date on which such Debt is incurred, the ratio of Total Net Debt to Adjusted EBITDA to exceed the maximum amount then permitted under Section 9.01(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), (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 required 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 so evidencedcontinuing, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, and provided, howeverfurther, that immediately upon any incurrence of Debt thereunder may permitted by this clause (f), the Borrowing Base then in effect shall be secured if such Debt constitutes a part automatically reduced by an amount equal to 25% of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding aggregate principal amount of such Debt, which do not shorten Debt incurred (calculated at the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all face amount of the requirements Debt incurred without giving effect to any original issue discount) and (b) any Permitted Refinancing Debt in respect thereof; Debt of an Obligor in the form of guarantees and other “Debt” of the type described in clause (g) or clause (h) of the definition of Permitted Liens contained Debt, in Section 1.1each case, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits Debt otherwise permitted under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Defaultthis Section 9.02; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders outstanding under (and evidenced and governed by) the Subordinated GuaranteesNotes; provided, however, that such debt may and 715347206 14464587 other unsecured Debt not be initially incurred (and to exceed $5,000,000 in the Holdings Senior Notes may not be issued) after August 1, 2000aggregate at any one time outstanding.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower its Restricted Subsidiaries to, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to the Lenders pursuant to Loans or other Obligations arising under the Loan Documents or any guaranty of or suretyship arrangement for the Loans or other Obligations arising under the Loan Documents;
(b) intercompany Debt between or among under Capital Leases and purchase money Debt of the Borrower and its Restricted Subsidiaries in an aggregate amount not to exceed $75,000,000; provided, any such Debt shall be secured only by the asset acquired in connection with the incurrence of its Operating Subsidiaries such Debt;
(c) Debt associated with bonds, surety obligations or Wholly-Owned Subsidiaries similar instruments required by Governmental Requirements in connection with the operation of the Oil and Gas Properties;
(d) endorsements of negotiable instruments for collection, deposit or negotiation and warranties of products or services, in each case, incurred in the ordinary course of business business;
(includinge) intercompany Debt between the Borrower and any Wholly-Owned Subsidiary Guarantor or between Wholly-Owned Subsidiary Guarantors to the extent permitted by Section 9.05(g); provided that such Debt is not held, without limitationassigned, transferred, negotiated or pledged to any Person other than the 105 Borrower or a Wholly-Owned Subsidiary Guarantor; and, provided, further, that any such Debt owed by either the Operating Subsidiaries Borrower or a Wholly-Owned Subsidiaries Subsidiary Guarantor shall be subordinated to the Obligations on terms set forth in the Guaranty Agreement;
(f) [Reserved];
(g) unsecured senior or unsecured senior subordinated Debt of the Borrower and any guarantees thereof, so long as after giving pro forma effect to the incurrence of such Debt and the use of the proceeds thereof, the Consolidated Leverage Ratio does not exceed 3.50 to 1.00, as the Consolidated Leverage Ratio is recomputed on such date using (I) Consolidated Total Debt outstanding on such date and (II) EBITDAX for the Reference Period ending on the last day of the fiscal quarter immediately preceding such date for which financial statements are available; provided that: (i) the Borrower shall have complied with Section 8.01(o); (ii) such Debt does not have any scheduled principal amortization; (iii) such Debt (other than the Specified Existing Notes) does not mature sooner than the date which is ninety-one (91) days after the Latest Maturity Date (provided that bridge facilities containing automatic extension provisions (except if a payment or bankruptcy default exists) shall be permitted so long as such extension results in connection with loans a maturity date no earlier than ninety-one (91) days after the Latest Maturity Date); (iv) such Debt does not have any mandatory prepayment or redemption provisions (other than customary change of control or asset sale tender offer provisions, provided that, in case of an asset sale tender offer, mandatory prepayment or redemption amounts are permitted to be applied first to the Obligations) which would require a mandatory prepayment or redemption in priority to the Obligations; (v) such Debt and any guarantees thereof are on terms, taken as a whole, not materially less favorable to Parent, the Borrower and its Subsidiaries as market terms for issuers of similar size and credit quality given the then prevailing market conditions as reasonably determined by the Borrower; (vi) if such Debt is senior subordinated Debt, such Debt is expressly subordinate to the payment in full of all of the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent; (vii) neither Parent nor any Subsidiary is required to guarantee such Debt unless Parent or such Subsidiary, as applicable, has guaranteed the Obligations pursuant to the Guaranty Agreement; and (viii) the Borrowing Base then in effect shall be adjusted to the extent required by Section 2.07(f) and the Borrower shall make any prepayment required by Section 3.04(c)(iii); provided further that for purposes of clarification, any Debt incurred under this Section 9.02(g) which is repaid may not be reborrowed under this Section 9.02(g);
(h) Junior Lien Debt in an aggregate principal amount not to exceed $100,000,000 and any guarantees thereof, so long as after giving pro forma effect to the incurrence of such Debt and the use of proceeds thereof, the Consolidated Leverage Ratio does not exceed 3.50 to 1.00, as the Consolidated Leverage Ratio is recomputed on such date using (I) Consolidated Total Debt outstanding on such date and (II) EBITDAX for the Reference Period ending on the last day of the Loans made fiscal quarter immediately preceding such date for which financial statements are available; provided that: (i) the Borrower shall have complied with Section 8.01(o); (ii) such Debt does not have any scheduled principal amortization; (iii) such Debt does not mature sooner than the date which is ninety-one (91) days after the Latest Maturity Date; (iv) such Debt does not have any mandatory prepayment or redemption provisions (other than customary change of control or asset sale tender offer provisions, provided that, in case of an asset sale tender offer, mandatory prepayment or redemption amounts are permitted to be applied first to the Obligations) which would require a mandatory prepayment or redemption in priority to the Obligations; (v) such Debt and any guarantees thereof are on terms, taken as a whole, not materially less favorable to Parent, the Borrower and its Subsidiaries as market terms for issuers of similar size and credit quality given the then prevailing market conditions as reasonably determined by the Borrower Borrower; (vi) such Debt shall be at all times subject to the Intercreditor Agreement and the Obligations shall be secured on a senior priority basis to such SubsidiariesDebt; (vii) neither Parent nor any Subsidiary is required to guarantee such Debt unless Parent or such Subsidiary, as applicable, has guaranteed the Obligations pursuant to the Guaranty Agreement; and (viii) the Borrowing Base then in effect shall be adjusted to the extent required by Section 2.07(f) and the Borrower shall make 106 any prepayment required by Section 3.04(c)(iii); provided further that for purposes of clarification, any Debt incurred under this Section 9.02(h) which is repaid may not be reborrowed under this Section 9.02(h);
(i) Permitted Refinancing Debt and any guarantees thereof, the proceeds of which loans are shall be used for concurrently with the purposes incurrence thereof to refinance the outstanding Permitted Additional Debt permitted by under Section 2.109.02(g) or Section 9.02(h), subject as applicable, or to refinance the following requirements: any and all of outstanding Permitted Refinancing Debt in respect thereof, as the Debt permitted pursuant case may be; provided that (i) the Borrower shall have complied with Section 8.01(o); (ii) the Borrower shall have furnished to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary copies of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part final executed versions of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1definitive documents therefor, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to Borrowing Base then in this Section 9.1(d) effect shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and be adjusted to the extent that the existence of such liabilities will not constituterequired by Section 2.07(f), cause or result in a Default; and
(f) Debt of and the Borrower and its Subsidiaries to the Trustee and the Noteholders shall make any prepayment required by Section 3.04(c)(iii); for purposes of clarification, any Permitted Refinancing Debt incurred under (and evidenced and governed bythis Section 9.02(i) the Subordinated Guarantees; provided, however, that such debt which is repaid may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.reborrowed under this Section 9.02(i);
Appears in 1 contract
Debt. The Borrower and (a) Prior to the Operating Guarantee Release Date, no Loan Party will, nor will it permit its Subsidiaries will notto, and will not permit any Subsidiary of the Borrower tocreate, incur, create, assume or permit suffer to exist any Debt, Debt except:
(ai) Debt to the Lenders pursuant to the Loan Documentsincurred under this Agreement;
(bii) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described set forth on Schedule 7.10 hereto 7.09, and renewals, extensions or refinancings of such Debt which that do not increase the outstanding principal amount thereof or change the obligors thereunder except by an amount equal to amounts paid for any accrued interest, breakage, premium, fees and expenses in connection with such refinancings; 90 [[5256212]]
(iii) Debt of the Parent or any Subsidiary owing to the Parent or any of its Subsidiaries, provided that (A) such DebtDebt shall not have been transferred to any Person other than the Parent or any of its Subsidiaries and (B) in the case of Debt owed by a Loan Party to a Subsidiary that is not a Loan Party, which do such Debt is subordinated in right of payment on terms acceptable to the Administrative Agent, to the extent permitted by Law and not shorten giving rise to material adverse tax consequences to the maturity Borrower;
(iv) Guarantees of Debt permitted under this Section 7.09(a), provided that a Subsidiary that is not a Loan Party shall not Guarantee Debt that it would not have been permitted to incur under this Section 7.09(a) if it were a primary obligor thereon;
(v) Debt owed in respect of (A) any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds, provided that such Debt shall be repaid in full within 30 days of the incurrence thereof, and (B) the unreimbursed amount of any principal drafts drawn under letters of credit, provided that such drafts shall be reimbursed in full within 5 Business Days of the applicable disbursement;
(vi) other Debt of the Loan Parties; provided that, after giving pro forma effect to the incurrence of such Debt and the terms and provisions application of the proceeds thereof, the Parent shall be in compliance with Section 7.02(a) as of the end of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 6.01(a) or 6.01(b); and
(vii) other Debt of Subsidiaries that are not materially more onerous Loan Parties in an aggregate principal amount not to exceed $100,000,000 outstanding at any time.
(b) On and after the Guarantee Release Date, no Loan Party will permit its Subsidiaries (other than the terms any Subsidiary that is a Loan Party or a Xxxxx Subsidiary) to create, incur, assume or suffer to exist any Debt except:
(i) Debt set forth on Schedule 7.09, and conditions refinancings of such Debt on that do not increase the outstanding principal amount thereof or change the obligors thereunder except by an amount equal to amounts paid for any accrued interest, breakage, premium, fees and expenses in connection with such refinancings;
(ii) Debt of any Subsidiary owing to the Parent or any of its Subsidiaries, provided that such Debt shall not have been transferred to any Person other than the Parent or any of its Subsidiaries;
(iii) Guarantees of Debt of any other Subsidiary that is not a Loan Party permitted under this Section 7.09(b), provided that a Subsidiary shall not Guarantee Debt that it would not have been permitted to incur under this Section 7.09(b) if it were a primary obligor thereon; 91 [[5256212]]
(iv) Debt owed in respect of (A) any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds, provided that such Debt shall be repaid in full within 30 days of the incurrence thereof, and (B) the unreimbursed amount of any drafts drawn under letters of credit; provided that such drafts shall be reimbursed in full within 5 Business Days of the applicable disbursement;
(v) Debt of any Subsidiary (A) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Leases, provided that such Debt is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, or (B) assumed in connection with the acquisition of any fixed or capital assets, and any refinancings of such Debt that do not increase the outstanding principal amount thereof except by an amount equal to amounts paid for any accrued interest, breakage, premium, fees and expenses in connection with such refinancings;
(vi) (A) Debt of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary) after the Original Closing Date, incurred prior to the time such Person becomes a Subsidiary (iior is so merged or consolidated), that is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation), (B) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liensa Lien on property acquired by a Subsidiary, which incurred prior to the acquisition thereof by such Subsidiary, that is not created in contemplation of or in connection with such acquisition and (C) Debt refinancing (but not increasing the outstanding principal amount thereof, except by an amount equal to amounts paid for any accrued interest, breakage, premium, fees and expenses in connection with such refinancing) any Debt described in this clause (vi); and
(vii) any other Debt of the Subsidiaries; provided that, at the time of the creation, incurrence or assumption of such Debt and Liens are permitted under and meet after giving effect thereto, the sum, without duplication, of (A) the aggregate outstanding principal amount of all of the requirements of such Debt created, incurred, assumed, or in existence in reliance on this clause (gvii), plus (B) the aggregate outstanding principal amount of all Debt secured by Liens under Section 7.01(y), plus (C) the definition aggregate outstanding amount of Permitted Liens contained Attributable Debt under all Sale and Leaseback Transactions under Section 7.08(c) does not exceed 15% of Consolidated Net Tangible Assets; provided that, notwithstanding anything to the contrary in this Section 1.17.09(b), and (iii) additional unsecured Debt; provided, however, that in no event shall the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not of non-wholly owned Subsidiaries exceed $15,000,000 in aggregate amount 100,000,000 outstanding at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000time.
Appears in 1 contract
Samples: Incremental Facility and Amendment Agreement (Noble Midstream Partners LP)
Debt. The Borrower and the Operating Subsidiaries will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of the Borrower to, directly or indirectly, create, incur, createassume, assume guarantee or permit to exist otherwise become or remain directly or indirectly liable with respect to, any Debt, exceptexcept for:
(a) Debt to and Letter of Credit Liabilities under the Lenders pursuant to the Loan Financing Documents;
(b) intercompany Debt between outstanding on the date of this Agreement and set forth on Schedule 5.1;
(c) Debt incurred or among assumed for the Borrower and purpose of financing all or any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries part of the Borrower to the Borrower in connection with loans cost of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10acquiring any fixed asset (including through Capital Leases), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in an aggregate principal amount at any time owing outstanding not greater than $1,500,000;
(d) Debt, if any, arising under Swap Contracts;
(e) intercompany Debt arising from loans made by (i) Borrower to its Wholly-Owned Domestic Subsidiaries to fund working capital requirements of such Subsidiaries in the Ordinary Course of Business and (ii) any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured DebtBorrower; provided, however, that upon the request of Administrative Agent at any time, any such Debt shall be evidenced by promissory notes having terms reasonably satisfactory to Administrative Agent, the sole originally executed counterparts of which shall be pledged and delivered to Administrative Agent, for the benefit of Administrative Agent and Lenders, as security for the Obligations;
(f) Debt of a Person or Debt attaching to assets of a Person that, in either case, becomes a Subsidiary or Debt attaching to assets that are acquired by Borrower or any of its Subsidiaries, in each case after the Closing Date as the result of a Permitted Acquisition, provided, that (i) such Debt existed at the time such Person became a Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof and (ii) such Debt is not guaranteed in any respect by Borrower or any of its Subsidiaries;
(g) Debt in respect of bid, performance and surety bonds, including guarantees or obligations of the Credit Parties with respect to letters of credit supporting such bid, performance and surety bonds or other forms of credit enhancement supporting performance obligations under services contracts, workers’ compensation claims, self-insurance obligations, unemployment insurance, health, disability and other employee benefits or property, casualty or liability insurance, in each case incurred in the Ordinary Course of Business, not to exceed (when combined with amounts outstanding under Section 5.3(e)) $500,000 in the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(eh) liabilities unsecured Debt arising from agreements to provide for indemnification, adjustment of purchase price, earn-outs or other similar obligations, in each case, incurred in connection with a Permitted Acquisition or Asset Disposition permitted hereunder and subject to the Borrower limits set forth in respect of unfunded vested benefits under any Plan if and Section 5.8(b)(xi);
(i) unsecured Debt arising from agreements to provide for milestone or royalty payments, to the extent that such obligations are considered Debt under GAAP, incurred in connection with a Permitted Acquisition and subject to the existence of such liabilities will not constitute, cause or result limits set forth in a DefaultSection 5.8(b)(xi); and
(fj) unsecured Debt of not to exceed $250,000 in the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000aggregate at any time outstanding.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Pernix Therapeutics Holdings, Inc.)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower toCreate, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or permit suffer to exist exist, any Debt, exceptDebt other than:
(a) In the case of the Borrower, Debt to the Lenders incurred pursuant to the Loan Documents;
(b) intercompany In the case of the Borrower, debt owed to any Wholly-Owned Subsidiary of the Borrower, and in the case of any of the Subsidiaries of the Borrower, Debt between owed to the Borrower or among to a Wholly-Owned Subsidiary of the Borrower; provided, that all such Debt owed by any Subsidiary to the Borrower shall be evidenced by a promissory note, such promissory note shall be pledged to the Administrative Agent pursuant to the terms of the Security Agreement or such other document (including, without limitation, the Note Assignment Agreement) and, in the case of Debt owed by any Subsidiary, there shall be no restrictions whatsoever on the ability of such Subsidiary to repay such Debt; and
(c) In the case of the Borrower and any of its Operating Subsidiaries Subsidiaries:
(i) Debt (A) secured by Liens permitted by Section 6.1(d) and (B) Capitalized Leases, collectively not to exceed in the aggregate $500,000 at any time outstanding;
(ii) endorsement of negotiable instruments for deposit or Wholly-Owned Subsidiaries incurred collection or similar transactions in the ordinary course of business business;
(includingiii) the Surviving Debt;
(iv) Senior Subordinated Debt, without limitation, Debt owed provided that (A) principal and interest shall be payable or paid by the Operating Borrower only in accordance with the terms and conditions of the applicable Subordinated Debt Documents and (B) the Borrower may, as required by the Senior Subordinated Debt Documents, cause its existing Subsidiaries or Wholly-Owned and any Subsidiaries of the Borrower Company hereafter formed and/or acquired by the Company (or any Subsidiary of the Company) to issue guaranties of the Borrower's Obligations under the Senior Subordinated Debt, which guaranties shall be substantially similar to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted Subsidiary Guaranty issued pursuant to this Section 9.1(b) shall Agreement, except that such guaranties will be unsecuredsubordinated to the Obligations of such Subsidiaries under the Subsidiary Guaranty or Guaranties issued or to be issued under this Agreement consistent with the subordination provisions set forth in the Convertible Senior Subordinated Note included in the Senior Subordinated Debt, shall will guaranty the Obligations of the Borrower under such Note and otherwise be evidenced by instruments in form and substance reasonably satisfactory to the Administrative Agent which will and the holder of such Note;
(v) Subordinated Debt, provided that principal shall be pledged payable or paid by the Borrower subsequent to the Administrative Agent for the benefit maturity date of the Administrative Agent and Obligations under the Lenders andFacilities with interest payments, if payable approved by the BorrowerRequired Lenders in connection with approval of the terms of such Subordinated Debt, shall be subordinated payable prior to maturity on terms agreed to by the Obligations pursuant to a subordination agreement Required Lenders;
(vi) Debt (other than as borrowed hereunder) incurred or assumed in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business connection with Permitted Acquisitions or Permitted Club Acquisitions not to exceed in the aggregate $100,000 in aggregate principal amount 500,000 at any time owing by outstanding.
(vii) Unsecured Debt incurred in connection with the conversion of the obligations under any Operating Subsidiary or Wholly-Owned Subsidiary Future Acquisition Puts into Debt of the Borrower or its Subsidiaries pursuant to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part terms of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewalsagreements governing such Future Acquisition Puts, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet provided that all of the requirements of Debt described in this clause (gvii) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured constitutes Subordinated Debt; providedand
(viii) any Debt extending the maturity of, howeveror refunding or refinancing, that the aggregate principal amount of in whole or in part, the Debt referred to in this Section 9.1(d6.2(c), provided that (A) the principal amount of such Debt shall not exceed $15,000,000 in aggregate be increased above the principal amount at any time outstanding;
thereof outstanding immediately prior to the refinancing (e) liabilities of the Borrower but, in respect of unfunded vested benefits the Senior Subordinated Debt, may be increased to Eighteen Million Five Hundred Thousand ($18,500,000) Dollars in respect of the first refinancing of the Senior Subordinated Debt that exists on the Closing Date), and the direct and contingent obligors shall not be changed, as a result of or in connection with such extension, refunding or refinancing, except that any Subsidiary of the Company in existence at, or formed or acquired by the Company (or any Subsidiary of the Company) subsequent to, the date of any of such extension of the maturity of, or refunding or refinancing, in whole or in part, of the Senior Subordinated Debt, shall be permitted to guarantee such Debt as so extended, refunded or refinanced, to the same extent as such Subsidiaries are permitted to guarantee such Debt pursuant to Section 6.2(c)(iv) hereof, and no prepayment premium or penalty of any kind shall be incurred in connection therewith, and the terms thereof are no less favorable to the Borrower or the Lender Parties or the Administrative Agent (except as and to the extent set forth in respect of Senior Subordinated Debt under clause (viii)(B) below) than the terms of the refunded or refinanced Debt and the fees, expenses and other costs associated therewith are reasonably acceptable to the Administrative Agent in the exercise of its reasonable discretion; (B) no amendment, modification or supplement to the terms of any Plan Debt or any refinanced or refunded Debt shall be made except if and to the extent permitted under Section 6.13, but amendments and modifications to any replacement for the Senior Subordinated Debt which are not inconsistent with the terms of Section 6.13(b) shall be deemed acceptable to the Lenders and the Administrative Agent; and (C) with respect to the first refinancing of the Senior Subordinated Debt that exists on the existence Closing Date, the principal amount of the replacement Debt shall at least equal the sum of (i) the principal amount then outstanding of such liabilities will not constituteSenior Subordinated Debt which is refinanced and (ii) the fees, cause or result in a Default; and
(f) Debt of expenses and other costs payable by the Borrower and or its Subsidiaries in connection with such refinancing (subject to the Trustee and the Noteholders under limit of $18,500,000 of clause (and evidenced and governed byviii)(A) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000above).
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will Borrowers shall not, and will not permit any Subsidiary of the Borrower to, incureither directly or indirectly, create, assume assume, incur or permit to exist have outstanding any DebtDebt (including purchase money indebtedness), or become liable, whether as endorser, guarantor, surety or otherwise, for any debt or obligation of any other Person, except:
(a) Debt to the Lenders pursuant to Obligations under this Agreement and the other Loan Documents;
(b) intercompany Debt between obligations of the Borrowers for Taxes, assessments, municipal or among other governmental charges;
(c) obligations of the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries Borrowers for accounts payable, other than for money borrowed, incurred in the ordinary course of business business;
(includingd) Subordinated Debt;
(e) Hedging Obligations incurred in favor of Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(f) Debt for Capital Expenditures, without limitationother than Capital Expenditures constituting Permitted Acquisitions, provided that the aggregate amount of all such Debt owed outstanding at any time shall not exceed One Million and no/100 Dollars ($1,000,000.00);
(g) Debt described on Schedule 9.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(h) performance guaranties issued by the Operating Subsidiaries or Wholly-Owned Subsidiaries Borrowers of the Borrower to the Borrower in connection with loans operating obligations of proceeds of the Loans their Subsidiaries made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, Borrowers’ business; provided, however, that Debt thereunder may be secured if such Debt constitutes a part guaranties shall exclude any guaranty of the Obligationspayment of such Subsidiaries’ monetary obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such other unsecured Subordinated Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of addition to the Debt referred to listed above, in this Section 9.1(d) shall not exceed $15,000,000 in an aggregate amount outstanding at any time outstanding;
not to exceed One Million and 00/100 Dollars (e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default$1,000,000.00); and
(fj) revolving loan facility Debt or Debt incurred in connection with advance payment or performance guaranties, each to the extent incurred by Borrowers’ foreign Subsidiaries after the date hereof, provided, (i) the applicable foreign Subsidiary uses good faith efforts to utilize Lender or an Affiliate of Lender to obtain such financing (considering all of the Borrower business circumstances involved) and its Subsidiaries it is determined to be impractical for the Trustee applicable foreign Subsidiary to obtain such financing from Lender or any of Lender’s Affiliates, whether utilizing Letters of Credit issued under this Agreement or otherwise; and the Noteholders under (and evidenced and governed byii) the Subordinated Guarantees; provided, however, that total aggregate outstanding amount of such debt may Debt incurred after the date hereof does not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000exceed $5,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Hill International, Inc.)
Debt. The Borrower and the Operating Subsidiaries will notNot, and will not permit any Subsidiary of the Borrower other Loan Party to, create, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to Obligations under this Agreement and the Lenders pursuant to the other Loan Documents;
(b) intercompany Debt between or among secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided that the Borrower and aggregate amount of all such Debt at any time outstanding shall not exceed $3,500,000;
(c) Debt of its Operating Subsidiaries or the Company to any domestic Wholly-Owned Subsidiaries incurred in the ordinary course Subsidiary or Debt of business (including, without limitation, Debt owed by the Operating Subsidiaries or any domestic Wholly-Owned Subsidiaries of the Borrower Subsidiary to the Borrower in connection with loans Company or another domestic Wholly-Owned Subsidiary; provided that, upon the reasonable request of proceeds of the Loans made by the Borrower to Administrative Agent, such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments a demand note in form and substance reasonably satisfactory to the Administrative Agent which will be and pledged and delivered to the Administrative Agent pursuant to the Collateral Documents as additional collateral security for the benefit of the Administrative Agent Obligations, and the Lenders and, if payable by the Borrower, obligations under such demand note shall be subordinated to the Obligations pursuant to of the Company hereunder in a subordination agreement in form and substance manner reasonably satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(cd) unsecured Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased in excess of the amount set forth on such Schedule;
(e) Contingent Liabilities arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 11.5;
(f) Contingent Liabilities listed on Schedule 11.1 and Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers in connection with Acquisitions permitted hereunder;
(g) Guaranties by the Interest Rate Protection Agreements required to be maintained Company and/or its Subsidiaries in respect of Debt of the Company or its domestic Subsidiaries permitted by this Section 8.1211.1;
(h) Guaranties by the Company and/or its Subsidiaries in respect of Debt of Joint Ventures, provided, however, that Debt thereunder may be secured if such Joint Ventures are permitted under this Agreement, up to an aggregate amount of $3,000,000 for all such Debt constitutes a part of being guarantied by the ObligationsCompany and its Subsidiaries;
(i) existing Hedging Obligations incurred in favor of Administrative Agent, any Lender or any of their Affiliates for bona fide hedging purposes and not for speculation;
(j) Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of owing to any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted trust created under and meet all a supplemental executive retirement program of the requirements of clause Company;
(gk) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the Unsecured Subordinated Debt up to an aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount outstanding at any time outstanding;
of Twenty Five Million Dollars (e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and $25,000,000), approved prior to the extent that incurrence thereof by the existence of such liabilities will not constituteAdministrative Agent and subject, cause or result in at all times after the incurrence thereof, to a DefaultSubordination Agreement; and
(fl) Debt of the Borrower and its Subsidiaries Company owing to the Trustee and Canadian Entities up to $7,500,000 in the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000aggregate.
Appears in 1 contract
Samples: Credit Agreement (Cpi Corp)
Debt. The Borrower and the Operating Subsidiaries will not, not and will not permit any Subsidiary of the Borrower toto create, incur, create, assume or permit suffer to exist any DebtIndebtedness, except:
(a) Debt to Obligations of the Lenders pursuant to Borrower and each Guarantor under this Agreement, the Guaranties and any other Loan Documents;
(b) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries Swap Obligations of the Borrower or any Subsidiary owing to the Borrower in connection with loans any Bank (or any Affiliate of proceeds of the Loans made by the Borrower a Bank) or to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory other counterparty acceptable to the Administrative Agent;
(c) Indebtedness under any Treasury Management Agreement;
(d) Indebtedness of any Subsidiary to the Borrower or a Wholly Owned Subsidiary;
(e) the Prudential Obligations and any refinancings, extensions, renewals or replacements thereof, to the extent the principal amount of the Prudential Obligations (or refinancing thereof) is not increased and the documents governing any refinancing of the Prudential Obligations do not contain terms, conditions, covenants and events of default which are more restrictive than those contained in the Prudential Note Documents;
(f) Indebtedness of any Guarantor under the Prudential Note Guaranties, so long as the Prudential Intercreditor Agreement is in effect;
(g) other Indebtedness not to exceed $100,000,000 in the aggregate at any time outstanding (such other Indebtedness may include Indebtedness of any Subsidiary acquired pursuant to a Permitted Acquisition, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower such Indebtedness shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt have been incurred in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings contemplation of such Debt which do not increase Acquisition and in no case shall any such Indebtedness remain in effect for a period of time beyond the outstanding principal amount maturity date of such Debt, which do not shorten the maturity of any principal of Indebtedness in place when such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a DefaultSubsidiary was acquired); and
(fh) Debt existing Indebtedness described on Schedule 7.2 hereto and any refinancings, extensions, renewals or replacements of such Indebtedness to the extent the documents governing such refinanced Indebtedness do not contain terms, conditions, covenants and events of default which, taken collectively, are materially more restrictive than those contained in the documents governing such Indebtedness as of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Saia Inc)
Debt. The Neither the Parent MLP nor the Borrower and nor any of the Operating other Restricted Subsidiaries will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to the Lenders pursuant to 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;
(b) intercompany Debt between or among of the Borrower and the Restricted Subsidiaries existing on the Closing Date that is reflected in the Financial Statements or on Schedule 9.02(b), and any refinancings, renewals or extensions (but not increases) thereof;
(c) accounts payable (for the deferred purchase price of its Operating Subsidiaries Property or Wholly-Owned Subsidiaries 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;
(includingd) Debt under Capital Leases (as required to be reported on the financial statements of the Borrower pursuant to GAAP) not to exceed $10,000,000;
(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 among the Borrower and any Restricted Subsidiary or between Restricted Subsidiaries to the extent permitted by Section 9.05(h); provided that such Debt is not held, without limitationassigned, transferred, negotiated or pledged to any Person other than the Borrower or one of the Guarantors, and, provided further, that any such Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of either the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, or a Guarantor shall be subordinated to the Obligations pursuant to a subordination agreement Indebtedness on terms set forth in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time Guarantee Agreement;
(g) endorsements of negotiable instruments for collection in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinatedbusiness;
(ch) unsecured purchase money Debt in respect of property acquired by the Borrower and the Restricted Subsidiaries; provided that the aggregate principal or face amount of all Debt secured under the Interest Rate Protection Agreements required to be maintained by this Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations9.02(h) shall not exceed $10,000,000 at any time;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Subordinate Debt; provided, howeverthat contemporaneously with any issuance or incurrence thereof (i) the Borrowing Base shall be automatically reduced pursuant to and in accordance with Section 2.08(f) and (ii) the Borrower shall make any mandatory prepayment required by Section 2.07(b)(iii), that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstandingif applicable;
(ej) liabilities Permitted Senior Debt; provided, that immediately prior to the issuance or incurrence thereof the Mortgaged Properties shall have a PV9% value of not less than the required Minimum Collateral Value; provided further, contemporaneously with any issuance or incurrence thereof (i) the Borrowing Base shall be automatically reduced pursuant to and in accordance with Section 2.08(f) and (ii) the Borrower shall make any mandatory prepayment required by Section 2.07(b)(iii), if applicable;
(k) guarantees of Debt of the Parent MLP, the Borrower or any other Restricted Subsidiary otherwise permitted under this Section 9.02;
(l) other Debt not to exceed $20,000,000 in respect of unfunded vested benefits under the aggregate at any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Defaultone time outstanding; and
(fm) Debt of the Borrower and its Subsidiaries to the Trustee Preferred Stock and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Series B Preferred Stock.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower toCreate, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or permit suffer to exist exist, any Debt, except:
(ai) Debt to the Lenders pursuant to under the Loan Documents;
(bii) intercompany (A) Debt between under the ABL Facility, provided that (x) the aggregate principal amount of such Debt shall not exceed $75,000,000 at any time outstanding and (y) such Debt under the ABL Facility existing on the Sixth Amendment Effective Date shall be permitted to be refinanced with a term ABL Facility, so long as (1) the refinanced Debt under the new term ABL Facility in no event exceeds the permitted amount set forth in clause (x) above on the date of such refinancing, (2) the proceeds of such term ABL Facility are applied as follows: first, to repay the ABL Facility existing on such refinancing date in full and second, any proceeds remaining following the application of first shall be deposited into the Reinvestment Account (such remaining proceeds, the “Excess Refinanced ABL Loans” ), (3) the agent under such refinanced ABL Facility shall become party to the Intercreditor Agreement on behalf of the secured parties under such refinanced ABL Facility and be subject to the same agreements, terms and conditions as the ABL Agent, the ABL Secured Parties and the ABL Facility on the Sixth Amendment Effective Date, (4) the security documents entered into in connection with such refinanced ABL Facility shall grant a first priority lien solely in the ABL Priority Collateral and a second priority lien solely in the Term Loan Priority Collateral and shall be on substantially the same terms and conditions, taken as a whole, as in effect for each ABL Facility security document in effect on the Sixth Amendment Effective Date and otherwise consistent with the Intercreditor Agreement, and (5) the documentation with respect to such refinanced ABL Facility shall not have covenants or among events of default that are materially more restrictive, taken as a whole, than then-applicable market terms and conditions for comparable borrowers and facilities (or otherwise such documentation shall have those covenants and events of default that are substantially similar, taken as a whole, to the Borrower ABL Facility in effect on the Sixth Amendment Effective Date), other than, in each case, and for the avoidance of doubt, any and all changes required to reflect any term loan nature of its Operating Subsidiaries such refinanced ABL Facility, and (B) Debt constituting obligations under Secured Hedge Agreements and Cash Management Agreements as contemplated by the ABL Credit Agreement as in effect on the Effective Date and in the case of (A) and (B), so long as (i) the ABL Agent on behalf of the Secured Parties (as defined in the ABL Credit Agreement) has entered into the Intercreditor Agreement), (ii) the ABL Secured Parties are granted a first priority Lien solely in the ABL Priority Collateral and (iii) the ABL Secured Parties are granted a second priority Lien solely in the Term Loan Priority Collateral;
(iii) (A) Debt arising under Existing Equipment Financings, (B) other Debt incurred subsequent to the Effective Date and secured by Liens permitted by Section 5.02(a)(iv); provided that Debt permitted to be incurred pursuant to this Section 5.02(b)(iii)(B) shall not exceed in the aggregate, when taken together with any outstanding Debt permitted to be incurred pursuant to Section 5.02(b)(v)(B), $8,000,000 at any time outstanding, and (C) Debt arising under Non-Lender Financed Equipment Financings incurred subsequent to the Effective Date in accordance with the terms of, and subject to the satisfaction of each condition in, Schedule 5.02(k);
(iv) Debt owed to any Loan Party, which Debt shall (x) constitute Pledged Debt, (y) be on terms reasonably acceptable to the Administrative Agent and (z) be otherwise permitted under Section 5.02(f);
(v) (A) Existing Capitalized Leases, (B) other Debt incurred subsequent to the Effective Date and attributable to Capitalized Leases not to exceed in the aggregate, when taken together with any outstanding Debt permitted to be incurred pursuant to Section 5.02(b)(iii)(B), $8,000,000 at any time outstanding and (C) Debt arising under Non-Lender Financed Capitalized Leases incurred subsequent to the Effective Date in accordance with the terms of, and subject to each condition in, Schedule 5.02(k);
(vi) to the extent constituting Debt, (A) Debt in respect of performance bonds, workers’ compensation claims, unemployment insurance, employee compensation and benefits, bid bonds, appeal bonds, surety bonds, completion guarantees, indemnification obligations, obligations to pay insurance premiums, take or Wholly-Owned Subsidiaries pay obligations, completion guarantees and similar obligations incurred in the ordinary course of business and not securing Debt for Borrowed Money and (includingB) letters of credit, without limitationbonds or similar instruments collateralized in full by amounts permitted under, Debt owed and to the extent secured by the Operating Subsidiaries or Wholly-Owned Subsidiaries a Lien described in, clause (d) of the Borrower to definition of Permitted Liens;
(vii) non-current pay, non-amortizing, unsecured and subordinated junior lien debt with a maturity date beyond the Borrower in connection with loans of proceeds Maturity Date of the Loans made by and which is subordinated in right of payment in full to the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10)Obligations, subject to the following requirements: any and all execution by such junior debt lenders of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent; or such other form as may be acceptable to the Administrative Agent in its sole discretion;
(viii) Guaranteed Debt of any Loan Party in respect of any Debt otherwise permitted to be incurred under this Section 5.02(b);
(ix) Debt of the Loan Parties under company debit cards, providedstored value cards, however, that temporary advances made from time to time commercial cards or cash management services incurred in the ordinary course of business in an amount not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt 500,000 in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(ex) liabilities Debt of the Borrower Loan Parties arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, so long as such Debt (i) does not exceed $100,000 at any time outstanding or (ii) is extinguished within 10 Business Days of receipt of notice from the applicable financial institution of such occurrence;
(xi) Debt in respect of unfunded vested benefits under the financing of insurance premiums incurred in the ordinary course of business and consistent with past practice;
(xii) unsecured Debt incurred in the ordinary course of business in an aggregate amount not to exceed $500,000 at any Plan one time outstanding;
(xiii) the PPP Loan, as in effect on July 23, 2020;
(xiv) trade payables overdue (unless being contested in good faith by appropriate proceedings for which reserves and other appropriate provisions, if any, required by GAAP shall have been made) by more than one-hundred and twenty (120) days but less than one-hundred eighty (180) days incurred in the ordinary course of such Person’s business, or such longer period as is approved in writing by the Administrative Agent from time to the extent time;
(xv) The CARES Act Loan, as in effect on November 12, 2020, provided that the existence Borrower shall not enter into any amendment, restatement, renewal, extension or other modification of such liabilities will not constitute, cause or result in a DefaultCARES Act Loan (other than to replace the Pre-Release CARES Act Collateral with Post-Release CARES Act Collateral) without the prior written consent of the Required Lenders and provided further that the sole collateral that maybe pledged under the CARES Act Loan is CARES Act Loan Collateral; and
(fxvi) Debt issued under the Third Lien Notes Agreement, provided that the aggregate principal amount of such Debt shall not exceed $155,000,000 (plus any interest that is capitalized to the principal of the Borrower and its Subsidiaries to notes) in the Trustee aggregate at any time outstanding, so long as (A) the Third Lien Agent on behalf of the Third LienPriority Secured Parties has entered into the Intercreditor Agreement, (B) the Third LienPrioirty Secured Parties are granted a third priority Lien in the ABL Priority Collateral and the Noteholders Term Loan Priority Collateral, and (B) all Debt issued under such Third Lien Notes Agreement is issued no later than thirty (and evidenced and governed by30) calendar days following the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Fifth Amendment Effective Date.
Appears in 1 contract
Samples: Registration Rights Agreement (Crestview Partners III GP, L.P.)
Debt. The Borrower Each Loan Party and the Operating Subsidiaries will Parent shall not, and will not permit any Subsidiary of the Borrower its Subsidiaries to, create, incur, create, assume or suffer or permit to exist any Debt, except:
(a) Debt to Obligations under this Agreement and the Lenders pursuant to the other Loan Documents;
(b) intercompany Debt between of the Company or among the Borrower and any of its Operating Subsidiaries or secured by Liens permitted by Section 11.3(e), and extensions, renewals and refinancings thereof; provided that the aggregate amount of all such Debt at any time outstanding shall not exceed $175,000;
(c) Debt of the Company to any domestic Wholly-Owned Subsidiaries incurred in the ordinary course Subsidiary or Debt of business (including, without limitation, Debt owed by the Operating Subsidiaries or any domestic Wholly-Owned Subsidiaries of the Borrower Subsidiary to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to Company or another domestic Wholly-Owned Subsidiary; provided that such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement demand note in form and substance satisfactory to the Administrative Agent and pledged and delivered to the Administrative Agent pursuant to the Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Company hereunder in a manner satisfactory to the Administrative Agent, provided, however, that temporary advances made from time ;
(d) Contingent Liabilities arising with respect to time customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 11.4;
(e) Contingent Liabilities of the ordinary course Company and/or its Subsidiaries in respect of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary Debt of the Company or its domestic Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinatedSubsidiaries permitted by this Section 11.1;
(cf) unsecured Hedging Obligations approved in writing by the Administrative Agent for bona fide hedging purposes and not for speculation;
(g) Debt under described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the Interest Rate Protection Agreements required principal amount thereof is not increased;
(h) the Debt to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if Repaid (so long as such Debt constitutes a part is repaid on the Closing Date with the proceeds of the ObligationsLoans hereunder);
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to be assumed in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstandingconnection with a Permitted Convertible Note Offering;
(ej) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a DefaultApproved Subordinated Debt; and
(fk) Debt the Specified Financing in the principal amount of the Borrower and its Subsidiaries up to $2,000,000, subject at all times to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Specified Financing Intercreditor Agreement.
Appears in 1 contract
Samples: Forbearance Agreement (Digerati Technologies, Inc.)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower toCreate, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to Obligations under this Agreement and the Lenders pursuant to the other Loan Documents;
(b) intercompany Debt between or among secured by Liens permitted by Sections 7.02(d), 7.02(h) and 7.02(j), and extensions, renewals and refinancings thereof; provided that the aggregate amount of all such Debt at any time outstanding shall not exceed $20,000,000;
(c) Debt of a Co-Borrower and to any of its Operating Subsidiaries or domestic Wholly-Owned Subsidiaries incurred in the ordinary course Subsidiary or Debt of business (including, without limitation, Debt owed by the Operating Subsidiaries or any Wholly-Owned Subsidiaries of the Subsidiary to a Co-Borrower or to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to a domestic Wholly-Owned Subsidiary; provided that such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments a demand note in form and substance reasonably satisfactory to the Administrative Agent which will be and pledged and delivered to the Administrative Agent pursuant to the Collateral Documents as additional collateral security for the benefit of the Administrative Agent Obligations, and the Lenders and, if payable by the Borrower, obligations under such demand note shall be subordinated to the Obligations pursuant to of the Co-Borrowers hereunder in a subordination agreement in form and substance 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 7.01 and any extension, provided, however, that temporary advances made from time to time renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Debt assumed in the ordinary course of business connection with Acquisitions permitted under Section 7.05 not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount 10,000,000 at any time outstanding;
(eg) liabilities Debt consisting of seller financing incurred in connection with Acquisitions permitted under Section 7.05 not to exceed $10,000,000 at any time outstanding;
(h) Debt incurred by a Co-Borrower or any Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price, earn-outs or similar obligations, or from guaranties or letters of credit, surety bonds or performance bonds securing the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence performance of such liabilities will not constituteCo-Borrower or any such Subsidiary pursuant to such agreements;
(i) guaranties by any Co-Borrower or any Subsidiary of Debt of any other Co-Borrower or any Subsidiary with respect to, cause or result in a Defaulteach case, Debt otherwise permitted to be incurred pursuant to this Section 7.01; and
(fj) Debt of the Borrower so long as there exists no Default before and its Subsidiaries immediately after giving effect to the Trustee and incurrence of any such Debt, other unsecured Debt, in addition to the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; providedDebt listed above, however, that such debt may in an aggregate outstanding amount not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000at any time exceeding $20,000,000.
Appears in 1 contract
Samples: Credit Agreement (Ennis, Inc.)
Debt. The Borrower and the Operating Neither Parent nor any of its Subsidiaries will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume shall incur ---- or permit to exist maintain any Debt, exceptexcept for:
(a) Debt to the Lenders pursuant to the Loan DocumentsObligations;
(b) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;described on Schedule 6.9; ------------
(c) unsecured any Debt under evidencing a refunding, renewal or extension of the Interest Rate Protection Agreements required Debt described on Schedule 6.9 (including the replacement ------------ of any Debt represented by the KeyBank Lease on the terms substantially as set forth in the term sheet from Fleet Capital Leasing delivered to the Agent on or before the Initial Funding Date so long as such replacement occurs within 60 days of the termination of the KeyBank Lease), provided -------- that (i) the 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 maintained refunded, renewed or extended, (iii) no Person that is a Loan Party, but is not an obligor or guarantor of such Debt, as of the Initial Funding Date shall become an obligor or guarantor thereof, and (iv) the material terms of such refunding, renewal or extension are no less favorable to Parent and its Subsidiaries, the Agent or the Lenders, in the Agent's and Lenders' reasonable discretion, than the original Debt;
(d) Debt of any Borrower incurred after the Initial Funding Date and secured by Section 8.12some or all of a Borrower's Real Estate or Equipment, providedprovided that (i) at the time of incurring such Debt, however, that Debt thereunder may be secured if and taking -------- such Debt constitutes into account, no Default or Event of Default exists or would result therefrom, and, for purposes of this clause, Parent shall deliver a part certificate, signed by a Responsible Officer of Parent, demonstrating that Parent will continue to be in compliance with its financial covenants hereunder on a pro forma basis, taking such additional Debt into account, (ii) the Liens securing such Debt attach only to such Real Estate or Equipment, (iii) no other Loan Party shall become an obligor or guarantor of such new Debt; (iv) the net cash proceeds from the incurrence of any such Debt secured by Equipment or Real Estate shall be at least 80% of the Obligationsorderly liquidation value of any Equipment secured by such Debt, plus 65% of ---- the fair market value of any Eligible Real Estate secured by such Debt, and such proceeds are delivered to Agent for application to the Revolving Loans and the reduction of the Maximum PP&E Loan Amount in accordance with Sections 3.3 and 3.8; and (v) the aggregate amount of any such Debt existing ------------ --- at any one time does not exceed $20,000,000;
(e) Capital Leases of Equipment and purchase money secured Debt incurred to purchase Equipment or Real Estate provided that -------- (i) Liens securing such Debt attach only to the Equipment or Real Estate acquired by the incurrence of such Debt, and (ii) the aggregate outstanding amount of such Debt (including Capital Leases) does not exceed $15,000,000 at any time;
(f) Debt consisting of Guaranties permitted under Section 7.12; ------------
(g) Debt of any Borrower owing to another Borrower, provided that such Debt is evidenced by a promissory note pledged and -------- delivered to the Agent as Collateral;
(h) Debt of any Borrower owing to Parent or any Subsidiary of Parent other than another Borrower, provided that such Debt -------- (if owed to a Loan Party) is evidenced by a promissory note pledged and delivered to the Agent as Collateral and the obligations of such Borrower owing to such Person are subordinated to the repayment in full of the obligations of such Borrower owing to the Agent and the Lenders;
(i) existing Debt of any Loan Party (other than Parent or a Borrower) owing to another Loan Party (other than Parent or a Borrower), provided that such obligations of the Loan Party incurring such Debt are -------- subordinated to the repayment in full of the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings obligations of such Loan Party owing to Agent and the Lenders;
(j) Debt which do of Parent and other Subsidiaries of Parent that are not increase Borrowers, owing to one or more Borrowers or other Loan Parties, provided that on the outstanding principal amount date of the advance of the proceeds of such -------- Debt, which do not shorten the maturity of any principal of such Borrowers or other Loan Parties would be permitted to make a Restricted Investment in Parent or such Subsidiary pursuant to Section 7.10(b)(i) and such Debt is evidenced by a promissory note pledged ------------------ to the Agent as Collateral;
(k) unsecured Debt, and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of "Permitted Liens contained in Section 1.1Liens", and existing as a ---------- consequence of a Permitted Acquisition;
(iiil) additional unsecured Debt; provided, however, that Debt incurred after the Initial Funding Date in an aggregate principal amount of the Debt referred not to in this Section 9.1(d) shall not exceed $15,000,000 20,000,000, provided that, at the time of incurring such Debt, and taking such Debt into -------- account, no Default or Event of Default exists or would result therefrom, and, for purposes of this clause, Parent shall deliver a certificate, signed by a Responsible Officer of Parent, demonstrating that Parent will continue to be in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of compliance with its financial covenants hereunder on a pro forma basis, taking such liabilities will not constitute, cause or result in a Defaultadditional Debt into account; and
(fm) Debt of the Borrower and its Subsidiaries of Parent that are not Loan Parties owing to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, other Subsidiaries of Parent that such debt may are not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Loan Parties.
Appears in 1 contract
Samples: Credit Agreement (Mail Well Inc)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit NCI, NCH or any Restricted Subsidiary of the Borrower to, incur, create, assume or permit to exist any Debt, except:
(a1) Debt to the Lenders pursuant to the Loan Documents;
(2) Subordinated Debt of NCH and/or NCI not to exceed $300,000,000 in aggregate principal amount at any time outstanding; provided, the net proceeds of such Subordinated Debt shall be contributed to the Borrower as common equity; provided, further, that no cash payment of interest on such Subordinated Debt shall be made (other than payments of interest made from the proceeds of such Subordinated Debt deposited in an escrow account in accordance with Section 9.4 below) until (i) the Borrower has reported two consecutive fiscal quarters of positive EBITDA (as demonstrated in the Compliance Certificates and the related financial statements delivered to the Administrative Agent and the Lenders pursuant to Sections 8.1(a), (b) and (c)) and (ii) the Interest Coverage Ratio is at least equal to 1.00:1.00 on a pro forma basis after giving effect to such payment; provided, further, that no repayment of principal on such Subordinated Debt shall be made prior to the Term Loan Maturity Date or the Revolving Credit Commitment Termination Date;
(3) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Wholly-Owned Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.102.11), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b9.1(c) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent Agents, the Lenders and the Lenders and, if payable by the Borrower, Lender Counterparties and shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c4) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(5) (i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Restatement Effective Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, 77 84 and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d9.1(e) shall not exceed $15,000,000 50,000,000 in aggregate amount at any time outstanding;; and (1)
(e6) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default or an Event of Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries Each Company agrees that it will not, and nor will not it permit any Subsidiary of the Borrower to, create, incur, create, assume or suffer or permit to exist any Debt, including indebtedness for borrowed money or any indebtedness constituting the deferred portion of the purchase price of any property, except:
(a) Debt to any Obligations, whether evidenced by the Lenders pursuant to the Loan DocumentsSenior Subordinated Notes or any other instruments;
(b) intercompany Debt between or among the Borrower to suppliers and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries other trade creditors incurred in the ordinary course of business by such Company and its Subsidiaries;
(c) Senior Debt in the aggregate maximum amount equal to the amount defined as “Senior Debt” under and pursuant to Senior Lender Subordination Agreement; provided, however, the Borrowers shall be permitted to refinance the Senior Debt with another financial institution (a “Replacement Senior Lender”) subject to the satisfaction of the following conditions: (i) the aggregate principal amount of the replacement senior debt to be provided by such Replacement Senior Lender shall not exceed the maximum amount of Senior Debt permitted in accordance with this Section 7.1(c) (the “Replacement Senior Debt”); (ii) the Lenders shall have received not less than thirty (30) days prior written notice of the closing of any Replacement Senior Debt (including copies of all documents relating to such Replacement Senior Debt in “draft” form not less than fifteen (15) Business Days prior to the closing thereof and final copies of such documents promptly upon such closing (the “Replacement Senior Loan Documents”); (iii) the Replacement Senior Loan Documents shall be satisfactory to the Lenders and on terms substantially similar to the Senior Loan Documents, including, without limitation, Debt owed by similar amortization periods with respect to the Operating Subsidiaries or Wholly-Owned Subsidiaries repayment of the Borrower Senior Debt and financial covenants similar to the Borrower financial covenants currently set forth in connection with loans of proceeds of the Loans made by Senior Loan Documents; (iv) the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent Replacement Senior Lender and the Lenders andshall have executed an intercreditor and subordination agreement dated the date of the closing of such Replacement Senior Debt, if payable in such form as may be reasonably required by the Borrower, shall be subordinated Replacement Senior Lender with respect to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Replacement Senior Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the but containing terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, Lenders as the Senior Lender Subordination Agreement; and (iiv) purchase money the net cash proceeds received by Borrowers from the Replacement Senior Debt (including Capital Lease Obligations) secured shall be used by purchase money Liensthe Borrowers to repay the outstanding principal balance due and owing by Borrowers under the Senior Debt, which repayment shall be accompanied by a permanent termination of the Senior Debt and a release on any Liens are permitted under and meet all of on the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;Companies’ assets.
(ed) liabilities of Debt to the Borrower Sellers in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Earnout Payments.
Appears in 1 contract
Debt. The Borrower and (a) Prior to the Operating Guarantee Release Date, no Loan Party will, nor will it permit its Subsidiaries will notto, and will not permit any Subsidiary of the Borrower tocreate, incur, create, assume or permit suffer to exist any Debt, Debt except:
(ai) Debt to the Lenders pursuant to the Loan Documentsincurred under this Agreement;
(bii) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described set forth on Schedule 7.10 hereto 7.09, and renewals, extensions or refinancings of such Debt which that do not increase the outstanding principal amount thereof or change the obligors thereunder except by an amount equal to amounts paid for any accrued interest, breakage, premium, fees and expenses in connection with such refinancings;
(iii) Debt of the Parent or any Subsidiary owing to the Parent or any of its Subsidiaries, provided that (A) such DebtDebt shall not have been transferred to any Person other than the Parent or any of its Subsidiaries and (B) in the case of Debt owed by a Loan Party to a Subsidiary that is not a Loan Party, which do such Debt is subordinated in right of payment on terms acceptable to the Administrative Agent, to the extent permitted by Law and not shorten giving rise to material adverse tax consequences to the maturity Borrower;
(iv) Guarantees of Debt permitted under this Section 7.09(a), provided that a Subsidiary that is not a Loan Party shall not Guarantee Debt that it would not have been permitted to incur under this Section 7.09(a) if it were a primary obligor thereon;
(v) Debt owed in respect of (A) any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds, provided that such Debt shall be repaid in full within 30 days of the incurrence thereof, and (B) the unreimbursed amount of any principal drafts drawn under letters of credit, provided that such drafts shall be reimbursed in full within 5 Business Days of the applicable disbursement;
(vi) other Debt of the Loan Parties; provided that, after giving pro forma effect to the incurrence of such Debt and the terms and provisions application of the proceeds thereof, the Parent shall be in compliance with Section 7.02(a) as of the end of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 6.01(a) or 6.01(b); and
(vii) other Debt of Subsidiaries that are not materially more onerous Loan Parties in an aggregate principal amount not to exceed $100,000,000 outstanding at any time.
(b) On and after the Guarantee Release Date, no Loan Party will permit its Subsidiaries (other than the terms any Subsidiary that is a Loan Party or a Xxxxx Subsidiary) to create, incur, assume or suffer to exist any Debt except:
(i) Debt set forth on Schedule 7.09, and conditions refinancings of such Debt on that do not increase the outstanding principal amount thereof or change the obligors thereunder except by an amount equal to amounts paid for any accrued interest, breakage, premium, fees and expenses in connection with such refinancings;
(ii) Debt of any Subsidiary owing to the Parent or any of its Subsidiaries, provided that such Debt shall not have been transferred to any Person other than the Parent or any of its Subsidiaries;
(iii) Guarantees of Debt of any other Subsidiary that is not a Loan Party permitted under this Section 7.09(b), provided that a Subsidiary shall not Guarantee Debt that it would not have been permitted to incur under this Section 7.09(b) if it were a primary obligor thereon;
(iv) Debt owed in respect of (A) any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds, provided that such Debt shall be repaid in full within 30 days of the incurrence thereof, and (B) the unreimbursed amount of any drafts drawn under letters of credit; provided that such drafts shall be reimbursed in full within 5 Business Days of the applicable disbursement;
(v) Debt of any Subsidiary (A) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Leases, provided that such Debt is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, or (B) assumed in connection with the acquisition of any fixed or capital assets, and any refinancings of such Debt that do not increase the outstanding principal amount thereof except by an amount equal to amounts paid for any accrued interest, breakage, premium, fees and expenses in connection with such refinancings;
(vi) (A) Debt of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary) after the Original Closing Date, incurred prior to the time such Person becomes a Subsidiary (iior is so merged or consolidated), that is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation), (B) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liensa Lien on property acquired by a Subsidiary, which incurred prior to the acquisition thereof by such Subsidiary, that is not created in contemplation of or in connection with such acquisition and (C) Debt refinancing (but not increasing the outstanding principal amount thereof, except by an amount equal to amounts paid for any accrued interest, breakage, premium, fees and expenses in connection with such refinancing) any Debt described in this clause (vi); and
(vii) any other Debt of the Subsidiaries; provided that, at the time of the creation, incurrence or assumption of such Debt and Liens are permitted under and meet after giving effect thereto, the sum, without duplication, of (A) the aggregate outstanding principal amount of all of the requirements of such Debt created, incurred, assumed, or in existence in reliance on this clause (gvii), plus (B) the aggregate outstanding principal amount of all Debt secured by Liens under Section 7.01(y), plus (C) the definition aggregate outstanding amount of Permitted Liens contained Attributable Debt under all Sale and Leaseback Transactions under Section 7.08(c) does not exceed 15% of Consolidated Net Tangible Assets; provided that, notwithstanding anything to the contrary in this Section 1.17.09(b), and (iii) additional unsecured Debt; provided, however, that in no event shall the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not of non-wholly owned Subsidiaries exceed $15,000,000 in aggregate amount 100,000,000 outstanding at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000time.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume assume, or permit to exist any Debt, except:
(a) Debt owing to the Lenders Banks pursuant to the Loan Documents;
(b) intercompany Debt between or among in the Borrower amount disclosed on Schedule 6.9 hereto and any extensions, renewals or refinancings of its Operating Subsidiaries such existing Debt so long as (i) the principal amount of such Debt after such renewal, extension or Wholly-Owned Subsidiaries incurred in refinancing shall not exceed the ordinary course principal amount of business (including, without limitation, such Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower which was outstanding immediately prior to such Subsidiariesrenewal, the proceeds of which loans are used for the purposes permitted by Section 2.10)extension or refinancing, subject to the following requirements: any and all of the (ii) such Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required secured by any assets other than assets securing such Debt, if any, prior to be so evidencedsuch renewal, pledged extension or subordinatedrefinancing;
(c) unsecured Debt under of the Interest Rate Protection Agreements required Borrower owing to be maintained by Section 8.12any Subsidiary or Debt of any Subsidiary owing to the Borrower or another Subsidiary; provided a Student Loan Subsidiary may not incur, providedcreate, howeverassume, that or permit to exist any Debt thereunder may be secured if owing to an Insurance Subsidiary, except any such Debt constitutes a part of existing on the ObligationsClosing Date which is disclosed on Schedule 6.9 hereto;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower under Interest Rate Protection Agreements having an aggregate notional amount at any one time outstanding not to exceed Seventy-Five Million Dollars ($75,000,000.00) and (ii) Debt of a Single Purpose Student Loan Subsidiary under Interest Rate Protection Agreements entered into to mitigate the interest rate risk of Debt incurred by such Single Purpose Student Loan Subsidiary (provided that such Debt is otherwise permitted by clause (e) below), provided that, in each case, each counterparty to such Interest Rate Protection Agreement shall be rated in one of the three highest rating categories of S&P or Moody's (as used in this clause (d) the term "Single Purpose Student Xxxx Xubsidiary" means a Student Loan Subsidiary organized as a separate, limited-purpose entity with certain limitations, including restrictions on the nature of such Student Loan Subsidiary's business and a restriction on such Student Loan Subsidiary's ability to commence a voluntary case or proceeding under the Bankruptcy Code or other insolvency laws without the prior unanimous affirmative vote of all of its directors, including at least one director who must be independent of such Student Loan Subsidiary and its Subsidiaries to Affiliates (or, if such Student Loan Subsidiary is a partnership, without the Trustee and prior affirmative vote of all of such Student Loan Subsidiary's partners, including the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.independent directors of its general partner));
Appears in 1 contract
Samples: Loan Agreement (Uici)
Debt. The Borrower and the Operating Subsidiaries will not(a) Neither Newark, and will not permit any Subsidiary of the Borrower toeither Newark Subsidiary, VCP Exportadora nor VCP shall create, incur, issue or suffer to exist (or permit any of their respective Subsidiaries to create, assume incur, issue or permit suffer to exist exist) any Debt, except:
(ai) with respect to Newark and the Newark Subsidiaries: (A) Debt under and in connection with the Loan Documents (including any related to the Lenders pursuant purchase of Products as described in Section 8.13 and the Export Agreements, and the advances to be made by the Loan Documents;
Newark Subsidiaries to Newark for the prepayment of the sale of Products as contemplated by Section 2.1), (B) Debt under and in connection with the Other Facility as permitted in clause (b), (C) intercompany unsecured Debt between entered into for the sole purpose of performing cash management or among the Borrower and other financial management functions with any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred Affiliates in the ordinary course of business business, (includingD) other unsecured Debt with Affiliates with respect to which each such Affiliate has become a party to the Subordination Agreement by delivery to the Administrative Agent of its executed joinder thereto, without limitation(E) Debt with non-Affiliates that is unsecured or is secured by Property that is neither part of the Collateral nor Capital Stock of Aracruz (or any interests therein, including dividends payable thereon) and (F) until the Borrowing Date, Debt owed by that will be repaid in full from the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by in the Borrower manner contemplated in Section 2.2, and
(ii) with respect to VCP Exportadora and VCP (and their respective Subsidiaries), any additional Debt (with respect to Debt incurred after the date hereof, only so long as there would not be a violation of the Total Debt to Total Capitalization Ratio determined as if the date on which such Subsidiariesadditional Debt is incurred were the last day of a Fiscal Semester); it being understood that the Debt of Newark and the Newark Subsidiaries is limited to that permitted in clause (i).
(b) Newark and the Newark Subsidiaries may enter into the Other Facility at any time and, from time to time, incur Debt thereunder so long as, as of the date of the issuance of any such Debt (and as of the date of any amendment, restatement or other modification thereof that increases the Other Debt Service Amount with respect to any Payment Date through and including the Final Maturity Date or increases the principal amount of any Debt issued thereunder; it being understood that any amendments, restatements or other modifications of any such Debt that do not have any such effect need not comply with the following): (i) no Default then exists or would result from the incurrence of such Debt (or amendment or modification thereof), (ii) for so long as the obligations under the Loans remain outstanding, the payment dates of all Debt issued under the Other Facility shall be the Payment Dates (with the exception that the first payment date applicable to any such Debt may be the second Payment Date after the issuance of such Debt), (iii) the net proceeds of which loans are used such Debt shall promptly (and, in any event, within one Business Day thereof) be applied to the repayment of any of Newark's other Debt (including the repayment of the prepayment for the purposes permitted sale of Products contemplated by Section 2.102.1 or the repayment of any other Debt under the Other Facility), subject the making of a payment for Products previously purchased by Newark or to make an export pre-payment to VCP or any of its Brazilian Subsidiaries (including VCP Exportadora) for future Products, (iv) the Agents shall have received from Newark, the Newark Subsidiaries and the Other Agent confirmation that, Credit Agreement 44 pursuant to the following requirements: any Security Agreement, Newark and all (to the extent the Newark Subsidiaries are obligors under the Other Facility) the Newark Subsidiaries have granted the creditors under the Other Facility a security interest in the Sales Collateral and the Collection Account and that the creditors under the Other Facility agree to share such security interest (and otherwise manage the collections on the Receivables) in the manner described in the Security Agreement, (v) the conditions of clause (c) shall have been satisfied and (vi) the Agents shall have received a certificate of the chief financial officer or a more senior officer of VCP certifying that each of the above conditions has been satisfied.
(c) Before any Debt permitted under the Other Facility may be incurred (it being understood that the following provisions shall apply with respect to each issuance of Debt under the Other Facility), VCP shall:
(i) for each remaining Interest Period through the Final Maturity Date, provide the Agents a certificate (which the Administrative Agent shall promptly provide to each of the Lenders) of its treasurer, chief financial officer, chief accounting officer or more senior officer (with reasonable detail as to calculations) in which is included (or to which is attached) a projection (based upon VCP's reasonable estimates at such time) of: (A) the Projected Available Collections for such Interest Period, (B) the Debt Service Amount for the Payment Date at the end of such Interest Period (provided that interest payable shall be calculated using an interest rate equal to the then-current interest rate plus an additional 1% per annum), (C) the ratio of: (1) the Bank Percentage (to the extent applicable, as to be established pursuant to this Section 9.1(b2.3(e) shall of the Security Agreement in connection with the issuance of such Debt under the Other Facility) of the amount described in clause (A) to (2) the amount described in clause (B) and (D) if any of such ratios for any Interest Period is less than 1:1, the amount of additional collections that would be unsecuredrequired during such Interest Period in order to obtain such ratio for such Interest Period, shall and
(ii) if any additional collections are projected to be evidenced by instruments satisfactory required pursuant to clause (i)(D), provide to the Administrative Agent which will be pledged either: (A) one or more supply contracts, in form and substance reasonably satisfactory to the Majority Lenders and enforceable by the Administrative Agent Agent, whereby one or more Person(s): (1) organized in an OECD Country (including Brazil) and (2) with a long-term foreign currency debt rating from each of Standard & Poor's and Xxxxx'x at least equal to the then-applicable long-term foreign currency debt rating of VCP, agrees (in the aggregate for all such Person(s)) to deliver (at the benefit request of the Administrative Agent at any time, and from time to time: (x) during the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to existence of an Event of Default or (y) upon the Administrative Agent's receipt from Newark of a certificate of its treasurer, providedchief financial officer or more senior officer that such request is necessary to avoid a Specified Event; it being understood that the Administrative Agent shall, howeverupon receipt of such request from Newark, promptly deliver such request to such other Person(s)) sufficient products to Newark the sale of which will generate Dollar collections at least equal to the aggregate amount of all additional collections so projected to be required for all Interest Periods through the Final Maturity Date (it being understood that temporary advances made from time to time any projected excess in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower Interest Periods shall not be required applied to offset any additional collections projected to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the required with respect to other Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and Periods except to the extent that at Credit Agreement 45 the time of the incurrence of such new Debt Newark has irrevocably instructed the Collateral Agent to retain in the Collection Subaccount all or any portion of any such projected excess for application as Carry-Over Amounts in any later Interest Period(s)), which deliveries may be requested by the Administrative Agent at any time through the date that is five Business Days after the Payment Date at the end of the last Interest Period for which any additional collections are so projected to be required (it being understood that the Administrative Agent may make such requests only during the existence of an Event of Default or at the request of Newark if Newark expects that it will need to receive such liabilities will not constituteproducts in order to ensure that no Event of Default described in Section 9.1(o) shall occur, cause and that any collections relating to such delivered products would be applied to pay any amounts then payable under the Loan Documents and no such amounts would be payable to the Other Agent for application in connection with the Other Facility), or result in a Default; and(B) such other additional credit enhancement as the Majority Lenders may agree.
(fd) Debt Should the Majority Lenders reasonably determine that the Projected Available Collections identified in the certificate delivered by VCP pursuant to clause (c)(i) are greater than the amount that should be reasonably estimated, the Majority Lenders may (within seven New York Business Days of their receipt of such projections) deliver notice to VCP, Newark and the Borrower and its Subsidiaries Administrative Agent of such determination. Should VCP receive such notice within such period, VCP shall either deliver amended projections for the Lenders' review (subject to the Trustee approval process described in this paragraph) or engage PricewaterhouseCoopers or another independent auditor or other Person acceptable to the Majority Lenders, at the expense of VCP, to analyze the projections and either certify to the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, Lenders that such debt may not projections are reasonable estimates by VCP or, if not, to work with VCP to establish projections that can be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000so certified.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries Each Issuer covenants that it will not, and will not permit any Subsidiary of the Borrower its Subsidiaries to, incur, create, assume or permit suffer to exist any Debt, except:
(ai) Debt to Obligations under this Agreement, the Lenders pursuant to Notes and the Loan other Transaction Documents;
(bii) intercompany Obligations under the Credit Agreement in an aggregate outstanding principal amount of $20,000,000 for the revolving credit facility thereunder and $30,000,000 for the term loan facility thereunder, but only if such obligations are subject to the Intercreditor Agreement and the Intercreditor Agreement is in full force and effect;
(iii) Debt between secured by Liens permitted by paragraph 6C(iv), and extensions, renewals and refinancings thereof; provided that such Debt shall not exceed the cost of the applicable property being leased or among acquired and that the Borrower and aggregate amount of all such Debt at any time outstanding shall not exceed $500,000;
(iv) Debt of its Operating Subsidiaries or the Company to any domestic Wholly-Owned Subsidiaries Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company or another domestic Wholly-Owned Subsidiary; provided that such Debt shall be subordinated to the obligations of the Issuers and the Guarantors under this Agreement, the Notes and the other Transaction Documents, in a manner reasonably satisfactory to the Required Holder(s);
(v) Subordinated Debt;
(vi) Hedging Obligations incurred for bona fide hedging purposes and not for speculation;
(vii) Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers in connection with Acquisitions permitted under paragraph 6F; and purchasers in connection with dispositions permitted under paragraph 6F;
(viii) other unsecured Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $250,000;
(ix) Accounts payable and trade debt arising in the ordinary course of the business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans Company or one of proceeds its Subsidiaries;
(x) Any non-recourse obligation of the Loans made by the Borrower to such Subsidiaries, the proceeds Company or one of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to its Subsidiaries arising from a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time discounting transaction in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Defaultbusiness; and
(fxi) Debt of Obligations under the Borrower and its Subsidiaries to the Trustee Existing Prudential Notes and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Existing Note Agreement.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to the Lenders pursuant to 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;.
(b) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries existing on the date hereof that is reflected in the Financial Statements, including the Existing Senior Notes, and any Permitted Refinancing Debt in respect thereof.
(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 ninety (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.
(d) Debt associated with bonds or surety obligations required by Governmental Requirements in connection with the operation of the Oil and Gas Properties.
(e) intercompany Debt between the Borrower and any Subsidiary or between Subsidiaries to the Trustee 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 Indebtedness on terms set forth in the Guaranty Agreement.
(f) endorsements of negotiable instruments for collection in the ordinary course of business.
(g) Permitted Additional Senior Notes issued by the Borrower provided that (i) 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), (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 five years after its issuance, (iv) the terms of such Debt are not materially more onerous, taken as a whole, than the terms of this Agreement and the Noteholders under other Loan Documents (v) such Debt and evidenced any guarantees thereof are on prevailing market terms for similar situated companies and governed by(vi) the Subordinated GuaranteesBorrowing Base is reduced as pursuant to Section 2.07(f) and prepayment is made to the extent required by Section 3.04(c)(iv); provided, however, that such debt may and any Permitted Refinancing Debt in respect thereof.
(h) Indebtedness of Borrower in respect of guarantee obligations of Subsidiaries which do not be initially incurred in the aggregate exceed $50,000,000 at any one time outstanding.
(i) Non-Recourse Debt of (i) the Riley Ridge SPV not to exceed $300,000,000 and (ii) other Subsidiaries not to exceed $100,000,000 in the Holdings Senior Notes may aggregate at any one time outstanding.
(j) other Debt not be issued) after August 1, 2000to exceed $40,000,000 in the aggregate at any one time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Cimarex Energy Co)
Debt. The Borrower Create, incur, assume or suffer to exist any Debt other than:
(i) Debt incurred pursuant to this Agreement;
(ii) unsecured Subordinated Debt and Permitted Subordinated Debt;
(iii) accrued expenses, current trade payables and other current liabilities arising in the Operating Subsidiaries will not, ordinary course of business and will not permit incurred through the borrowing of money;
(iv) unsecured Debt (x) of any Subsidiary to the Borrower (y) of any Subsidiary to a Subsidiary and (z) of the Borrower toto any Subsidiary, incur, create, assume or permit to exist provided that any Debt, except:
such Debt under this clause (aiv) Debt to the Lenders pursuant to the Loan Documents;
(b) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries is incurred in the ordinary course of business consistent with past practice and is evidenced by one or more promissory notes pledged to the Agent pursuant to the Security Agreements;
(v) Contingent Obligations permitted by SECTION 6.4;
(vi) other Consolidated Debt (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt liens described in clauses (E) and Liens are permitted under and meet all of the requirements of clause (gG) of the definition of Permitted Liens contained and Capital Lease Obligations) in Section 1.1, an aggregate principal amount at any time outstanding not to exceed $30,000,000 for the Borrower and its Subsidiaries;
(iiivii) additional unsecured DebtDebt of the Borrower under any Interest Rate Protection Agreements (if any) entered into with one or more Lenders in respect of the Debt incurred pursuant to this Agreement; provided that the notional amount of all such agreements at any time shall not exceed the aggregate amount of the Commitments at such time;
(viii) Debt incurred pursuant to the Swingline Note; and
(ix) Debt incurred pursuant to the ELLF. The Lenders shall use their best commercially reasonable efforts to respond to a request from the Borrower for approval of Subordinated Debt (on terms acceptable to the Required Lenders in their sole discretion) within five (5) Business Days after the Agent's and the Lender's receipt of information regarding the amount and material terms thereof; provided, however, that the aggregate principal amount of the failure to approve or disapprove such Subordinated Debt referred to in this Section 9.1(d) during such period shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000constitute approval.
Appears in 1 contract
Samples: Loan Agreement (American Oncology Resources Inc /De/)
Debt. The Borrower and the Operating Subsidiaries will shall not, and will shall not permit any Subsidiary of the Borrower its Subsidiaries to, directly or indirectly, create, incur, create, assume or permit to exist guaranty, or otherwise become or remain directly or indirectly liable with respect to, any Debt, except:
(ai) the Borrower and the Subsidiary Guarantors may become and remain liable with respect to the Obligations;
(ii) the Borrower and its Subsidiaries may become and remain liable with respect to unsecured Debt (in addition to Debt otherwise permitted by this Section 5.02(a)) in an aggregate outstanding principal amount which, when added to the aggregate liability of the Borrower and its Subsidiaries with respect to Contingent Obligations incurred pursuant to Section 5.02(d)(vi), does not exceed $25,000,000;
(iii) any wholly-owned Subsidiary of the Borrower other than any Foreign Subsidiary may become and remain liable with respect to Debt to the Lenders pursuant Borrower; provided that any payment by any Subsidiary Guarantor of the Obligations shall result in a pro tanto reduction of the amount of any intercompany Debt owed by such Subsidiary to the Loan DocumentsBorrower or to any of its Subsidiaries for whose benefit such payment is made;
(biv) intercompany Debt between or among the Borrower and its Subsidiaries, as applicable, may remain liable with respect to the Debt described in SCHEDULE 5.02
(A) annexed hereto and with respect to any renewals, refundings or refinancings thereof to the extent that any such renewal, refunding or refinancing does not increase the original principal amount thereof or grant collateral security not provided for under terms of its Operating Subsidiaries the original Debt as of the Effective Date;
(v) the Borrower and the Subsidiary Guarantors may become and remain liable with respect to the Senior Notes and any renewals, refundings or Whollyrefinancings of all or any part of the Senior Notes consummated on terms and conditions acceptable to each of the Lenders (which terms shall include, without limitation, no amortization, mandatory prepayments or other required payments shall be required prior to ninety-Owned Subsidiaries incurred one (91) days after the Termination Date);
(vi) Universal Coach Parts, Inc. may become and remain liable under that certain promissory note dated April 17, 1995, in the ordinary course principal amount of business $890,000 payable to Xxxxxxxxxxx Parts and Equipment, Inc.; provided the principal amount outstanding thereunder at no time exceeds $890,000;
(vii) one or more of the Borrower's Foreign Subsidiaries organized under the laws of Canada or any Canadian Province may become and remain liable with respect to Debt in an aggregate principal amount not exceeding U.S. $25,000,000 (or the Canadian equivalent thereof) (the "Canadian Debt"), which aggregate amount shall include any such Debt outstanding on the date hereof or any renewal, refunding or refinancing thereof and any such Debt advanced by the Borrower, and the Borrower may become and remain liable with respect to any guaranty of the Canadian Debt; and
(viii) subject to Section 2.07(b)(iii)(B), the Borrower may become and remain liable with respect to unsecured Debt incurred pursuant to a Financing consummated on terms and conditions acceptable to each of the Lenders (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries amount, maturity, amortization, interest rate, premiums, fees, covenants, events of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiariesdefault, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders remedies and, if payable by the Borrowerapplicable, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000terms).
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will not, and It will not permit incur or assume any Subsidiary of additional Debt following the Borrower to, incur, create, assume or permit to exist any Debt, exceptClosing Date other than:
(ai) Lender Debt;
(ii) Debt existing on the Closing Date and described in Schedule XI, and unsecured refinancings of such Debt; provided that (w) the principal amount of such refinanced Debt does not exceed the principal amount of, plus accrued interest on, the Debt so refinanced (plus the amount of reasonable costs, fees and expenses incurred in connection therewith) on the date of such refinancing, (x) the maturity date for such refinanced Debt shall be no earlier than the maturity date of the Debt being so refinanced, (y) the terms of such refinanced Debt shall not require any scheduled payment of principal or interest prior to the Lenders dates contemplated for the payment of such amounts pursuant to the Loan Documentsterms of the Debt to be so refinanced, and (z) such refinanced Debt shall be subject to documentation in form and substance reasonably satisfactory to the Lender;
(biii) intercompany Debt between accrued expenses (including salaries, accrued vacation and other compensation), current trade or among the Borrower other accounts payable and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred other current liabilities arising in the ordinary course of business and not incurred through the borrowing of money, provided that the same shall be paid when due except to the extent being contested in good faith and by appropriate proceedings;
(includingiv) loans and advances by any Borrower to any other Borrower, without limitation, if such loans and advances are permitted by applicable law and would not render either party insolvent;
(v) unsecured Debt owed issued after the date of this Agreement by the Operating Subsidiaries Parent or Wholly-Owned Subsidiaries of the any other Borrower to the Borrower sellers in connection with loans Permitted Acquisitions, including Debt consisting of proceeds Contingent Purchase Price Obligations, in an aggregate principal amount not exceeding $10,000,000 outstanding at any time;
(vi) Debt of the Loans made Parent in respect of the Senior Notes, in an aggregate principal amount not exceeding $125,000,000 outstanding at any time, and the guarantees thereof by the Borrower to such Subsidiaries, Parent's domestic Subsidiaries as required under the proceeds Indenture;
(vii) Debt consisting of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all obligations of the Borrowers in respect of Hedge Agreements;
(viii) purchase money Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and Borrowers incurred solely to finance the Lenders andpayment of all or part of the purchase price of any equipment, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time real property or other fixed assets acquired in the ordinary course of business business, including Debt in respect of Capital Lease obligations, and any renewals, refinancings or replacements thereof (subject to the limitations on the principal amount thereof set forth in this clause (viii)), and other debt of the Borrowers that is unsecured, including Debt of others guaranteed by a Borrower, which purchase money indebtedness and other unsecured indebtedness shall not to exceed $100,000 5,000,000 in aggregate principal amount outstanding at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinatedtime;
(cix) unsecured Debt under of the Interest Rate Protection Agreements required Borrowers that is incurred to be maintained refinance the Debt evidenced by Section 8.12the Senior Notes, provided, however, that Debt thereunder may be secured if so long as (w) the maturity date for such Debt constitutes a part shall be no earlier than the maturity date of the Obligations;
Senior Notes; (ix) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous shall be no greater than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Senior Notes plus all reasonable costs, fees and expenses related to such refinancing; (y) the terms of such Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 require any scheduled payment of principal prior to the Scheduled Maturity Date; and (z) such Debt shall be subject to documentation in aggregate amount at any time outstandingform and substance reasonably satisfactory to the Lender;
(ex) liabilities Debt incurred in connection with the financing of insurance premiums, so long as such Debt has a maturity of one year or less;
(xi) Debt of the Borrower in respect Borrowers consisting of unfunded vested benefits under any Plan if and intercompany payables owing to Foreign Subsidiaries, to the extent that arising out of the existence collection by the Borrowers of Receivables owing to such liabilities will not constitute, cause or result in a DefaultForeign Subsidiaries; and
(fxii) Debt that has been subordinated to the Lender Debt on terms and conditions satisfactory to the Lender. For the purposes of determining compliance with this clause (e), in the event that an item of Debt meets the criteria of more than one of the Borrower types of Debt described in subclauses (i) through (xi) above, the Borrowers, in their reasonable discretion and its Subsidiaries consistent with the primary nature of such item of Debt, shall classify such item of Debt and only be required to include the Trustee amount and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that type of Debt in one of such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000subclause.
Appears in 1 contract
Samples: Loan and Security Agreement (Matria Healthcare Inc)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit NCH or any Subsidiary of the Borrower to, incur, create, assume or permit to exist any Debt, except:
(a) Debt to the Lenders pursuant to the Loan Documents;
(b) Subordinated Debt of NCH;
(c) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b9.1(c) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, and shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(cd) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.128.14, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(e) (i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d9.1(e) shall not exceed $15,000,000 25,000,000 in aggregate amount at any time outstanding;
(ef) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(fg) Debt of the Borrower in the form of a revolving credit facility not to exceed $50,000,000 in aggregate principal amount at any time outstanding which is either unsecured or is secured only by accounts of the Borrower and its Subsidiaries Subsidiaries, books and records related thereto and proceeds thereof and as to which the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may advance rate for advances made thereunder does not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000exceed 75% of eligible accounts.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries Parent will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume assume, or permit to exist any Debt, except:
(a) Debt to the Lenders Agent and the Banks pursuant to the Loan DocumentsDocuments and existing Debt described on Schedule 11.1;
(b) intercompany Intercompany Debt between owed by any Subsidiary to the Parent or among any other Subsidiary; provided that (i) the Borrower obligations of each obligor of such Debt must be subordinated in right of payment to any liability such obligor may have for the Obligations from and after such time as any portion of its Operating Subsidiaries the Obligations shall become due and payable (whether at stated maturity, by acceleration or Wholly-Owned Subsidiaries otherwise), (ii) such Debt must be incurred in the ordinary course of business and on terms customary for intercompany borrowings or must be made on such other terms and provisions as the Agent may reasonably require, and (includingiii) the Parent or its applicable Subsidiary shall have granted the Agent a Lien on its right, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower title and interest in connection with loans of proceeds of the Loans made by the Borrower and to such Subsidiaries, Debt and all Liens securing the proceeds of which loans are used for payment thereof;
(c) Debt not to exceed Two Hundred Fifty Thousand Dollars ($250,000) in the purposes aggregate at any time outstanding secured by purchase money Liens permitted by Section 2.10), subject 11.2;
(d) Obligations to reimburse worker's compensation insurance companies for claims paid by such companies on the Parent's or one of the Subsidiaries' behalf in accordance with the policies issued to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent Parent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time Subsidiaries;
(e) Guaranties incurred in the ordinary course of business with respect to surety and appeal bonds, performance and return - of - money bonds, and other similar obligations not to exceed $100,000 in aggregate principal amount exceeding at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
outstanding Two Hundred Fifty Thousand Dollars (c$250,000) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstandingliability;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt arising in connection with any interest rate swap, cap, collar or similar agreements entered into to enable Borrower to fix or limit its actual interest expense;
(g) Debt arising under the terms of the Borrower and its Subsidiaries to Bond Documents; and
(h) Debts, other than the Trustee and Debts specifically described in clauses (a) through (g) of this Section 11.1, which in the Noteholders under aggregate do not exceed Five Hundred Thousand Dollars (and evidenced and governed by$500,000) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000at any time outstanding.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will notNot, and will not permit any Subsidiary of the Borrower other Loan Party to, create, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to Obligations under this Agreement and the Lenders pursuant to the other Loan Documents;
(b) intercompany Debt between or among secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided that the aggregate amount of all such Debt at any time outstanding shall not exceed $125,000;
(c) Debt of Borrower and to any of its Operating Subsidiaries or domestic Wholly-Owned Subsidiaries Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to Borrower or another domestic Wholly-Owned Subsidiary; provided that unless waived by the Administrative Agent, such Debt shall be evidenced by a demand note in form and substance reasonably satisfactory to Administrative Agent and pledged and delivered to Administrative Agent pursuant to the Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of Borrower hereunder in a manner reasonably satisfactory to Administrative Agent;
(d) unsecured 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 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder);
(g) Contingent Liabilities arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 11.5;
(h) the Colon Debt: provided, however, that (i) such Debt shall at all times be subordinated to the Obligations on the terms and conditions set forth in the documentation evidencing such Debt, (ii) the aggregate outstanding principal amount of such Debt shall not at any time exceed $752,500, and (iii) such Debt shall at all times be unsecured;
(i) guarantees by a Borrower of the obligations of any other Borrower arising pursuant to a lease or license by such Borrower of real or personal property in the ordinary course of the business of such Borrower, provided that such lease or license is not otherwise prohibited under the Loan Documents;
(j) Debt in respect of appeal, bid, performance or surety or similar bonds issued for the account of any Borrower in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used each case other than for the purposes permitted by Section 2.10an obligation for money borrowed), subject to in an aggregate outstanding amount not at any time exceeding $100,000;
(k) Debt arising from the following requirements: any and all honoring by a bank or other financial institution of the Debt permitted pursuant to this Section 9.1(b) shall be unsecureda check, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time draft or similar instrument drawn against insufficient funds in the ordinary course of business business, provided, that, such Debt is extinguished within two (2) Business Days of its incurrence;
(l) other unsecured Debt in an aggregate outstanding amount not at any time exceeding $100,000;
(m) Debt owing by Cyalume France to HSBC France in the maximum aggregate outstanding principal amount not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower EUR 200,000 pursuant to the Borrower shall not be required to be so evidenced, pledged or subordinated;
an unlimited duration overdraft (cdécouvert à durée indéterminée) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debtrenewable each year; provided, however, that the aggregate principal amount none of the Debt referred other Loan Parties are liable or obligated with respect to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a DefaultDebt; and
(fn) Debt owing by Cyalume France to Banque Palatine (i) in the maximum aggregate outstanding principal amount not to exceed EUR 200,000 pursuant to an unlimited duration overdraft facility (facilité de xxxxxx x durée indéterminée) and (ii) in the maximum aggregate principal amount not to exceed EUR 350,000 pursuant to a MCNE facility (mobilisation des créances néxx xur l’étranger) either by way of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guaranteesa facility secured by an assignment by way of guarantee of receivables or by a sale on discount of receivables; provided, however, that none of the other Loan Parties are liable or obligated with respect to such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Debt.
Appears in 1 contract
Samples: Credit Agreement (Cyalume Technologies Holdings, Inc.)
Debt. The Borrower and (i) Other than indebtedness (1) where, in connection with the Operating Subsidiaries will notrelease of a Mortgaged Property, and will not permit any Subsidiary the net proceeds thereof are applied to the repayment of the Loan in accordance with SECTION 2.5 or (2) that is Permitted Indebtedness, neither Borrower towill incur or assume any Indebtedness for borrowed money not existing as of the date hereof which is secured by a Lien on any Mortgaged Property. Neither Borrower shall have at any time outstanding Indebtedness (including outstanding amounts under the Note which shall be allocated to each Borrower in proportion to the relative values of the Mortgaged Properties owned by the respective Borrowers determined pursuant to the Initial Appraisals or, if obtained, the Interim Appraisal or the Second Appraisals) which exceeds seventy percent (70%) of the Gross Asset Value of Borrower's assets (including the Mortgaged Properties). Neither Borrower shall have, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to the Lenders pursuant to the Loan Documents;
(b) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or WhollyIndebtedness (other than Permitted Indebtedness) which is recourse to such Borrower (other than customary indemnification, recourse carve-Owned Subsidiary of the Borrower to the Borrower shall out and similar contingent obligations) and which does not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt currently exist on the Closing Date. The outstanding principal under the Note shall at no time exceed seventy percent (70%) of the aggregate value of the Mortgaged Properties then subject to the Mortgage determined pursuant to the Initial Appraisals or, if obtained, the Interim Appraisal or the Second Appraisals.
(ii) purchase For so long as the Interest Guaranty has not terminated in accordance with SECTION 12.1, Guarantor shall not at any time have total Indebtedness for borrowed money Debt (determined on a consolidated basis but, for Persons in which Guarantor holds a direct or indirect ownership interest (including Capital Lease ObligationsSubsidiaries) secured by purchase money Liensbut less than 100% of such ownership interests, total Indebtedness shall only include Guarantor's pro-rata share of the Indebtedness of such Person), which Debt and Liens are permitted under and meet all of the requirements of clause exceeds seventy percent (g70%) of the definition Gross Asset Value of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that Guarantor's assets. Compliance by Guarantor with the aggregate principal amount foregoing covenant shall be verified on a quarterly basis as of the Debt referred end of each quarter by the financial statements delivered pursuant to SECTION 5.1(j) For so long as the Interest Guaranty is in this Section 9.1(d) shall effect, Guarantor will not exceed $15,000,000 in aggregate amount have outstanding at any time outstanding;
recourse Indebtedness (eother than indemnification, recourse carve-out and similar contingent obligations) liabilities in excess of the Borrower in respect fifty million dollars ($50,000,000). Guarantor hereby agrees that any Indebtedness of unfunded vested benefits Guarantor owed to any wholly-owned Affiliate of Guarantor is hereby and shall remain subordinated to Guarantor's obligations under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000this Agreement.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume or permit to exist any Debt, except:except (subject to the proviso below):
(a) Debt to the Lenders pursuant to the Loan Documents;
(b) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12entered into in compliance with SECTION 8.16; PROVIDED, provided, howeverHOWEVER, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(ic) existing Debt in the principal amounts and as otherwise described on Schedule SCHEDULE 7.10 hereto and renewalshereto;
(d) Debt of the Borrower incurred to finance the acquisition, extensions construction, installation or refinancings improvement of any capital assets; PROVIDED that (i) such Debt is incurred within [*] days of such Debt which do not increase acquisition or the outstanding principal amount completion of such Debtconstruction, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Dateinstallation or improvement, (ii) purchase money any such Debt (including Capital Lease Obligations) secured by purchase money Liensincurred in connection with any particular acquisition, which Debt and Liens are permitted under and meet all construction, installation or improvement shall not exceed [*]% of the requirements cost of clause (g) of the definition of Permitted Liens contained in Section 1.1such acquisition, construction, installation or improvement, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the all Debt referred to in permitted by this Section 9.1(dCLAUSE (D) or a refinancing thereof permitted by CLAUSE (I) below shall not exceed $15,000,000 in aggregate amount 1,000,000 at any time outstanding;
(e) Subordinated Debt of the Borrower which has been approved by the Administrative Agent and the Required Lenders in writing;
(f) Eligible Secured Debt;
(g) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and;
(fh) intercompany Debt between or among the Borrower and any of its Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of (x) the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by SECTION 2.10 and (y) other loans constituting Eligible Secured Debt made by other lenders, the proceeds of which are used to purchase assets to be used in the construction and operation of the Network), subject to the following requirements: any and all of the Debt permitted pursuant to this CLAUSE (H) (i) shall not exceed $1,000,000 in aggregate principal amount outstanding (exclusive of any loans made by the Borrower to PFE pursuant to SECTION 2.10(B)), (ii) shall be unsecured, (iii) shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent (or the Collateral Agent, if the Collateral Agency Agreement is in effect) for the benefit of the Administrative Agent and the Lenders, and (iv) shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent; PROVIDED, HOWEVER, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to meet the requirements of CLAUSE (III) or CLAUSE (IV) preceding;
(i) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of CLAUSE (G) (including SUBCLAUSES (I), (II), (III) and (IV) thereof) of the definition of Permitted Liens contained in SECTION 1.1;
(j) Debt of the Borrower incurred to refinance any Debt referred to in CLAUSE (C), (D) or (E) above; PROVIDED that (i) the principal amount of any such Debt does not exceed the principal amount of, plus accrued interest and its Subsidiaries any prepayment premiums applicable to, the Debt refinanced thereby plus any commitment fees or any other out-of-pocket expenses incurred in connection with such refinancing, (ii) any such Debt has a scheduled final maturity date that is on or after the scheduled final maturity date of the Debt refinanced thereby, (iii) any such Debt has a weighted average life to maturity that is equal to or longer than the remaining weighted average life to maturity of the Debt refinanced thereby, determined immediately prior to giving effect to such refinancing, (iv) any such Debt does not include any provisions that may require mandatory Repayment thereof prior to scheduled maturity, other than scheduled repayments taken into consideration in determining compliance with CLAUSE (III) above, and does not include other provisions that are materially more burdensome taken as a whole than the provisions included in the Debt being refinanced (except that Eligible Secured Debt that is incurred to refinance other Eligible Secured Debt permitted by this SECTION 9.1 may have prepayment provisions that are substantially the same as those applicable to the Trustee Loans hereunder), (v) any such Debt shall not be Guaranteed or secured by any Lien unless the Debt being refinanced was Guaranteed or secured (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 Noteholders under Debt being refinanced), except that Eligible Secured Debt that is incurred to refinance other secured Debt permitted by SECTION 9.1 may be secured by the Security Documents if the assets securing such refinanced secured Debt become Collateral effective upon such refinancing, and (vi) if the Debt being refinanced is Subordinated Debt, then any Debt incurred to refinance such Subordinated Debt shall be subordinated to the Obligations on terms no less favorable to the Lenders than the terms of the Subordinated Debt being refinanced;
(k) Debt consisting of Qualifying Fiber or Conduit Purchases entered into in the ordinary course of business; and
(l) Guaranties by the Borrower of Debt of its Subsidiaries, other than PRE, permitted pursuant to this Agreement, and evidenced Guaranties by the Subsidiaries of the Borrower, other than PRE, of Debt of the Borrower permitted pursuant to this Agreement; PROVIDED, HOWEVER, notwithstanding the foregoing or anything to the contrary contained in this Agreement, (i) PRE shall not incur, create, assume or permit to exist any Debt other than the Debt referred to in CLAUSE (A) preceding and governed byGuarantees of Eligible Secured Debt referred to in CLAUSE (F) preceding, (ii) PFE shall not incur, create, assume or permit to exist any Debt other than the Debt referred to in CLAUSE (A) preceding and Guarantees of Eligible Secured Debt referred to in CLAUSE (F) preceding and subordinated, intercompany Debt owed to the Borrower referred to in CLAUSE (H) preceding, and (iii) the Subordinated Guarantees; providedBorrower will not, howeverand will not permit any Subsidiary of the Borrower to, that such debt may not be initially incurred (incur, create, assume or permit to exist any Debt which is secured by any Lien created, evidenced or governed by any of the Security Documents other than the Obligations and the Holdings Senior Notes may not be issued) after August 1, 2000other Eligible Secured Debt.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will notshall not create or incur or allow to be created, and will not incurred or exist, or permit any Subsidiary of the Borrower toits subsidiaries to create or incur or allow to be created, incurincurred or exist, create, assume or permit to exist any Debt, exceptexcept each of the following forms of Debt, individually and not in the aggregate:
(a) Debt to accounts payable incurred or created in the Lenders pursuant to the Loan Documentsordinary course of Borrower’s business;
(b) intercompany Debt between incurred or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred created in the ordinary course of Borrower’s business and which does not exceed $5,000,000 in the aggregate (includingwhich shall not include any Debt described in clauses (c) and (d));
(c) Debt incurred or created solely for the purpose of financing the acquisition of property (other than real property), without limitationleasehold improvements and equipment for use in Borrower’s business and which does not exceed $15,000,000 in the aggregate;
(d) Debt which is junior and subordinate in right of payment to Borrower’s obligations to Lender under the Loan Documents (“Junior Debt”) so long as, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower prior to the Borrower creation of such Junior Debt, unless such Junior Debt is described in connection with loans of proceeds of the Loans made by the Borrower clauses (a) through (c) above, Lender has consented in writing to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10Junior Debt (such consent not to be unreasonably withheld), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent Lender and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to holder of such Junior Debt have entered into a subordination agreement in form and substance reasonably satisfactory to Lender providing for the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary subordination of the Borrower Junior Debt to the obligations of Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured DebtLoan Documents; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;and
(e) liabilities Debt existing on the Restatement Date and set forth on Schedule 6.03(e) attached hereto. For the avoidance of the Borrower in respect doubt, Schedule 6.03(e) includes a true and complete list and description of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) all Debt of Borrower existing on the Borrower and its Subsidiaries to the Trustee and the Noteholders under Restatement Date, regardless of whether any such Debt is permitted by clauses (and evidenced and governed bya) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred through (and the Holdings Senior Notes may not be issuedd) after August 1, 2000above.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will notNot, and will not permit any Subsidiary of the Borrower other Loan Party to, create, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to Obligations under this Agreement and the Lenders pursuant to the other Loan Documents;
(b) intercompany Debt between of any Guarantor owing to the Company or among to any other Guarantor; provided that to the Borrower extent such Debt shall be evidenced by any note or instrument, such instrument shall be a demand note in form and substance reasonably satisfactory to the Administrative Agent and pledged and delivered to the Administrative Agent pursuant to the Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Company hereunder in a manner reasonably satisfactory to the Administrative Agent;
(c) Subordinated Debt, provided that (A) immediately before and after (on a pro forma basis acceptable to the Administrative Agent and supported by such certificates required by the Administrative Agent) the incurrence of any such Subordinated Debt, no Unmatured Event of Default or Event of Default shall exist and the Company shall be in pro forma compliance with all financial and other covenants contained herein as of the date of incurrence of such Subordinated Debt and for the following year and (B) all agreements, documents and instruments relating to such Subordinated Debt shall have been delivered to and approved by the Administrative Agent and the Required Lenders prior to the incurrence of such Subordinated Debt;
(d) Hedging Obligations;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased (and as such amount is reduced from time to time) and no modifications of the terms thereof which are less favorable to the Company or more restrictive on the Company in any material manner shall be permitted;
(f) the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder);
(g) Contingent 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 11.4;
(h) Earnouts with respect to Permitted Acquisitions made by the Company;
(i) Trade accounts payable and accrued expenses arising in the ordinary course which are current or past due only in an amount which is not material in the aggregate for the Company and its Operating Subsidiaries on a consolidated basis, or Whollywhich are being contested in good faith by appropriate proceedings and for which adequate reserves are maintained on the books of the Company;
(j) Debt which is non-Owned Subsidiaries recourse to the Company or its Subsidiaries, provided that the aggregate amount of such non-recourse Indebtedness does not exceed $10,000,000 and such non-recourse terms and the other terms of such financing are acceptable to the Administrative Agent;
(k) Debt incurred to finance insurance premiums in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries consistent with past practices of the Borrower Company;
(l) Debt of Subsidiaries and Joint Ventures which are not Guarantors owing to the Borrower in connection with loans Company or a Guarantor not exceeding an aggregate amount equal to the book value of proceeds three percent (3%) of the Loans made by the Borrower to Total Assets; provided, that any such SubsidiariesDebt shall reduce, dollar for dollar, the proceeds of which loans are used for the purposes available transactions permitted by Section 2.1011.6(g), subject ;
(m) Debt represented by the subtraction of Adjusted Off-Balance Sheet Liabilities from Off-Balance Sheet Liabilities;
(n) Debt (other than Debt to the following requirements: any Principals) other than as described in clauses (a) through (m) above and all (p) below not exceeding an aggregate amount equal to the book value of three percent (3%) of Total Assets, provided that not more than 50% of the Debt incurred or otherwise outstanding pursuant to this clause (n) may be secured by Permitted Liens;
(o) Debt which may otherwise be permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default11.6; and
(fp) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000arising from Ordinary Course Capital Leases.
Appears in 1 contract
Debt. The Neither the Parent MLP nor the Borrower and nor any of the Operating other Restricted Subsidiaries will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume or permit suffer to exist any Debt, except:
(ac) Debt to the Lenders pursuant to 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;
(bd) intercompany Debt between or among of the Borrower and the Restricted Subsidiaries existing on the Closing Date that is reflected in the Financial Statements or on Schedule 9.02(b), and any refinancings, renewals or extensions (but not increases) thereof;
(e) accounts payable (for the deferred purchase price of its Operating Subsidiaries Property or Wholly-Owned Subsidiaries 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;
(includingf) Debt under Capital Leases (as required to be reported on the financial statements of the Borrower pursuant to GAAP) not to exceed $10,000,000;
(g) Debt associated with bonds or surety obligations required by Governmental Requirements in connection with the operation of the Oil and Gas Properties;
(h) intercompany Debt among the Borrower and any Restricted Subsidiary or between Restricted Subsidiaries to the extent permitted by Section 9.05(h); provided that such Debt is not held, without limitationassigned, transferred, negotiated or pledged to any Person other than the Borrower or one of the Guarantors, and, provided further, that any such Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of either the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, or a Guarantor shall be subordinated to the Obligations pursuant to a subordination agreement Indebtedness on terms set forth in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time Guarantee Agreement;
(i) endorsements of negotiable instruments for collection in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinatedbusiness;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (iij) purchase money Debt (including Capital Lease Obligations) secured in respect of property acquired by purchase money Liens, which Debt the Borrower and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured DebtRestricted Subsidiaries; provided, however, provided that the aggregate principal or face amount of the all Debt referred to in secured under this Section 9.1(d9.02(h) shall not exceed $15,000,000 in aggregate amount 10,000,000 at any time outstandingtime;
(ek) liabilities Permitted Subordinate Debt; provided, that contemporaneously with any issuance or incurrence thereof (i) the Borrowing Base shall be automatically reduced pursuant to and in accordance with Section 2.08(f) and (ii) the Borrower shall make any mandatory prepayment required by Section 2.07(b)(iii), if applicable;
(l) Permitted Senior Debt; provided, that immediately prior to the issuance or incurrence thereof the Mortgaged Properties shall have a PV9% value of not less than the required Minimum Collateral Value; provided further, contemporaneously with any issuance or incurrence thereof (i) the Borrowing Base shall be automatically reduced pursuant to and in accordance with Section 2.08(f) and (ii) the Borrower shall make any mandatory prepayment required by Section 2.07(b)(iii), if applicable;
(m) guarantees of Debt of the Parent MLP, the Borrower or any other Restricted Subsidiary otherwise permitted under this Section 9.02;
(n) other Debt not to exceed $20,000,000 in respect of unfunded vested benefits under the aggregate at any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Defaultone time outstanding; and
(fo) Debt of the Borrower and its Subsidiaries to the Trustee Preferred Stock and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Series B Preferred Stock.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower toCreate, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or permit suffer to exist any Debt, except:
(a) Debt to of the Lenders pursuant to Borrower under this Agreement or the Loan DocumentsNote;
(b) intercompany Debt between described in Schedule 7.1, including renewals, extensions or among refinancings thereof, provided that the principal amount thereof does not increase;
(c) Debt of the Borrower subordinated on terms satisfactory to the Bank to the Borrower's obligations under this Agreement and the Note;
(d) Debt of the Borrower to any such Subsidiary or of any Subsidiary to the Borrower or another such Subsidiary;
(e) Debt of the Borrower or any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in connection with the issuance of letters of credit required to be obtained in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to and its Subsidiaries;
(f) Debt incurred in connection with lease arrangements permitted under Section 7.3 herein;
(g) Debt of any Person which becomes a Subsidiary of the Borrower in connection with loans of proceeds of the Loans made any Acceptable Acquisition permitted by Section 7.12 herein or Debt which is acquired and assumed by the Borrower to such Subsidiaries, the proceeds or any of which loans are used for the purposes its Subsidiaries in connection with an Acceptable Acquisition permitted by Section 2.10), subject 7.12; provided that such Debt was in existence and outstanding prior to and on the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to date that such Person became a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidencedsuch Acceptable Acquisition was consummated, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if and such Debt constitutes was not created in contemplation of such Person becoming a part of the Obligations;
(i) existing Debt in the principal amounts Subsidiary or such Acceptable Acquisition being consummated, and as otherwise described on Schedule 7.10 hereto and any renewals, extensions or refinancings of such Debt which do not increase thereof, provided that the outstanding principal amount of such Debtthereof does not increase; and provided, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; providedfurther, however, that the aggregate principal amount of the Debt referred to in permitted by this Section 9.1(dsubsection (e) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default1,000,000; and
(fh) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that or any such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Subsidiary secured by purchase money Liens permitted by Section 7.2.
Appears in 1 contract
Samples: Credit Agreement (Universal American Financial Corp)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower toCreate, incur, assume or suffer to exist, or permit ---- any of its Subsidiaries to create, incur, assume or permit suffer to exist exist, any Debt, except:
(ai) in the case of the Borrower,
(A) Debt owed to the Lenders pursuant to the Loan Documents;
(b) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries a Material Domestic Subsidiary of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such SubsidiariesBorrower, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b(x) shall be unsecured, constitute Pledged Debt and (y) shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement promissory notes in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time shall be subordinated in right of payment to time the payment in full of the ordinary course Obligations and such promissory notes shall be pledged as security for the Obligations of business the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Pledge and Security Agreement;
(B) Capitalized Leases not to exceed in the aggregate $100,000 in aggregate principal amount 25,000,000 at any time owing by outstanding; and
(C) Debt of the Borrower issued in a Capital Markets Transaction provided such Debt is unsecured and such Debt does not have a stated maturity date or required principal payments earlier than the Termination Date and the Borrower makes the prepayment required pursuant to Section 2.06(b);
(ii) in the case of any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower (other than LSFCC or LSFLLC),
(A) Debt owed to the Borrower or to a Material Domestic Subsidiary of the Borrower (other than Debt owed by a Restricted Subsidiary), which Debt (x) shall not constitute Pledged Debt and (y) shall, except in the case of redeemable preferred stock, be required evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, shall be so evidencedsubordinated in right of payment in full of the Obligations, and such promissory notes shall be pledged or subordinatedas security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Pledge and Security Agreement;
(cB) unsecured Debt under the Interest Rate Protection Agreements required owed to be maintained a Pledged Foreign Subsidiary by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a DefaultPledged Foreign Subsidiary; and
(fC) Debt owed to an Unpledged Foreign Subsidiary by a Pledged Foreign Subsidiary or an Unpledged Foreign Subsidiary;
(iii) in the case of the Borrower and its Subsidiaries (other than LSFCC or LSFLLC),
(A) Debt of the Borrower and its Subsidiaries outstanding on the Closing Date and listed on Schedule 4.01(w) hereto and any refinancing of the industrial revenue bond obligations listed on Schedule 4.01(w) hereto provided there is no increase in the aggregate principal amount of such obligations;
(B) Debt under the Loan Documents;
(C) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $50,000,000 at any time outstanding;
(D) Debt of the Borrower and FinServ in respect of Ordinary Course Hedge Agreements and consistent with prudent business practice, provided that the aggregate Agreement Value of all such Ordinary Course Hedge Agreements under which the Borrower or FinServ would be required to make a payment on termination thereof do not exceed in the aggregate $75,000,000 (net of the value of cash, Cash Equivalents or other assets deposited in a margin account in connection with any such Ordinary Course Hedge Agreements and the face amount of any letter of credit issued with respect to any such Ordinary Course Hedge Agreements) at any time outstanding;
(E) Debt of the Borrower and its Subsidiaries (other than LSFCC or LSFLLC) to FinServ and Debt of FinServ to the Trustee Borrower and its other Subsidiaries (other than LSFCC or LSFLLC) in the ordinary course of business;
(F) Debt of Foreign Subsidiaries in the form of Permitted Foreign Receivables Purchase Transactions, provided the Borrower and its Subsidiaries make the prepayment required pursuant to Section 2.06(b);
(G) Debt of the Borrower and its Subsidiaries in the form of Real Estate Financing Transactions, provided the principal amount of all Debt permitted under this Section 5.02(b)(iii)(G) and Section 5.02(b)(iii)(H) (including all such Debt existing on the Closing Date and listed on Schedule 4.01(w) hereto) does not exceed in the aggregate $175,000,000 at any time outstanding and the Noteholders Borrower and its Subsidiaries make the prepayment required pursuant to Section 2.06(b);
(H) Debt of the Borrower and its Subsidiaries in the form of Equipment Financing Transactions, provided the principal amount of all Debt permitted under this Section 5.02(b)(iii)(H) and Section 5.02(b)(iii)(G) (including all such Debt existing on the Closing Date and evidenced listed on Schedule 4.01(w) hereto) does not exceed in the aggregate $175,000,000 at any time outstanding and governed bythe Borrower and its Subsidiaries make the prepayment required pursuant to Section 2.06(b);
(I) Ordinary Course Hedging Agreements between the Borrower or FinServ and FinServ and the other Subsidiaries of the Borrower (other than LSFCC or LSFLLC) in the ordinary course of business;
(J) Debt of the Borrower and its Subsidiaries in the form of Permitted Domestic Receivables Purchase Transactions in form and substance reasonably satisfactory to the Administrative Agent, provided the Borrower and its Subsidiaries make the prepayment required pursuant to Section 2.06(b);
(K) Debt of the Borrower to any of its Subsidiaries and Debt of any of its Subsidiaries to the Borrower or any of its other Subsidiaries outstanding on the Closing Date and listed on Schedule 4.01(w) hereto;
(L) Debt between the Borrower and any of its Subsidiaries or between any of its Subsidiaries arising from purchases of inventory or raw materials in the ordinary course of business;
(M) Debt arising from the honoring of a check, draft or similar instrument against insufficient funds;
(N) Debt of the Borrower to any of its Subsidiaries and Debt of any of its Subsidiaries to the Borrower or any of its other Subsidiaries; PROVIDED, HOWEVER, that the sum, without duplication, of (i) the Subordinated Guaranteesaggregate principal amount of all such Debt incurred after the date hereof PLUS (ii) the aggregate Investments permitted by Section 5.02(f)(x) PLUS (iii) the aggregate dispositions permitted by Section 5.02(e)(x) shall not exceed $50,000,000 in the aggregate during Fiscal Year 2001, $100,000,000 in the aggregate during Fiscal Years 2001 and 2002, taken as a single period, or $150,000,000 in the aggregate during Fiscal Years 2001, 2002 and 2003, taken as a single period;
(O) Debt of the Borrower to any of its Subsidiaries and Debt of any of its Subsidiaries to the Borrower or any of its other Subsidiaries incurred in connection with a disposition permitted under Section 5.02(e)(xii);
(P) Debt of the Borrower or any Subsidiary of the Borrower to the Borrower or any of its other Subsidiaries incurred in connection with a Permitted Foreign Receivables Purchase Transaction permitted under Section 5.02(b)(iii)(F) in an amount not to exceed the proceeds thereof; provided, however, that such debt may and
(Q) other Debt (without duplication) of the Borrower and its Subsidiaries not be initially incurred (and exceeding $150,000,000 in the Holdings Senior Notes may not be issued) after August 1, 2000aggregate at any time.
Appears in 1 contract
Samples: Credit Agreement (Levi Strauss & Co)
Debt. The Borrower and the Operating Subsidiaries will Parent shall not, and will not nor shall it permit any Restricted Subsidiary of the Borrower to, directly or indirectly, create, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to the Lenders pursuant to of any Loan Party under the Loan Documents;
(b) (i) Debt outstanding on the Closing Date and listed on Schedule 10.2.3(b) and any Permitted Refinancing thereof and (ii) intercompany Debt between or among outstanding on the Borrower Closing Date and listed on Schedule 10.2.3(b) and any Permitted Refinancing thereof; provided, that (x) any intercompany Debt in excess of its Operating $5,000,000 shall be evidenced by an Intercompany Note, and (y) any Intercompany Debt of any Loan Party owed to any Person that is not a Loan Party shall be unsecured and subordinated to the Obligations pursuant to the subordination provisions reasonably acceptable to Agent;
(c) Guarantees by Parent and any Restricted Subsidiary in respect of Debt of Parent or any Restricted Subsidiary otherwise permitted hereunder; provided, that (i) no Guarantee by any Restricted Subsidiary of any Term Debt, any UST Tranche A Facility Indebtedness, any UST Tranche B Facility Indebtedness, any Permitted Junior Debt, any Term Refinancing Debt, any UST Tranche A Refinancing Debt, any UST Tranche B Refinancing Debt or any Permitted Refinancing of any of the foregoing shall be permitted unless such guaranteeing party shall have also provided a Guarantee of the Obligations on the terms set forth herein (provided, further, that, DOCPROPERTY DOCXDOCID DMS=InterwovenIManage Format=<<NUM>>v<<VER>> PRESERVELOCATION \* MERGEFORMAT 11055505v9 this clause (i) shall not apply in the case of a Guarantee by any Foreign Subsidiary of any Debt of another Foreign Subsidiary), and (ii) if the Debt being Guaranteed is, or is required by this Agreement to be, Subordinated Debt, such Guarantee shall be subordinated to the Guarantee of the Obligations on terms (taken as a whole) at least as favorable to Lenders as those contained in the subordination of such Debt;
(d) Debt (other than Debt permitted under Section 10.2.3(b)) of Parent or any Restricted Subsidiary owing to any Loan Party or any other Restricted Subsidiary (or consisting of a Guaranty on behalf of Parent or any Restricted Subsidiary) to the extent constituting an Investment permitted by Section 10.2.2; provided, that (x) all such Debt of any Loan Party shall be evidenced by any Intercompany Note, and (y) any intercompany Debt owed to any Person that is not a Loan Party shall be unsecured and subordinated to the Obligations pursuant to the subordination provisions reasonably acceptable to Agent;
(e) Attributable Debt and other Debt of Parent or any Restricted Subsidiary (including Capitalized Leases) financing an acquisition, construction, repair, replacement, lease or improvement of a fixed or capital asset incurred prior to or within 270 days after the acquisition, lease or improvement of the applicable asset in an aggregate amount (together with any Permitted Refinancings thereof) not to exceed $25,000,000 at any time outstanding;
(f) Debt in respect of Hedging Agreements designed to hedge against Parent’s or any Restricted Subsidiary’s exposure to interest rates, foreign exchange rates or commodities (including fuel) pricing risks incurred not for speculative purposes;
(g) Debt of Parent or any Restricted Subsidiary (i) assumed in connection with any Permitted Acquisition or other Investment permitted hereunder, provided, that such Debt is not incurred in contemplation of such Investment, and any Permitted Refinancing thereof or (ii) incurred to finance a Permitted Acquisition or other Investment permitted hereunder and any Permitted Refinancing thereof; provided, that (w) in the case of clauses (i) and (ii), such Debt and all Debt resulting from a Permitted Refinancing thereof is unsecured (except for (A) Liens permitted by Section 10.2.1(s) and (B) Liens permitted by Section 10.2.1(ff)), (x) in the case of clauses (i) and (ii), both immediately prior and after giving effect thereto, (1) no Event of Default shall exist or result therefrom, and (2) immediately after giving effect to the incurrence of such Debt, the Total Leverage Ratio calculated on a Pro Forma Basis shall not be greater than the Total Leverage Ratio immediately prior to the consummation of the transaction, and (y) in the case of any such incurred Debt under clause (ii), such Debt matures after, and (except for any payments in respect of a Change of Control, asset sales, AHYDO catch-ups, and similar such payments) does not require any scheduled amortization or other scheduled payments of principal prior to, the then Latest Maturity Date;
(h) Debt representing deferred compensation to employees of Parent or any Restricted Subsidiary incurred in the ordinary course of business and other obligations and liabilities arising under employee benefit plans in the ordinary course of business;
(i) Debt consisting of unsecured promissory notes issued by Parent or any Restricted Subsidiary to current or former officers, managers, consultants, directors and DOCPROPERTY DOCXDOCID DMS=InterwovenIManage Format=<<NUM>>v<<VER>> PRESERVELOCATION \* MERGEFORMAT 11055505v9 employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Parent permitted by Section 10.2.6;
(j) Debt incurred by Parent or any Restricted Subsidiary in a Permitted Acquisition, any other Investment expressly permitted hereunder or any Disposition expressly permitted hereunder, in each case, constituting indemnification obligations or obligations in respect of purchase price (including earnouts and holdbacks) or other similar adjustments;
(k) Debt in respect of treasury, depository, credit card, debit card and cash management services or automated clearinghouse transfer of funds, overdraft or any similar services incurred in the ordinary course of business or any similar cash management services relating or secured pursuant to this Agreement or the Term Debt Documents (including Bank Product Debt) and any xxxxxx related to the Term Debt Documents or this Agreement;
(l) Debt consisting of the financing of insurance premiums or take-or-pay obligations contained in supply arrangements that do not constitute Guarantees, in each case, in the ordinary course of business;
(m) Debt incurred by Parent or any Restricted Subsidiary in respect of letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued or created in the ordinary course of business and not in connection with the borrowing of money, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Debt incurred in the ordinary course of business with respect to reimbursement-type obligations regarding workers compensation claims;
(n) obligations in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by the Term Debt Documents, UST Tranche A Facility Documentation, UST Tranche B Facility Documentation or any of Restricted Subsidiaries or Whollyobligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent with past practice and not in connection with the borrowing of money or Hedging Agreements;
(o) (x) (i) Term Debt of any Loan Party (including any Incremental Term Loans (as defined in the Term Debt Agreement)), (ii) Term Refinancing Debt of any Loan Party and (iii) any Permitted Refinancing of either of the foregoing, in each case to the extent permitted under, and subject to, the Term Debt Intercreditor Agreement or another intercreditor agreement in form and substance reasonably satisfactory to Agent and Administrative Borrower; provided that the aggregate principal amount outstanding (excluding interest paid in-Owned kind or otherwise capitalize to principal) at any time of all such Debt under clauses (i) - (iii) of this Section 10.2.3(o)(x) shall not exceed $615,000,000, (y)
(i) UST Tranche A Facility Indebtedness of any Loan Party, (ii) UST Tranche A Refinancing Debt of any Loan Party and (iii) any Permitted Refinancing of either of the foregoing, in each case to the extent permitted under, and subject to, the Term Debt Intercreditor Agreement or another intercreditor agreement in form and substance reasonably satisfactory to Agent and Administrative Borrower; provided that the aggregate principal amount outstanding (excluding interest paid in-kind or otherwise capitalize to principal) at any time of all such Debt under clauses (i) - (iii) of this Section 10.2.3(o)(y) shall not exceed $400,000,000 (and DOCPROPERTY DOCXDOCID DMS=InterwovenIManage Format=<<NUM>>v<<VER>> PRESERVELOCATION \* MERGEFORMAT 11055505v9 such Debt, together with all Debt under clauses (i) - (iii) of this Section 10.2.3(o)(z) shall not exceed $700,000,000) and (z) (i) UST Tranche B Facility Indebtedness of any Loan Party, (ii) UST Tranche A Refinancing Debt of any Loan Party and (iii) any Permitted Refinancing of either of the foregoing, in each case to the extent permitted under, and subject to, the Term Debt Intercreditor Agreement or another intercreditor agreement in form and substance reasonably satisfactory to Agent and Administrative Borrower; provided that the aggregate principal amount outstanding (excluding interest paid in-kind or otherwise capitalize to principal) at any time of all such Debt under clauses (i) - (iii) of this Section 10.2.3(o)(z) shall not exceed $400,000,000 (and such Debt, together with all Debt under clauses (i) - (iii) of this Section 10.2.3(o)(y) shall not exceed $700,000,000);
(p) Reserved;
(q) Reserved;
(r) Permitted Junior Debt of a Loan Party; provided, that (x) no Event of Default shall have occurred and be continuing at the time of the incurrence of such Debt or would result therefrom and (y) immediately after giving effect to the incurrence of such Permitted Junior Debt, the Total Leverage Ratio calculated on a Pro Forma Basis shall not be greater than 5.00 to 1.00 (as of the last day of the most-recently ended Fiscal Quarter for which financials statements have been delivered);
(s) Debt of Restricted Subsidiaries that are not Loan Parties in an aggregate principal amount at any time outstanding not to exceed $25,000,000;
(t) all premiums (if any), interest (including post-petition interest and interest paid in kind), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (0) above and (u) through (ee) below;
(i) Debt in respect of the Specified Pension Fund Obligations and Guarantees thereof, to the extent existing on the Closing Date, by any Guarantor in an aggregate principal amount at any time outstanding not to exceed the amount outstanding as of the Closing Date (and as adjusted from time to time pursuant to any audits), plus any interest paid in kind thereon and any accrued but unpaid interest thereon and (ii) any Permitted Refinancing (excluding clause (b) thereof);
(v) Debt in respect of the Existing Series A Notes that is fully discharged;
(w) Debt in respect of the Existing Series B Notes in an aggregate principal amount not to exceed $17,000,000 (plus any increase in the principal amount thereof in respect of any interest paid in kind (rather than in cash) thereunder in accordance with the terms and conditions of the applicable indenture in effect as of the Closing Date, but minus any principal payments in respect thereof made in accordance with the terms and conditions of this Agreement) at any time outstanding;
(x) Debt in respect of taxes, assessments or governmental charges to the extent that payment thereof shall not at the time be required to be made hereunder; DOCPROPERTY DOCXDOCID DMS=InterwovenIManage Format=<<NUM>>v<<VER>> PRESERVELOCATION \* MERGEFORMAT 11055505v9
(y) Debt under any letter of credit (to the extent that such letter of credit is collateralized with cash, Cash Equivalents, deposit accounts or securities accounts maintaining cash, Cash Equivalents or investment property or the proceeds of the foregoing); provided, that the aggregate principal amount of Debt permitted by this clause (y) shall not exceed $25,000,000 at any time outstanding;
(z) Debt arising under any Receivables Facility in an amount not to exceed $20,000,000 in the aggregate at any one time outstanding; provided, that, for purposes of this clause (z), the obligations under any such Receivables Facility may be full-recourse to Parent or any Restricted Subsidiary; and provided, further, that Accounts sold or otherwise disposed of in connection with any full-recourse Receivables Facility described in the preceding proviso are limited to those Accounts permitted to be sold under Section 10.2.5(g);
(aa) Debt in respect of Sale and Leaseback Transactions in an amount not to exceed $25,000,000 at any time outstanding;
(bb) Debt in respect of Investments not prohibited by Section 10.2.2;
(cc) Debt and other obligations in respect of Disqualified Equity Interests in an amount not to exceed $25,000,000 outstanding at any time;
(dd) Debt incurred in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards (including so-called “procurement cards” or “P-cards”) or other similar cash management services, in each case, incurred in the Ordinary Course of Business;
(ee) other Debt of Parent or any Restricted Subsidiary, in an aggregate principal amount at any time outstanding not to exceed the greater of $30,000,000 and 2% of Consolidated Total Assets at the time of such incurrence; and
(ff) obligations, charges or liabilities incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries and not representing Indebtedness for borrowed money) outstanding as of the Borrower Amendment No. 6 Effective Date and identified to the Borrower Lenders in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject schedule delivered to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory Lenders on or prior to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.Amendment No. 6
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will notNot, and will not permit any Subsidiary of the Borrower other Loan Party to, create, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to Obligations under this Agreement and the Lenders pursuant to the other Loan Documents;
(b) Debt of any Guarantor owing to the Company or to any other Guarantor; provided that to the extent such Debt shall be evidenced by any note or instrument, upon the written request of the Administrative Agent, such instrument shall be a demand note in form and substance reasonably satisfactory to the Administrative Agent and delivered to the Administrative Agent pursuant to the Collateral Documents, and the obligations under such demand note shall be subordinated to the Obligations of the Company hereunder in a manner reasonably satisfactory to the Administrative Agent;
(c) Subordinated Debt, provided that (A) immediately before and after (on a Pro Forma Basis acceptable to the Administrative Agent and supported by such certificates required by the Administrative Agent) the incurrence of any such Subordinated Debt, no Unmatured Event of Default or Event of Default shall exist and the Company shall be in compliance on a Pro Forma Basis with all financial and other covenants contained herein as of the date of incurrence of such Subordinated Debt and (B) all agreements, documents and instruments relating to such Subordinated Debt shall have been delivered to and approved by the Administrative Agent and the Required Lenders prior to the incurrence of such Subordinated Debt;
(d) Hedging Obligations;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased (and as such amount is reduced from time to time) and no modifications of the terms thereof which are less favorable to the Company or more restrictive on the Company in any material manner shall be permitted;
(f) Contingent 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 11.4;
(g) Earnouts with respect to Permitted Acquisitions made by the Company;
(h) trade accounts payable and accrued expenses arising in the ordinary course which are current or past due only in an amount which is not material in the aggregate for the Company and its Subsidiaries on a consolidated basis, or which are being contested in good faith by appropriate proceedings and for which adequate reserves are maintained on the books of the Company;
(i) Debt which is non-recourse to the Company or its Subsidiaries, provided that the aggregate amount of such non-recourse Debt does not exceed $20,000,000 and such non-recourse terms and the other terms of such financing are reasonably acceptable to the Administrative Agent;
(j) Debt incurred to finance insurance premiums in the ordinary course of business consistent with past practices of the Company;
(k) Debt of Subsidiaries and Joint Ventures which are not Guarantors owing to the Company or a Guarantor not exceeding at any time outstanding an aggregate amount equal to the book value of five percent (5%) of Total Assets; provided, that any such Debt shall reduce, dollar for dollar, the available transactions permitted by Section 11.10(p);
(l) Debt represented by Facility Leases, Ordinary Course Equipment Leases and Facility Management Agreements;
(m) Debt other than as described in clauses (a) through (l) above and (n) through (s) below not exceeding an aggregate amount equal to the book value of five percent (5%) of Total Assets, provided that not more than 50% of the Debt incurred or otherwise outstanding pursuant to this clause (m) may be secured by Permitted Liens;
(n) intercompany Debt between arising pursuant to Investments permitted under Section 11.10;
(o) Debt arising from Ordinary Course Capital Leases;
(p) Debt for bank overdrafts or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries returned items incurred in the ordinary course of business that are promptly repaid;
(includingq) unsecured Debt owing to banks or other financial institutions under credit cards issued to officers and employees for, without limitationand constituting, Debt owed by the Operating Subsidiaries or Whollybusiness-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time related expenses in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of business; provided, that, such Debt is extinguished within ninety (90) days after the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinatedincurrence thereof;
(cr) unsecured Debt under the Interest Rate Protection Agreements required representing deferred compensation to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part employees of the Obligations;
(i) existing Debt any Loan Party incurred in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings ordinary course of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Defaultbusiness; and
(fs) Debt of obligations arising under indemnity agreements to title insurers to cause such title insurers to issue the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Administrative Agent title insurance policies required hereunder.
Appears in 1 contract
Debt. The No Borrower and the Operating Subsidiaries will notshall, and will not nor shall any Borrower permit any Subsidiary of its Subsidiaries or the Borrower LS&Co. Trust to, directly or indirectly create, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to in the Lenders pursuant to the Loan Documents;case of LS&Co,
(bi) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries to LSFCC or Wholly-Owned Subsidiaries of the Borrower any Subsidiary, which Debt, if owed to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiariesany Guarantor or Limited Guarantor, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b(A) shall be unsecured, constitute Pledged Debt and (B) shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement promissory notes in form and substance satisfactory to the Administrative Agent, providedshall be subordinated in right of payment to the payment in full of the Obligations and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Agent pursuant to the terms of the Pledge and Security Agreement;
(ii) Debt of LS&Co issued in a Capital Markets Transaction provided such Debt is unsecured and such Debt does not have a stated maturity date or required principal payments earlier than six months after the Stated Termination Date;
(iii) Guarantees of LS&Co under the LS&Co. Trust Agreement, howeverprovided that the investment activities of the LS&Co. Trust are in compliance with the Investment Policies; and
(iv) Guarantees of LS&Co in respect of the obligations of Guarantors or Limited Guarantors arising under or in connection with Selected Revolving Lender Cash Management Services;
(b) in the case of Subsidiaries specified in this Section 7.15(b),
(i) Debt owed to LS&Co by LSFCC or any Guarantor or Debt owed to any Guarantor or any Limited Guarantor by another Guarantor, which Debt (A) shall constitute Pledged Debt and (B) shall, except in the case of redeemable preferred stock, be evidenced by promissory notes in form and substance satisfactory to the Agent, shall be subordinated in right of payment in full of the Obligations, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Agent pursuant to the terms of the Pledge and Security Agreement;
(ii) Debt owed to any Limited Guarantor by any Guarantor or another Limited Guarantor;
(iii) Debt owed to any Foreign Subsidiary by any Guarantor, any Limited Guarantor or another Foreign Subsidiary;
(c) in the case of LS&Co and Subsidiaries specified in this Section 7.15(c),
(i) Debt of LS&Co and its Subsidiaries outstanding on the Original Closing Date and listed on Schedule 6.9;
(ii) Debt of LS&Co and its Subsidiaries under the Loan Documents;
(iii) Debt of LS&Co and its Subsidiaries (other than LSFCC) secured by Liens permitted by Section 7.13(c) not to exceed in the aggregate $50,000,000 at any time outstanding;
(iv) Debt of LS&Co, LSIFCS or any Material Domestic Subsidiary in respect of Ordinary Course Hedge Agreements and consistent with prudent business practice, provided that temporary advances made from time the aggregate Hedge Termination Value of all such Ordinary Course Hedge Agreements with third parties under which LS&Co, LSIFCS or any Material Domestic Subsidiary would be required to time make a payment on termination thereof does not exceed in the aggregate $75,000,000;
(v) so long as the Minimum Intercompany Transaction Requirement is met, Debt of LS&Co and its Subsidiaries (other than LSFCC) to LSIFCS in the ordinary course of business not and Debt of LSIFCS to exceed $100,000 LS&Co and any of its other Subsidiaries (other than LSFCC) in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary the ordinary course of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinatedbusiness;
(cvi) unsecured Debt of LS&Co under an IP Facility, provided an Intercreditor Agreement in form and substance satisfactory to the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if Lenders is executed in connection with such Debt constitutes a part of the ObligationsIP Facility;
(ivii) existing Debt of LS&Co and its Subsidiaries (other than LSFCC) in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewalsform of Real Estate Financing Transactions, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that provided the aggregate principal amount of the all Debt referred to in permitted under this Section 9.1(d7.15(c)(vii) and Section 7.15(c)(viii) (including all such Debt existing on the Original Closing Date and listed on Schedule 6.9) does not exceed in the aggregate $175,000,000 at any time outstanding;
(viii) Debt of LS&Co and its Subsidiaries (other than LSFCC) in the form of Equipment Financing Transactions, provided the aggregate principal amount of all Debt permitted under this Section 7.15(c)(viii) and Section 7.15(c)(vii) (including all such Debt existing on the Original Closing Date and listed on Schedule 6.9) does not exceed in the aggregate $175,000,000 at any time outstanding;
(ix) Ordinary Course Hedge Agreements between LS&Co and its Subsidiaries (other than LSFCC) and between LSIFCS and any other Subsidiaries of LS&Co (other than LSFCC) in the ordinary course of business;
(x) customary unsecured indemnification obligations and other unsecured Guarantees of LS&Co incurred in connection with any Permitted Foreign Receivables Transaction or any Foreign Inventory Transaction;
(xi) Debt of LS&Co to any of its Subsidiaries (other than LSFCC) or of any of its Subsidiaries (other than LSFCC) to any of its Subsidiaries (other than LSFCC) in connection with the purchases of inventory or raw materials in the ordinary course of business in an amount not to exceed the purchase price thereof and any related servicing fees;
(xii) Debt of LS&Co and its Subsidiaries arising from the honoring of a check, draft, wire transfer or similar instrument against insufficient funds; provided that such Debt is unsecured other than by a Lien permitted pursuant to Section 7.13(l) or is supported by a Letter of Credit;
(xiii) so long as the Minimum Intercompany Transaction Requirement is met, Debt of LS&Co to any of its Subsidiaries and Debt of any of its Subsidiaries to LS&Co or to any of its other Subsidiaries (other than LSFCC);
(xiv) Debt of LS&Co to any of its Subsidiaries and Debt of any of its Subsidiaries to LS&Co or to any of its other Subsidiaries incurred in connection with a Disposition permitted under Sections 7.17(e) and 7.17(m);
(xv) Debt of any Foreign Subsidiary to any Person other than LS&Co or any of its Subsidiaries;
(xvi) in addition to the foregoing Sections 7.15(c)(i)-(xv) and without duplication, Debt (other than Debt under Ordinary Course Hedge Agreements) of LS&Co and its Subsidiaries (other than LSFCC), provided that the sum, without duplication, of the aggregate principal amount of all Debt outstanding at any time under this Section 7.15(c)(xvi) and Section 7.15(c)(xvii) shall not exceed $15,000,000 150,000,000 at any time;
(xvii) Debt (other than Debt under Ordinary Course Hedge Agreements) of LSFCC not exceeding $10,000,000 in aggregate principal amount at any time outstanding;
(exviii) liabilities Capital Leases of the Borrower LS&Co, LSFCC, any Guarantor or any Limited Guarantor not exceeding $75,000,000 in respect of unfunded vested benefits under aggregate principal amount at any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Defaulttime outstanding; and
(fxix) Debt obligations of the Borrower and its Subsidiaries LS&Co to the Trustee and the Noteholders under purchase Equity Interests from present or former employees, directors or other recipients (and evidenced their beneficiaries) of such Equity Interests under LS&Co’s incentive compensation plans and governed by) the Subordinated Guaranteesagreements as provided under such plans and agreements; provided, however, that such debt may for all purposes under this Section 7.15 all direct and indirect references to “Limited Guarantors” shall exclude foreign branches of Limited Guarantors; provided further, that (i) the requirements of this Section 7.15 shall not apply during any Minimum Excess Availability Period (so long as after giving effect to any proposed Debt, Availability would not be initially less than $25,000,000), and (ii) no Default or Event of Default shall be deemed to have occurred following any Minimum Excess Availability Period based solely on any Debt created, incurred (or assumed during any Minimum Excess Availability Period and the Holdings Senior Notes may any such Debt shall not be issued) after August 1, 2000taken into account when applying the dollar limitations set forth in this Section 7.15.
Appears in 1 contract
Samples: Credit Agreement (Levi Strauss & Co)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower its Subsidiaries to, directly or indirectly, create, incur, createassume, assume or permit to exist otherwise become or remain directly or indirectly liable with respect to, any Debt, except:
(a) Debt to the Lenders incurred pursuant to the Loan Documentsthis Agreement;
(b) intercompany any Material Subsidiary Guaranty;
(c) Debt between or among the Borrower and any in respect of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business Capital Lease Obligations;
(including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes d) Contingent Obligations permitted by Section 2.10), subject 7.5; (Credit Agreement) 51 58
(e) Borrower and its Subsidiaries may remain liable with respect to any Debt of Borrower and its Subsidiaries existing on the following requirements: any Closing Date (all of which Debt that consists of letters of credit and surety and performance bonds outstanding on the Closing Date and all other of such Debt that is in excess of $1,000,000 in outstanding principal amount is described in Schedule 7.1) and refinancing thereof; provided that such refinanced Debt shall be on terms no less favorable to Borrower (other than in respect to market interest rate changes) and its Subsidiaries than the Debt being replaced and after giving effect thereto would not result in a Default or Event of Default;
(f) Borrower and its Subsidiaries may become and remain liable with respect to intercompany Debt; provided that all of the intercompany Debt permitted pursuant of Borrower to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit any Subsidiary of the Administrative Agent and the Lenders and, if payable by the Borrower, Borrower shall be subordinated to the Obligations pursuant in accordance with the terms set forth in Exhibit H;
(g) Debt of any Person which becomes a Subsidiary of Borrower or is merged into Borrower or any Subsidiary of Borrower in an amount permitted under Section 7.4(c); and provided such Debt existed at the time such Person became a Subsidiary of Borrower or was so merged and was not created in contemplation of such event and before and immediately after giving effect to such event no Event of Default shall exist and Borrower shall be in compliance with Section 7.7); provided further that any Debt of a subordination agreement in form and substance satisfactory Person that is merged into Borrower, is only permitted to the Administrative Agentextent it is unsecured unless after giving effect to such merger Borrower is in compliance with Section 7.2;
(h) without duplication of subsections (c), provided(e) and (g) of this Section 7.1, however, that temporary advances made from time Borrower and its Subsidiaries may become and remain liable with respect to time purchase money Debt in the ordinary course of business not to exceed $100,000 in an aggregate principal amount outstanding at any time owing by any Operating Subsidiary not in excess of 15% of Consolidated Net Worth of Borrower and its Subsidiaries (as shown on the most recent financial statements delivered pursuant to Section 6.1(a) or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, b)); provided that Debt thereunder may be secured if such Debt constitutes a part is secured only by the property purchased with such Debt; provided further that the loan-to-value ratio of such Debt does not exceed 100% with respect to personal property and 80% with respect to real property, in each case, at the Obligationstime of incurrence of any such Debt;
(i) existing the Subsidiaries of Borrower may become and remain liable with respect to Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of if such Debt which do not increase is permitted by the outstanding principal amount last proviso of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding7.1;
(ej) liabilities of the Borrower and its Subsidiaries may become and remain liable in respect of unfunded vested benefits under any Plan if and to industrial revenue bonds issued on behalf of Borrower or its Subsidiaries;
(k) Debt in connection with the extent that the existence of such liabilities will not constitute, cause or result in a DefaultReceivables Program permitted by Section 7.13; and
(fl) Debt without duplication of any of the foregoing clauses, Borrower may create, incur, assume or suffer to exist Debt; provided that such Debt is not secured by any assets of Borrower or any of its Subsidiaries other than as permitted by Section 7.2; provided that, notwithstanding subsections (a) through (l) of this Section 7.1, the Subsidiaries of Borrower may not create, incur, assume or suffer to exist any Subsidiary Debt in an aggregate principal amount outstanding at any time exceeding 15% of Consolidated Net Worth of Borrower and its Subsidiaries (as shown on the most recent financial statements delivered (Credit Agreement) 52 59 pursuant to Section 6.1(a) or (b)); provided further that, transactions of the Trustee and type permitted by Section 7.13 shall not count against any of the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000quantitative baskets set forth in this Section 7.1.
Appears in 1 contract
Samples: Credit Agreement (Flowserve Corp)
Debt. The Borrower and the Operating Subsidiaries will notNot, and will not permit any Subsidiary of the Borrower to, create, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to Obligations under this Agreement and the Lenders pursuant to the Loan other Investment Documents;
(b) intercompany Debt between or among secured by Liens permitted by Section 7.2(d), and extensions, renewals and refinancings thereof; provided that the Borrower and aggregate amount of all such Debt at any time outstanding shall not exceed $2,000,000;
(c) Debt of its Operating Subsidiaries or the Companies to any Wholly-Owned Subsidiaries Domestic Subsidiary or Debt of any Wholly-Owned Domestic Subsidiary to the Companies or another Wholly-Owned Domestic Subsidiary of the Companies; provided that, if requested by Agent, such Debt shall be evidenced by a demand note in form and substance reasonably satisfactory to Agent and pledged and delivered to Agent pursuant to the Guarantee and Collateral Agreement 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 Agent;
(d) Hedging Obligations for bona fide hedging purposes (and not for speculation);
(e) Debt described on Schedule 7.1 as of the Closing Date, and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Debt incurred at any time following consummation of the Closing Date Transactions in the form of or otherwise pursuant to a revolving credit facility from a lender or lenders, in amounts and with documentation and terms reasonably acceptable to Agent, so long as such Debt is at all times subject to an intercreditor agreement acceptable to Agent;
(g) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 7.5;
(h) In amounts acceptable to the Agent, (i) (A) Permitted Seller Debt and (B) Debt of a Subsidiary of a Company acquired pursuant to a Permitted Acquisition (or Debt of a Target assumed at the time of a Permitted Acquisition of such Target) so long as, in each case, such Debt was not incurred in contemplation of such Permitted Acquisition;
(i) Contingent Obligations arising under guarantees by a Note Party of Debt or other obligations of any other Note Party (other than Parent), which Debt or other obligations are otherwise permitted hereunder; provided that if such obligation is subordinated to the Obligations, such guarantee shall be subordinated to the same extent;
(j) Debt consisting of unpaid insurance premiums (not in excess of one (1) year’s premiums) owing to insurance companies and insurance brokers incurred in connection with the financing of insurance premiums in the ordinary course of business;
(k) unsecured guarantees (i) made in the ordinary course of business with respect to appeal bonds; (ii) made in the ordinary course of business with respect to surety bonds, customs bonds, performance bonds, bid bonds, completion guarantees and similar obligations, in each case to the extent such bonds, guarantees or other obligations are permitted under clause (l) below, or (iii) arising as a result of customary indemnification obligations to purchasers that are not Affiliates of a Note Party in connection with any disposition permitted by Section 7.5 hereof;
(l) indebtedness incurred in the ordinary course of business under (includingi) appeal bonds and (ii) surety bonds, without limitationcustoms bonds, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower performance bonds, bid bonds, completion guarantees and similar obligations in an aggregate amount, with respect to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10this clause (ii), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount 750,000 at any time outstanding;
(em) liabilities unsecured Debt of Parent owing to former employees, officers, or directors (or any spouses, former spouses, or estates of any of the Borrower foregoing) of Parent, the Companies and their Subsidiaries to finance the repurchase by Parent of equity interests of Parent that have been issued to such Persons upon the death or separation from employment thereof, so long as (i) no Event of Default has occurred and is continuing at the time of issuance or would result from the incurrence of such Debt and (ii) the aggregate amount of all such Debt outstanding at any one time does not exceed $1,000,000;
(n) unsecured indebtedness representing deferred compensation or similar obligations to employees, officers and directors incurred in the ordinary course of business;
(o) [reserved];
(p) [reserved];
(q) Debt in connection with permitted intercompany advances, loans and capital contributions permitted by Section 7.11(q) below;
(r) Contingent payment obligations and contingent liabilities in respect of unfunded vested benefits under customary indemnification obligations and customary post-closing adjustments or “true-ups” of purchase price in connection with any Plan if and Permitted Acquisition;
(s) accrued unpaid management fees, in an aggregate amount not to exceed $750,000 per Fiscal Year, to the extent that the existence of such liabilities will not constitute, cause or result in a Defaultpermitted to be paid pursuant to Section 7.4(h); and
(ft) Debt of the Borrower and its Subsidiaries other unsecured Debt, in addition to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; providedDebt listed above, however, that such debt may in an aggregate outstanding amount not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000at any time exceeding $2,000,000.
Appears in 1 contract
Samples: Note Purchase Agreement (CNL Strategic Capital, LLC)
Debt. The Neither the Parent MLP nor the Borrower and nor any of the Operating other Restricted Subsidiaries will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to the Lenders pursuant to 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;
(b) intercompany Debt between or among of the Borrower and the Restricted Subsidiaries existing on the Closing Date that is reflected in the Financial Statements or on Schedule 9.02(b), and any refinancings, renewals or extensions (but not increases) thereof;
(c) accounts payable (for the deferred purchase price of its Operating Subsidiaries Property or Wholly-Owned Subsidiaries 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;
(includingd) Debt under Capital Leases (as required to be reported on the financial statements of the Borrower pursuant to GAAP) not to exceed $10,000,000;
(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 among the Borrower and any Restricted Subsidiary or between Restricted Subsidiaries to the extent permitted by Section 9.05(h); provided that such Debt is not held, without limitationassigned, transferred, negotiated or pledged to any Person other than the Borrower or one of the Guarantors, and, provided further, that any such Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of either the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, or a Guarantor shall be subordinated to the Obligations pursuant to a subordination agreement Indebtedness on terms set forth in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time Guarantee Agreement;
(g) endorsements of negotiable instruments for collection in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinatedbusiness;
(ch) unsecured purchase money Debt in respect of property acquired by the Borrower and the Restricted Subsidiaries; provided that the aggregate principal or face amount of all Debt secured under the Interest Rate Protection Agreements required to be maintained by this Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations9.02(h) shall not exceed $10,000,000 at any time;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Subordinate Debt; provided, howeverthat contemporaneously with any issuance or incurrence thereof (i) the Borrowing Base shall be automatically reduced pursuant to and in accordance with Section 2.08(f) and (ii) the Borrower shall make any mandatory prepayment required by Section 2.07(b)(iii), that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstandingif applicable;
(ej) liabilities Permitted Senior Debt; provided, that immediately prior to the issuance or incurrence thereof the Mortgaged Properties shall have a PV9% value of not less than the required Minimum Collateral Value; provided further, contemporaneously with any issuance or incurrence thereof (i) the Borrowing Base shall be automatically reduced pursuant to and in accordance with Section 2.08(f) and (ii) the Borrower shall make any mandatory prepayment required by Section 2.07(b)(iii), if applicable;
(k) guarantees of Debt of the Parent MLP, the Borrower or any other Restricted Subsidiary otherwise permitted under this Section 9.02;
(l) other Debt not to exceed $20,000,000 in respect of unfunded vested benefits under the aggregate at any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Defaultone time outstanding; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed bym) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Preferred Stock.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower toCreate, incur, create, assume or permit suffer to exist any Debt, exceptDebt other than:
(ai) Debt to the Lenders incurred pursuant to this Agreement and the other Loan Documents;
(bii) Debt existing on the date hereof as set forth in SCHEDULE 6.2 attached hereto; provided that the Debt is not increased above the amount then outstanding;
(iii) accrued expenses, current trade payables and other current liabilities arising in the ordinary course of business and not incurred through the borrowing of money;
(iv) unsecured intercompany Debt between or among (x) of any Subsidiary to the Borrower, (y) of any Subsidiary to a Guarantor, and (z) of the Borrower and to any of its Operating Subsidiaries or Wholly-Owned Subsidiaries Guarantor, provided that any such Debt under this clause (IV) is incurred in the ordinary course of business and, if requested by the Agent, is evidenced by one or more promissory notes pledged to the Agent pursuant to the Pledge Agreement, is payable on demand and, is fully subordinated in right of payment to the Credit Obligations and the Guaranty Obligations, as applicable; and provided further, that intercompany Debt for money borrowed by the Palestine Limited Partnership shall not exceed those obligations evidenced by the Palestine Limited Partnership Note and that all other intercompany Debt owed by Palestine Limited Partnership shall not exceed amounts currently payable pursuant to the Hospital Management Agreement dated in or about June, 1996, between Palestine-Principal, Inc., a Tennessee corporation, and the Palestine Limited Partnership, as such agreement may be amended, supplemented or renewed from time to time in compliance with SECTION 6.25 hereof.
(v) Contingent Obligations permitted by SECTION 6.3;
(vi) Debt of the Borrower under any Swap Agreement relating to the Debt incurred under this Agreement; provided that the notional amount of all such agreements at any time shall not exceed the aggregate amount of the Commitments at such time;
(vii) Debt assumed or incurred in connection with a Permitted Acquisition to the extent such Debt is approved by and, if required by the Required Lenders, subordinated on terms acceptable to the Required Lenders;
(viii) Debt with respect to financed insurance premiums not past due;
(ix) unsecured Subordinated Debt; and
(x) other Debt (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of liens described in clause (gE) of the definition of Permitted Liens contained and Capital Lease Obligations) in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the an aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and outstanding not to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of exceed $3,000,000 for the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Subsidiaries.
Appears in 1 contract
Debt. The No Borrower and the Operating Subsidiaries will notshall, and will not nor shall any Borrower permit any Subsidiary of its Subsidiaries or the Borrower LS&Co. Trust to, directly or indirectly create, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to in the Lenders pursuant to the Loan Documents;case of LS&Co,
(bi) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by to LSFCC or any Subsidiary (other than the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10Excluded Subsidiary), subject which Debt, if owed to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(bGuarantor or Limited Guarantor, (A) shall be unsecured, constitute Pledged Debt and (B) shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement promissory notes in form and substance satisfactory to the Administrative Agent, providedshall be subordinated in right of payment to the Full Payment of the Obligations and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Agent pursuant to the terms of the Pledge and Security Agreement;
(ii) Debt of LS&Co issued in a Capital Markets Transaction provided such Debt is unsecured and such Debt does not have a stated maturity date or required principal payments earlier than six months after the Stated Termination Date;
(iii) Guarantees of LS&Co under the LS&Co. Trust Agreement, howeverprovided that the investment activities of the LS&Co. Trust are in compliance with the Investment Policies; and
(iv) Guarantees of LS&Co in respect of the obligations of Guarantors or Limited Guarantors arising under or in connection with Selected Revolving Lender Cash Management Services;
(b) in the case of Subsidiaries (other than the Excluded Subsidiary) specified in this Section 7.15(b),
(i) Debt owed to LS&Co by LSFCC or any Guarantor or Debt owed to any Guarantor or any Limited Guarantor by another Guarantor, which Debt (A) shall constitute Pledged Debt and (B) shall, except in the case of Redeemable Preferred Interests, be evidenced by promissory notes in form and substance satisfactory to the Agent, shall be subordinated in right of Full Payment of the Obligations, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Agent pursuant to the terms of the Pledge and Security Agreement;
(ii) Debt owed to any Limited Guarantor by any Guarantor or another Limited Guarantor;
(iii) Debt owed to any Foreign Subsidiary by any Guarantor, any Limited Guarantor or another Foreign Subsidiary;
(c) in the case of LS&Co and Subsidiaries (other than the Excluded Subsidiary) specified in this Section 7.15(c),
(i) Debt of LS&Co and its Subsidiaries outstanding on the Original Closing Date and listed on Schedule 6.9;
(ii) Debt of LS&Co and its Subsidiaries under the Loan Documents;
(iii) Debt of LS&Co and its Subsidiaries (other than LSFCC and the Excluded Subsidiary) secured by Liens permitted by Section 7.13(c) not to exceed in the aggregate $50,000,000 at any time outstanding;
(iv) Debt of LS&Co, LSIFCS or any Material Domestic Subsidiary (other than the Excluded Subsidiary) in respect of Ordinary Course Hedge Agreements and consistent with prudent business practice, provided that temporary advances made from time the aggregate Hedge Termination Value of all such Ordinary Course Hedge Agreements with third parties under which LS&Co, LSIFCS or any Material Domestic Subsidiary (other than the Excluded Subsidiary) would be required to time make a payment on termination thereof does not exceed in the aggregate $75,000,000;
(v) so long as the Minimum Intercompany Transaction Requirement is met, Debt of LS&Co and its Subsidiaries (other than LSFCC and the Excluded Subsidiary) to LSIFCS in the ordinary course of business not and Debt of LSIFCS to exceed $100,000 LS&Co and any of its other Subsidiaries (other than LSFCC and the Excluded Subsidiary) in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary the ordinary course of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinatedbusiness;
(cvi) unsecured Debt of LS&Co under an IP Facility, provided an Intercreditor Agreement in form and substance satisfactory to the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if Lenders is executed in connection with such Debt constitutes a part of the ObligationsIP Facility;
(ivii) existing Debt of LS&Co and its Subsidiaries (other than LSFCC and the Excluded Subsidiary) in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewalsform of Real Estate Financing Transactions, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that provided the aggregate principal amount of the all Debt referred to in permitted under this Section 9.1(d7.15(c)(vii) and Section 7.15(c)(viii) (including all such Debt existing on the Original Closing Date and listed on Schedule 6.9) does not exceed in the aggregate $175,000,000 at any time outstanding;
(viii) Debt of LS&Co and its Subsidiaries (other than LSFCC and the Excluded Subsidiary) in the form of Equipment Financing Transactions, provided the aggregate principal amount of all Debt permitted under this Section 7.15(c)(viii) and Section 7.15(c)(vii) (including all such Debt existing on the Original Closing Date and listed on Schedule 6.9) does not exceed in the aggregate $175,000,000 at any time outstanding;
(ix) Ordinary Course Hedge Agreements between LS&Co and its Subsidiaries (other than LSFCC and the Excluded Subsidiary) and between LSIFCS and any other Subsidiaries of LS&Co (other than LSFCC and the Excluded Subsidiary) in the ordinary course of business;
(x) customary unsecured indemnification obligations and other unsecured Guarantees of LS&Co incurred in connection with any Permitted Foreign Receivables Transaction or any Foreign Inventory Transaction;
(xi) Debt of LS&Co to any of its Subsidiaries (other than LSFCC and the Excluded Subsidiary) or of any of its Subsidiaries (other than LSFCC and the Excluded Subsidiary) to any of its Subsidiaries (other than LSFCC and the Excluded Subsidiary) in connection with the purchases of Inventory or raw materials in the ordinary course of business in an amount not to exceed the purchase price thereof and any related servicing fees;
(xii) Debt of LS&Co and its Subsidiaries (other than the Excluded Subsidiary) arising from the honoring of a check, draft, wire transfer or similar instrument against insufficient funds; provided that such Debt is unsecured other than by a Lien permitted pursuant to Section 7.13(l) or is supported by a Letter of Credit;
(xiii) so long as the Minimum Intercompany Transaction Requirement is met, Debt of LS&Co to any of its Subsidiaries (other than the Excluded Subsidiary) and Debt of any of its Subsidiaries (other than the Excluded Subsidiary) to LS&Co or to any of its other Subsidiaries (other than LSFCC and the Excluded Subsidiary);
(xiv) Debt of LS&Co to any of its Subsidiaries (other than the Excluded Subsidiary) and Debt of any of its Subsidiaries (other than the Excluded Subsidiary) to LS&Co or to any of its other Subsidiaries (other than the Excluded Subsidiary) incurred in connection with a Disposition permitted under Sections 7.17(e) and 7.17(m);
(xv) Debt of any Foreign Subsidiary to any Person other than LS&Co or any of its Subsidiaries;
(xvi) in addition to the foregoing Sections 7.15(c)(i)-(xv) and without duplication, Debt (other than Debt under Ordinary Course Hedge Agreements) of LS&Co and its Subsidiaries (other than LSFCC and the Excluded Subsidiary), provided that the sum, without duplication, of the aggregate principal amount of all Debt outstanding at any time under this Section 7.15(c)(xvi) and Section 7.15(c)(xvii) shall not exceed $15,000,000 150,000,000 at any time;
(xvii) Debt (other than Debt under Ordinary Course Hedge Agreements) of LSFCC not exceeding $10,000,000 in aggregate principal amount at any time outstanding;
(exviii) liabilities Capital Leases of the Borrower LS&Co, LSFCC, any Guarantor or any Limited Guarantor not exceeding $75,000,000 in respect of unfunded vested benefits under aggregate principal amount at any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Defaulttime outstanding; and
(fxix) Debt obligations of the Borrower and its Subsidiaries LS&Co to the Trustee and the Noteholders under purchase Equity Interests from present or former employees, directors or other recipients (and evidenced their beneficiaries) of such Equity Interests under LS&Co’s incentive compensation plans and governed by) the Subordinated Guaranteesagreements as provided under such plans and agreements; provided, however, that such debt may for all purposes under this Section 7.15 all direct and indirect references to “Limited Guarantors” shall exclude foreign branches of Limited Guarantors; provided further, that (i) the requirements of this Section 7.15 shall not apply during any Minimum Excess Availability Period (A) occurring during the period beginning on the Amendment Date and ending on the Trademark Subfacility Payoff Date (so long as (I) after giving effect to any proposed Debt, Availability would not be initially incurred less than $100,000,000 with respect to intercompany transactions or $125,000,000 with respect to third party transactions and (II) immediately before and after giving effect to any proposed Debt, no Default or Event of Default has occurred and is continuing) or (B) occurring during the Holdings Senior Notes may period beginning on the date after the Trademark Subfacility Payoff Date (so long as (I) after giving effect to any proposed Debt, Availability would not be issuedless than $25,000,000 and (II) immediately before and after August 1giving effect to any proposed Debt, 2000no Default or Event of Default has occurred and is continuing), and (ii) no Default or Event of Default shall be deemed to have occurred following any Minimum Excess Availability Period based solely on any Debt created, incurred or assumed during any Minimum Excess Availability Period and any such Debt shall not be taken into account when applying the dollar limitations set forth in this Section 7.15.
Appears in 1 contract
Samples: Credit Agreement (Levi Strauss & Co)
Debt. The Borrower Each of the Loan Parties (other than Holdings) and the Operating Subsidiaries ---- Supremex Loan Parties (other than Holdings) will not, and will not permit any Subsidiary of the Borrower its Subsidiaries (other than Unrestricted Subsidiaries) to, incur, create, assume or permit to exist any Debt, except:
(a) Debt of the Borrower and its Subsidiaries to the Lenders pursuant to the Loan Documents, Debt of the Borrower and its Subsidiaries and Supremex and its Subsidiaries to the Supremex Lenders pursuant to the Supremex Loan Documents and Debt of the Borrower to the Equipment Lease Facility Lenders pursuant to the Equipment Lease Facility Guaranty;
(b) intercompany Existing Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, ------------- extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Third Restatement Date, ;
(iic) purchase Purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) ---------- of the definition of Permitted Liens contained in Section 1.1; ----------- 92
(d) Debt of the Borrower evidenced by the Borrower Subordinated Notes and Debt of Pavey, Wisco, Wisco II, Mail-Well West and Wisco III evidenced by the Subsidiary Subordinated Guaranties, provided that the -------- obligations of Pavey, Wisco, Wisco II, Mail-Well West and Wisco III with respect to such guaranties shall be subordinated to the payment of the Obligations and such Subsidiaries' obligations under the Subsidiary Guaranties to the same extent that the Borrower's obligations under the Borrower Subordinated Notes are subordinated to the payment of the Obligations;
(iiie) additional unsecured DebtIntercompany Debt between or among the Borrower and any of its Wholly-Owned Subsidiaries (other than an Unrestricted Subsidiary) incurred in the ordinary course of business consistent with prudent business practices; provided, however, that the aggregate principal amount any and all of the Debt referred permitted pursuant to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.-------- -------
Appears in 1 contract
Samples: Credit Agreement (Mail Well Inc)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower toCreate, incur, assume or suffer to exist, or permit any of its Restricted Subsidiaries to create, incur, assume or permit suffer to exist exist, any Debt, except:
(ai) in the case of the Borrower,
(A) Debt owed to a Wholly Owned Restricted Subsidiary of the Borrower,
(B) other unsecured Debt incurred in the ordinary course of business aggregating not more than $50,000,000 at any time outstanding other than Guaranties or other contingent obligations of the Borrower with respect to any Debt or other obligation of any Unrestricted Subsidiary; provided that (I) the Borrower shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lenders pursuant to Section 5.03 and as though such Debt had been incurred at the Loan Documents;beginning of the four-quarter period covered thereby, as evidenced by a certificate of the chief financial officer (or person performing similar functions) of the Borrower delivered to the Administrative Agent demonstrating such compliance and (II) such unsecured Debt ranks junior to or pari passu with the Facilities, and
(bC) intercompany other unsecured Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitationfor the avoidance of doubt, any long-term Debt owed by the Operating Subsidiaries incurred in connection with a note offering) other than Guaranties or Wholly-Owned Subsidiaries other contingent obligations of the Borrower with respect to any Debt or other obligation of any Unrestricted Subsidiary; provided that (I) the Borrower shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Borrower in connection with loans of proceeds Lenders pursuant to Section 5.03 and as though such Debt had been incurred at the beginning of the Loans made four-quarter period covered thereby, as evidenced by a certificate of the chief financial officer (or person performing similar functions) of the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory delivered to the Administrative Agent which will be pledged demonstrating such compliance, (II) such unsecured Debt ranks junior to or pari passu with the Administrative Agent Facilities, (III) such unsecured Debt matures, and does not begin to amortize until, more than six months after the latest Termination Date for all Facilities and (IV) the benefit covenants and other material terms of such unsecured Debt are no more restrictive than those set forth in the Administrative Agent and Loan Documents;
(ii) in the Lenders and, if payable by case of any Restricted Subsidiary of the Borrower, shall be subordinated (A) Debt owed to the Obligations pursuant Borrower or to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Wholly Owned Restricted Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
and (cB) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as form of a Guaranty of Debt otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default5.02(b); and
(fiii) in the case of the Borrower and its Restricted Subsidiaries,
(A) Debt under the Loan Documents,
(B) the Surviving Debt set forth on Schedule 4.01(s) hereto,
(C) non-recourse Debt of the Borrower and its Restricted Subsidiaries incurred solely to finance capital expenditures for the Trustee and the Noteholders under development of Greenfield Projects, (and evidenced and governed byD) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.non-recourse Debt secured by Liens permitted by Section 5.02(a)(iv),
Appears in 1 contract
Debt. The Borrower and Other than the Operating Subsidiaries will notDebt, the Loan Parties obligations under the Subordinate Notes, and will a Permitted Guaranty, Borrowers shall not and shall not permit any Subsidiary of the Borrower toother Loan Party to create, incur, createguaranty or assume any debt (including without limitation Guaranteed Indebtedness) other than (i) Permitted Trade Payables or (ii) FF&E Financings, assume in an aggregate amount not to exceed the Maximum Permitted Trade Payables/FF&E Financings. Borrowers shall not and shall not allow any Loan Party to permit any trade payables (including but not limited to Permitted Trade Payables) to be outstanding for more than sixty (60) days. BHOC, BHAC and Bristol shall not modify the terms of the Acquisition Facility in any way which limits the ability or permit right of any Loan Party to exist any (w) amend, restate or satisfy the terms and conditions of this Agreement or the other Loan Documents, (x) refinance, prepay or repay the Debt, except:
(ay) Debt to the Lenders pursuant to the acquire, loan or dispose of any property or other asset, or any interest therein, or acquire or enter into, or provide any services under any Property Management Agreement or other management agreement or (z) otherwise conduct such Loan Documents;
(b) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred Party's business, except in the ordinary course case where the consequences, direct or indirect, of business (includingany violation of this covenant could not reasonably be expected to, either individually or in the aggregate, cause a Material Adverse Change. Notwithstanding the foregoing, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit consent of the Administrative Agent and the Requisite Lenders, which consent may be withheld in their sole discretion, no Permitted Pledge or Permitted Guaranty may be amended, restated, supplemented or otherwise modified except that Administrative Agent and the Requisite Lenders and, if payable by the Borrower, shall be subordinated will not unreasonably withhold their consent to the Obligations pursuant modification of a Permitted Pledge or a Permitted Guaranty if the purpose of such modification is to a subordination agreement in form and substance satisfactory cure any ambiguity or to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at correct any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder provisions thereof which may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debtdefective; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) such modification shall not exceed $15,000,000 adversely affect in aggregate amount at any time outstanding;
(e) liabilities material respect the interest of the Borrower in respect of unfunded vested benefits under any Plan if Lender. Borrowers shall and shall cause all other Loan Parties to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower make all payments due pursuant to any FF&E Financings when same are due and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000payable.
Appears in 1 contract
Samples: Loan Agreement (Bristol Hotel Co)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of Neither the Borrower to, incur, create, assume nor any of its Subsidiaries shall incur or permit to exist maintain any Debt, exceptother than:
(a) Debt to the Lenders pursuant to the Loan DocumentsObligations;
(b) intercompany Debt between or among the Borrower trade payables and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries contractual obligations to suppliers and customers incurred in the ordinary course of business business;
(includingc) Debt consisting of Senior Subordinated Notes, without limitation, provided that the aggregate principal amount thereof shall not at any time exceed $110,000,000;
(d) Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries consisting of the Borrower to the Borrower in connection with intercompany loans of proceeds of the Loans and advances ("Intercompany Loans") made by the Borrower to such Subsidiaries(I) LDM Canada, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject provided that (i) LDM Canada shall have executed and delivered to the following requirements: Borrower an Intercompany Note to evidence any and all such Intercompany Loan, any security interests granted to the Borrower on the assets of LDM Canada to secure the Debt permitted payments under its Intercompany Note shall be assigned to the Agent pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory documentation in form and substance acceptable to the Administrative Agent which will Agent, and such Intercompany Note shall be pledged to the Administrative Agent pursuant to the Pledge Agreement as additional collateral security for the benefit Obligations, (ii) the Borrower shall record all such Intercompany Loans on its books and records in a manner satisfactory to Agent, (iii) at the time any such Intercompany Loans is made by the Borrower and after giving effect thereto, each of the Administrative Agent Borrower and the Lenders and, if payable by the Borrower, LDM Canada shall be subordinated Solvent, (iv) the aggregate outstanding principal amount of Intercompany Loans under this clause (I) shall not at any one time exceed $17,000,000, consisting of the Closing Date Intercompany Note and additional loans not to exceed $1,000,000, plus an amount equal to the Obligations pursuant to a subordination agreement in form and substance satisfactory sum of (A) an amount equal to the Administrative Agentlesser of (x) $5,000,000 and (y) LDM Canada's Borrowing Base (as defined in the Loan and Security Agreement), plus (B) $4,000,000, provided, however, that temporary advances made from time the Intercompany Loans pursuant to time clauses (A) and (B) above shall not exceed in any fiscal quarter the amount of LDM Canada's EBITDA for the immediately preceding fiscal quarter and (II) LDM Germany, provided that (i) LDM Germany shall have executed and delivered to the Borrower an Intercompany Note to evidence any such Intercompany Loan, and such Intercompany Note shall conform to the requirements of a loan to an Unleveraged Wholly Owned Restricted Subsidiary (as defined in the ordinary course of business not Indenture) pursuant to exceed $100,000 the terms and conditions contained in aggregate principal amount the Indenture, (ii) the Borrower shall record all such Intercompany Loans on its books and records in a manner satisfactory to Agent, (iii) at the time any time owing such Intercompany Loan is made by any Operating Subsidiary or Wholly-Owned Subsidiary the Borrower and after giving effect thereto, each of the Borrower to and LDM Germany shall be Solvent and (iv) the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the aggregate outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted Intercompany Loans under and meet all of the requirements of this clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(dII) shall not at any one time exceed $15,000,000 in aggregate amount at any time outstanding9,160,000;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and guaranties permitted pursuant to the extent that the existence of such liabilities will not constitute, cause or result in a Default; andSection 9.12;
(f) Debt of evidenced by the Borrower Loan and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated GuaranteesSecurity Agreement; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.and
Appears in 1 contract
Samples: Term Loan and Security Agreement (LDM Technologies Inc)
Debt. The Borrower and the Operating Subsidiaries will not, and nor will not it permit any Subsidiary of the Borrower to, incur, create, assume or permit to exist any Debt, except:
(a) Debt to the Lenders pursuant to the Loan Documents;
(b) intercompany Debt between described on Schedule 9.9 and any extensions, renewals or among refinancings of such existing Debt so long as (i) the principal amount of such Debt after such renewal, extension or refinancing shall not exceed the principal amount of such Debt which was outstanding immediately prior to such renewal, extension or refinancing and (ii) such Debt shall not be secured by any assets other than assets securing such Debt, if any, prior to such renewal, extension or refinancing;
(c) Debt of a Subsidiary Guarantor owed to the Borrower and or another Subsidiary Guarantor; provided that such Debt must according to its terms be fully subordinate in all respects to any of its Operating Subsidiaries such Subsidiary Guarantor's indebtedness, liabilities or Wholly-Owned Subsidiaries obligations to the Agent and the Lenders pursuant to any Loan Document;
(d) Guarantees and other Debt incurred in the ordinary course of business with respect to surety and appeal bonds, performance and return-of-money bonds, banker's acceptances and other similar obligations including those of the type described in Section 11.2(f);
(including, without limitation, e) Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: or any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) constituting purchase money Debt (including Capital Lease Obligations) and secured by purchase money LiensLiens permitted by Section 11.2(g), which Debt and Liens are permitted under and meet all of such Debt, in the requirements of clause aggregate, not to exceed at any time an amount equal to ten percent (g10.0%) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstandingBorrower's Tangible Net Worth;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries or any Subsidiary of the Borrower of the type described in clause (l) of the definition of Debt, such Debt, in aggregate principal or principal equivalent amount, not to exceed at any time an amount equal to twenty percent (20.0%) of the Borrower's Tangible Net Worth;
(g) Debt constituting obligations to reimburse worker's compensation insurance companies for claims paid by such companies on behalf of the Borrower or any Subsidiary of the Borrower in accordance with the policies issued to the Trustee Borrower or any such Subsidiary;
(h) Debt secured by the Liens permitted by Section 11.2(d) and Section 11.2(e);
(i) unsecured Debt arising under, created by and consisting of Hedge Agreements, provided, (i) such Hedge Agreements shall have been entered into for the Noteholders under purpose of hedging actual risk and not for speculative purposes and (ii) that each counterparty to such Hedge Agreement shall be a Lender (or an Affiliate thereof) or shall be rated at least AA- by Standard and Poor's Rating Service or Aa3 by Moody's Investors Service, Inc.;
(j) Debt arixxxx xxom endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business of the Borrower or a Subsidiary of the Borrower;
(k) Debt consisting of commercial letters of credit and reimbursement obligations therefor (and evidenced and governed byGuarantees of such reimbursement obligations by Subsidiaries of the Borrower) where the Subordinated Guaranteesaggregate face amount of such letters of credit does not at any time exceed $200,000,000; providedand
(l) In addition to the Debt described in the foregoing clauses (a) through (k), however, that such debt may Debt (including with respect to standby letters of credit) which does not be initially incurred exceed twenty percent (and 20%) of the Holdings Senior Notes may not be issued) after August 1, 2000Borrower's Tangible Net Worth in aggregate principal amount at any time outstanding.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to the Lenders pursuant to 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;.
(b) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries existing on the date hereof that is reflected on Schedule 9.02.
(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 ninety (90) days past the date of receipt of the invoice or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP.
(d) Equipment and Fixture Financing Debt not to exceed $25,000,000 in the aggregate at any one time outstanding.
(e) Debt associated with worker’s compensation claims, performance, bid, surety or similar bonds or surety obligations required by Governmental Requirements or third parties in the ordinary course of business in connection with the operation of the Oil and Gas Properties.
(f) intercompany Debt between the Borrower and any Subsidiary or between Subsidiaries to the Trustee 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 Indebtedness on terms set forth in the Guaranty Agreement.
(g) endorsements of negotiable instruments for collection in the ordinary course of business.
(h) any Debt of the Borrower or any Subsidiary and guarantees thereof by any Credit Party or any other Subsidiary; provided that: (i) such Debt shall be unsecured, (ii) such Debt shall not provide for any amortization of principal or any scheduled or mandatory prepayments or Redemptions on any date prior to 180 days after the Noteholders under Maturity Date (other than customary high yield indenture provisions requiring offers to repurchase in connection with asset sales or any change of control, casualty or condemnation event prepayments or customary acceleration rights after an event of default), (iii) such Debt shall not contain a scheduled maturity date that is earlier than 180 days after the Maturity Date, (iv) such Debt (or the documents governing such Debt) shall (A) contain no financial covenant that is more restrictive or onerous with respect to the Credit Parties than the financial covenants herein, and evidenced (B) not contain covenants (other than financial covenants) and governed byevents of default that are, taken as a whole, more restrictive or onerous with respect on the Credit Parties than those contained in this Agreement are on the Credit Parties (as reasonably determined by the Borrower in good faith), (v) after giving effect to the incurrence of such Debt, the application of the proceeds thereof, and any automatic reduction of the Borrowing Base pursuant to Section 2.07(e) on account thereof, each on a pro forma basis: (A) the Subordinated GuaranteesBorrower shall be in pro forma compliance with Section 9.01 as of the last day of the applicable period covered by the most recent certificate delivered pursuant to Section 8.01(c) (for purposes of Section 9.01, as if such Debt, and all other Debt permitted pursuant to this Section 9.02(h) issued or incurred since the first day of such applicable period, had been issued or incurred on the first day of such applicable period) and (B) no Event of Default or Borrowing Base Deficiency shall exist, (vi) the Borrowing Base shall automatically be reduced on the date of the incurrence of such Debt in accordance with Section 2.07(e) and (vii) the Net Proceeds of such Debt shall be used to prepay the Loans in accordance with and to the extent required by Section 3.04(c)(iii) and Section 3.04(c)(iv).
(i) Taxes, assessments or other governmental charges which are not yet due or are being contested in good faith in accordance with Section 8.04(a).
(j) Debt (other than in connection with a loan or lending transaction) incurred in the ordinary course of business for drilling, completing, leasing and reworking oil, gas and CO2 xxxxx or the treatment, distribution, transportation or sale of production therefrom; provided, however, that such debt may Debt shall not be initially incurred deemed to refer to or include any long term debt.
(k) Debt which represents an extension, refinancing, or renewal of any of the foregoing; provided that (i) the principal amount of such Debt is not increased (other than by the costs, fees, and expenses and by accrued and unpaid interest paid in connection with any such extension, refinancing or renewal), (ii) the interest rate of such Debt is not increased, (iii) any Liens securing such Debt are not extended to any additional property of any Credit Party, (iv) no Credit Party that is not originally obligated with respect to repayment of such Debt is required to become obligated with respect thereto, (v) such extension, refinancing or renewal does not result in a shortening of the average weighted maturity of the Debt so extended, refinanced or renewed, (vi) the terms of any such extension, refinancing, or renewal are not materially less favorable to the obligor thereunder, taken as a whole, than the original terms of such Debt and (vii) if the Debt that is refinanced, renewed, or extended was subordinated in right of payment to the Indebtedness, then the terms and conditions of the refinancing, renewal, or extension Debt must include subordination terms and conditions that are at least as favorable to the Administrative Agent and the Holdings Senior Notes may Lenders as those that were applicable to the refinanced, renewed, or extended Debt.
(l) Debt arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business.
(m) other Debt not be issued) after August 1, 2000to exceed $20,000,000 in the aggregate at any one time outstanding.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower toCreate, incur, assume or suffer to exist, or permit any of its Restricted Subsidiaries to create, incur, assume or permit suffer to exist exist, any Debt, except:
(ai) in the case of the Borrower,
(A) Debt to the Lenders pursuant to the Loan Documents;
(b) intercompany Debt between or among the Borrower and any in respect of its Operating Subsidiaries or Wholly-Owned Subsidiaries Hedge Agreements incurred in the ordinary course of business and consistent with prudent business practice with an aggregate Agreement Value not to exceed $400,000,000 at any time outstanding, provided that the aggregate Agreement Value of Debt in respect of clause (including, without limitation, ii) of the definition of Hedge Agreements shall not exceed $100,000,000 at any time outstanding,
(B) Subordinated Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries to a wholly owned Restricted Subsidiary of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such SubsidiariesBorrower, the proceeds of which loans are used for the purposes permitted by Section 2.10)Debt (x) shall constitute Pledged Debt, subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b(y) shall be unsecured, on terms reasonably acceptable to the Administrative Agent and (z) shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement promissory notes in form and substance satisfactory to the Administrative AgentAgent and such promissory notes shall be pledged as security for the Obligations under the Loan Documents of the holder thereof and delivered to the Collateral Agent pursuant to the terms of the Security Agreement,
(C) the 2000 Convertible Subordinated Notes, provided, however, that temporary advances made from time to time in the ordinary course of business Convertible Subordinated Notes and the Existing Notes,
(D) Debt secured by Liens permitted by 5.02(a)(iv) and Capitalized Leases not to exceed in the aggregate $100,000 in aggregate principal amount 75,000,000 at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;outstanding for all Debt under this clause (i)(D),
(cE) unsecured other Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, provided that the aggregate principal amount of the such other Debt referred to in this Section 9.1(d) shall outstanding at any time does not exceed $15,000,000 in aggregate amount at any time outstanding;25,000,000 and
(eii) liabilities (A) in the case of any Restricted Subsidiary of the Borrower in respect of unfunded vested benefits under any Plan if and that is a Domestic Subsidiary, Subordinated Debt owed to the extent Borrower or to a Restricted Subsidiary that the existence of such liabilities will not constitute, cause or result in is a Default; and
(f) Debt Domestic Subsidiary of the Borrower and its Subsidiaries Borrower, provided that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall be on terms reasonably acceptable to the Trustee Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Noteholders Administrative Agent and such promissory notes shall be pledged as security for the Obligations under (the Loan Documents of the holder thereof and evidenced delivered to the Collateral Agent pursuant to the terms of the Security Agreement or alternatively shall be documented in any other way reasonably satisfactory to the Administrative Agent pursuant to which the Administrative Agent shall have a valid and governed by) the Subordinated Guarantees; perfected security interest in such Debt provided, however, that notwithstanding the foregoing, no promissory note shall be created to evidence any such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1Debt, 2000.unless such
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will not(a) Neither Newark, and will not permit any Subsidiary of the Borrower toeither Newark Subsidiary, VCP Exportadora nor VCP shall create, incur, issue or suffer to exist (or permit any of their respective Subsidiaries to create, assume incur, issue or permit suffer to exist exist) any Debt, except:
(ai) with respect to Newark and the Newark Subsidiaries: (A) Debt under and in connection with the Loan Documents (including any related to the Lenders pursuant purchase of Products as described in Section 8.13 and the Export Agreements, and the advances to be made by the Loan Documents;
Newark Subsidiaries to Newark for the prepayment of the sale of Products as contemplated by Section 2.1), (B) Debt under and in connection with the Other Facility as permitted in clause (b), (C) intercompany unsecured Debt between entered into for the sole purpose of performing cash management or among the Borrower and other financial management functions with any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred Affiliates in the ordinary course of business business, (includingD) other unsecured Debt with Affiliates with respect to which each such Affiliate has become a party to the Subordination Agreement by delivery to the Administrative Agent of its executed joinder thereto, without limitation(E) Debt with non-Affiliates that is unsecured or is secured by Property that is neither part of the Collateral nor Capital Stock of Aracruz (or any interests therein, including dividends payable thereon) and (F) until the Borrowing Date, Debt owed by that will be repaid in full from the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by in the Borrower manner contemplated in Section 2.2, and
(ii) with respect to VCP Exportadora and VCP (and their respective Subsidiaries), any additional Debt (with respect to Debt incurred after the date hereof, only so long as there would not be a violation of the Total Debt to Total Capitalization Ratio determined as if the date on which such Subsidiariesadditional Debt is incurred were the last day of a Fiscal Semester); it being understood that the Debt of Newark and the Newark Subsidiaries is limited to that permitted in clause (i).
(b) Newark and the Newark Subsidiaries may enter into the Other Facility at any time and, from time to time, incur Debt thereunder so long as, as of the date of the issuance of any such Debt (and as of the date of any amendment, restatement or other modification thereof that increases the Other Debt Service Amount with respect to any Payment Date through and including the Final Maturity Date or increases the principal amount of any Debt issued thereunder; it being understood that any amendments, restatements or other modifications of any such Debt that do not have any such effect need not comply with the following): (i) no Default then exists or would result from the incurrence of such Debt (or amendment or modification thereof), (ii) for so long as the obligations under the Loans remain outstanding, the payment dates of all Debt issued under the Other Facility shall be the Payment Dates (with the exception that the first payment date applicable to any such Debt may be the second Payment Date after the issuance of such Debt), (iii) the net proceeds of which loans are used such Debt shall promptly (and, in any event, within one Business Day thereof) be applied to the repayment of any of Newark's other Debt (including the repayment of the prepayment for the purposes permitted sale of Products contemplated by Section 2.102.1 or the repayment of any other Debt under the Other Facility), subject the making of a payment for Products previously purchased by Newark or to make an export pre-payment to VCP or any of its Brazilian Subsidiaries (including VCP Exportadora) for future Products, (iv) the Agents shall have received from Newark, the Newark Subsidiaries and the Other Agent confirmation that, Credit Agreement 44 pursuant to the following requirements: any Security Agreement, Newark and all (to the extent the Newark Subsidiaries are obligors under the Other Facility) the Newark Subsidiaries have granted the creditors under the Other Facility a security interest in the Sales Collateral and the Collection Account and that the creditors under the Other Facility agree to share such security interest (and otherwise manage the collections on the Receivables) in the manner described in the Security Agreement, (v) the conditions of clause (c) shall have been satisfied and (vi) the Agents shall have received a certificate of the chief financial officer or a more senior officer of VCP certifying that each of the above conditions has been satisfied.
(c) Before any Debt permitted under the Other Facility may be incurred (it being understood that the following provisions shall apply with respect to each issuance of Debt under the Other Facility), VCP shall:
(i) for each remaining Interest Period through the Final Maturity Date, provide the Agents a certificate (which the Administrative Agent shall promptly provide to each of the Lenders) of its treasurer, chief financial officer, chief accounting officer or more senior officer (with reasonable detail as to calculations) in which is included (or to which is attached) a projection (based upon VCP's reasonable estimates at such time) of: (A) the Projected Available Collections for such Interest Period, (B) the Debt Service Amount for the Payment Date at the end of such Interest Period (provided that interest payable shall be calculated using an interest rate equal to the then-current interest rate plus an additional 1% per annum), (C) the ratio of: (1) the Bank Percentage (to the extent applicable, as to be established pursuant to this Section 9.1(b2.3(e) shall of the Security Agreement in connection with the issuance of such Debt under the Other Facility) of the amount described in clause (A) to (2) the amount described in clause (B) and (D) if any of such ratios for any Interest Period is less than 1:1, the amount of additional collections that would be unsecuredrequired during such Interest Period in order to obtain such ratio for such Interest Period, shall and
(ii) if any additional collections are projected to be evidenced by instruments satisfactory required pursuant to clause (i)(D), provide to the Administrative Agent which will be pledged either: (A) one or more supply contracts, in form and substance reasonably satisfactory to the Majority Lenders and enforceable by the Administrative Agent Agent, whereby one or more Person(s): (1) organized in an OECD Country (including Brazil) and (2) with a long-term foreign currency debt rating from each of Standard & Poor's and Moody's at least equal to the then-applicable long-term foxxxxx xurrency debt rating of VCP, agrees (in the aggregate for all such Person(s)) to deliver (at the benefit request of the Administrative Agent at any time, and from time to time: (x) during the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to existence of an Event of Default or (y) upon the Administrative Agent's receipt from Newark of a certificate of its treasurer, providedchief financial officer or more senior officer that such request is necessary to avoid a Specified Event; it being understood that the Administrative Agent shall, howeverupon receipt of such request from Newark, promptly deliver such request to such other Person(s)) sufficient products to Newark the sale of which will generate Dollar collections at least equal to the aggregate amount of all additional collections so projected to be required for all Interest Periods through the Final Maturity Date (it being understood that temporary advances made from time to time any projected excess in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower Interest Periods shall not be required applied to offset any additional collections projected to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the required with respect to other Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and Periods except to the extent that at Credit Agreement 45 the time of the incurrence of such new Debt Newark has irrevocably instructed the Collateral Agent to retain in the Collection Subaccount all or any portion of any such projected excess for application as Carry-Over Amounts in any later Interest Period(s)), which deliveries may be requested by the Administrative Agent at any time through the date that is five Business Days after the Payment Date at the end of the last Interest Period for which any additional collections are so projected to be required (it being understood that the Administrative Agent may make such requests only during the existence of an Event of Default or at the request of Newark if Newark expects that it will need to receive such liabilities will not constituteproducts in order to ensure that no Event of Default described in Section 9.1(o) shall occur, cause and that any collections relating to such delivered products would be applied to pay any amounts then payable under the Loan Documents and no such amounts would be payable to the Other Agent for application in connection with the Other Facility), or result in a Default; and(B) such other additional credit enhancement as the Majority Lenders may agree.
(fd) Debt Should the Majority Lenders reasonably determine that the Projected Available Collections identified in the certificate delivered by VCP pursuant to clause (c)(i) are greater than the amount that should be reasonably estimated, the Majority Lenders may (within seven New York Business Days of their receipt of such projections) deliver notice to VCP, Newark and the Borrower and its Subsidiaries Administrative Agent of such determination. Should VCP receive such notice within such period, VCP shall either deliver amended projections for the Lenders' review (subject to the Trustee approval process described in this paragraph) or engage PricewaterhouseCoopers or another independent auditor or other Person acceptable to the Majority Lenders, at the expense of VCP, to analyze the projections and either certify to the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, Lenders that such debt may not projections are reasonable estimates by VCP or, if not, to work with VCP to establish projections that can be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000so certified.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will notNot, and will not permit any Subsidiary of the Borrower other Loan Party to, create, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to Obligations under this Agreement and the Lenders pursuant to the other Loan Documents;
(b) intercompany Debt between or among secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided that the Borrower aggregate amount of all such Debt at any time outstanding shall not exceed $2,500,000, provided, however, the forgoing limit shall not include a Sale Leaseback if such Sale Leaseback is consummated in an arm’s-length manner on market terms and conditions;
(c) Debt of the Company to any of its Operating Subsidiaries or domestic Wholly-Owned Subsidiaries incurred in the ordinary course Subsidiary or Debt of business (including, without limitation, Debt owed by the Operating Subsidiaries or any domestic Wholly-Owned Subsidiaries of the Borrower Subsidiary to the Borrower in connection with loans Company or another domestic Wholly-Owned Subsidiary; provided that, upon the reasonable request of proceeds of the Loans made by the Borrower to Administrative Agent, such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, 46 shall be evidenced by instruments a demand note in form and substance reasonably satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, obligations under such demand note shall be subordinated to the Obligations pursuant to of the Company hereunder in a subordination agreement in form and substance manner reasonably satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(cd) unsecured Debt under (excluding the Interest Rate Protection Agreements required Prudential Debt) described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased in excess of the amount set forth on such Schedule;
(e) the Debt to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if Repaid (so long as such Debt constitutes a part is repaid on the Closing Date with the proceeds of the Obligationsinitial Loans hereunder);
(f) Contingent Liabilities arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 11.5;
(g) the Prudential Debt so long as the principal amount thereof is not increased and each mandatory payment of principal and interest thereunder is timely made in accordance with the terms of the Prudential Debt Documents;
(h) Contingent Liabilities listed on Schedule 11.1;
(i) existing Guaranties by the Company and/or its Subsidiaries in respect of Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in Company or its domestic Subsidiaries permitted by this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding11.1;
(ej) liabilities Hedging Obligations incurred in favor of Administrative Agent, any Lender or any of their Affiliates for bona fide hedging purposes and not for speculation;
(k) Debt owing to any trust created under a supplemental executive retirement program of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a DefaultCompany; and
(fl) Debt of the Borrower and its Subsidiaries Company owing to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000any Canadian Entity.
Appears in 1 contract
Samples: Credit Agreement (Cpi Corp)
Debt. Holdings will not incur, create, assume or permit to ---- exist any Debt except the Holdings Senior Notes. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume or permit to exist any Debt, except:
(a) Debt to the Lenders pursuant to the Loan Documents;
(b) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Wholly- Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, and intercompany Debt owed to Holdings by the Operating Subsidiaries or Wholly-any of its Wholly- Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be -------------- evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, and shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 500,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be ------------ secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt ------------- which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Effective Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Datebeing renewed, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liensextended or refinanced, all of which Debt and Liens are permitted under and meet all of the requirements of clause (g) and (with respect to renewals, extensions or refinancings) clause (n) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional ----------- unsecured Debt, and (iv) Guarantees by the Borrower of loans to employees, officers and directors of the Borrower or its Subsidiaries made for the purpose of financing purchases of Capital Stock of Holdings by such employees, officers or directors (as applicable) not to exceed $250,000 in aggregate principal amount at any time Guaranteed; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed -------------- $15,000,000 10,000,000 in aggregate amount at any time outstandingoutstanding (exclusive of Debt owed to a Vendor consisting of amounts payable by the Borrower in accordance with a Supply Agreement which are not past due by more than 90 days beyond the due dates therefor specified in the applicable invoices);
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and;
(f) Debt consisting of obligations for repayment of customer deposits received in the ordinary course of business of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.Subsidiaries;
Appears in 1 contract
Samples: Credit Agreement (Ipcs Inc)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower other Credit Party to, directly or indirectly, create, incur, createassume, assume guarantee or permit to exist otherwise become or remain directly or indirectly liable with respect to, any Debt, exceptexcept for:
(a) Debt to incurred under the Lenders pursuant to the Loan Financing Documents;
(b) intercompany Debt between or among outstanding on the Borrower date of this Agreement and set forth on Schedule 5.1 and any of Refinancing Indebtedness in connection therewith;
(c) Intercompany Debt arising from loans made by (i) Borrower to any Guarantor, (ii) any Guarantor to Borrower, (iii) Borrower to its Operating Restricted Subsidiaries or that are Wholly-Owned Subsidiaries incurred to fund working capital requirements of such Restricted Subsidiaries in the ordinary course Ordinary Course of business Business, or (including, without limitation, Debt owed by the Operating Subsidiaries or iv) any Restricted Subsidiary that is a Wholly-Owned Subsidiaries Subsidiary of the Borrower to Borrower; provided, however, that upon the Borrower in connection with loans request of proceeds of the Loans made by the Borrower to Administrative Agent at any time, any such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments promissory notes having terms reasonably satisfactory to the Administrative Agent and Lead Lenders, and the sole originally executed counterparts of which will shall be pledged and delivered (subject to any obligation to deliver to the First Lien Agent) to Administrative Agent Agent, for the benefit of the Administrative Agent and the Lenders andSecured Parties, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of as security for the Obligations;
(id) existing Guarantees by Borrower of Debt of any Restricted Subsidiary permitted hereunder and by any Restricted Subsidiary of Debt of Borrower or any other Restricted Subsidiary permitted hereunder;
(e) Debt of Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Debt assumed in connection with the principal amounts acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and as otherwise described on Schedule 7.10 hereto extensions, renewals and renewals, extensions or refinancings replacements of any such Debt which that do not increase the outstanding principal amount thereof; provided that the aggregate principal amount of Debt permitted by this clause (e) shall not exceed $10,000,000 at any time outstanding;
(f) Debt, if any, arising under Swap Contracts (subject to the limitations in the definition of Swap and Swap Contract), to the extent permitted under Section 5.6;
(g) [Reserved;]
(h) Debt of any Person that becomes a Subsidiary after the Closing Date; provided that such Debt exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary;
(i) Debt constituting Permitted Pari Debt; provided that (A) at the time of the incurrence thereof, after giving effect thereto, the aggregate amount of Permitted Pari Debt incurred at or prior to such time does not exceed the positive excess, if any, of (1)(x) $20,000,000 plus (y) any additional amount of Permitted Pari Debt so long as Borrower would be permitted to incur $1.00 of additional Permitted Pari Debt subject to a pro forma compliance with (i) a ratio of PDP PV-10 Value to Consolidated Secured Total Debt of not less than 0.8:1.0 and (ii) a Consolidated Secured Total Leverage Ratio of not greater than 6.0:1.0, reduced by (2) the amount of outstanding Debt incurred pursuant to Section 5.1(a), (B) no Default or Event of Default shall have occurred and be continuing on the date of incurrence of such Permitted Pari Debt and (C) Borrower shall have delivered a certificate executed by a Responsible Officer to the Administrative Agent and the Lead Lenders demonstrating with reasonable detail compliance with the requirements in the preceding clauses (A) and (B) and the definition of Permitted Pari Debt;
(j) Debt incurred to finance the acquisition of equipment, which do not shorten provided that the maturity of any principal amount of such Debt does not exceed the purchase price of such equipment;
(k) other Debt in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(l) any Contingent Obligation permitted by Section 5.3;
(m) Debt incurred pursuant to an Excluded Property Leaseback;
(n) Debt incurred under Bonds;
(o) Debt constituting letters of credit and bank guaranties, to the terms extent that such letters of credit and provisions bank guaranties are fully cash collateralized, in an aggregate principal amount not exceeding $10,000,000 at any time outstanding; provided that, if any Permitted Pari Debt is in the form of which are a revolving credit facility or letter of credit facility than this basket shall be zero;
(p) First Lien Credit Agreement Debt and Permitted Additional First Lien Debt and any Refinancing Indebtedness in connection therewith; provided that the aggregate amount of such Debt shall not materially more onerous than exceed the First Lien Debt Cap at any one time outstanding; and
(q) Junior Lien Debt and unsecured Debt in the form of notes or loans under credit agreements, indentures or other similar agreements or instruments; provided that either the terms and conditions of such Debt on have been consented to by the Closing DateLead Lenders (not to be unreasonably withheld or delayed) or:
(i) the terms of such Debt do not provide for any scheduled repayment, mandatory redemption or sinking fund obligations prior to the date that is ninety one (91) days after the Maturity Date (other than customary offers to repurchase upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default);
(ii) purchase money the covenants, events of default and Guarantees and other terms of such Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt other than with respect to interest rate and Liens are permitted under and meet all of the requirements of clause premiums):
A. shall not include any financial maintenance covenants; and
B. shall comply with one (gor more) of the definition following statements with respect to such covenants, events of Permitted Liens contained default and Guarantees and other terms of such Debt, as determined in Section 1.1good faith by the board of directors of Borrower and certified in good faith to the Administrative Agent and Lead Lenders in a certificate of the Chief Financial Officer of Borrower prior to or at the time of the incurrence of such Debt, which certificate shall include a copy of the board of directors’ resolutions as to such determination and a reasonably detailed description of the material terms and conditions of such Debt or drafts of the documentation relating thereto :
(1) the covenants, events of default and Guarantees and other terms of such Debt are customary for similar Debt in light of then-prevailing market conditions;
(2) the covenants, events of default and Guarantees and other terms of such Debt are substantially the same as those set forth herein; or
(3) when taken as a whole (other than interest rate and redemption premiums), the covenants, events of default and Guarantees and other terms of such Debt are not more restrictive to Borrower and the Restricted Subsidiaries than those set forth in this Agreement;
(iii) additional unsecured if such Debt is subordinated, the Obligations have been designated as “Designated Senior Debt; provided, however, that the aggregate principal amount ” or its equivalent in respect of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstandingsuch Debt;
(eiv) liabilities immediately before and immediately after giving pro forma effect to the incurrence of such Debt, no Default or Event of Default shall have occurred and be continuing;
(v) such Debt shall not contain any terms that may prohibit or prevent the repayment of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a DefaultObligations; and
(fvi) any fees and other consideration paid by Borrower in connection with the incurrence of such Debt of the Borrower and its Subsidiaries to the Trustee and lenders under the Noteholders under First Lien Credit Agreement shall be paid pro-rata to the Lenders, based upon an aggregate of (and evidenced and governed by1) the Subordinated Guarantees; providedamount of loans outstanding under the First Lien Credit Agreement made by each such lender, however, that and (2) the amount of Loans outstanding made by each such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Lender.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Warren Resources Inc)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower toCreate, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or permit suffer to exist exist, any Debt, except:
(a) in the case of any Loan Party, (i) Debt in respect of Hedge Agreements required to the Lenders be maintained pursuant to Section 6.15, and such other Hedge Agreements entered into to hedge against fluctuations in interest rates or foreign exchange rates and the Loan Documents;
(b) intercompany Debt between or among the Borrower and any price of its Operating Subsidiaries or Wholly-Owned Subsidiaries metals incurred in the ordinary course of business and consistent with prudent business practice, and (includingii) Debt in respect of any Existing Letter of Credit or any Bank Guarantee to the extent that a Letter of Credit has been issued and is outstanding hereunder to support such Loan Party’s reimbursement obligation in respect of such Existing Letter of Credit or Bank Guarantee;
(i) in the case of any Foreign Subsidiary, without limitationunsecured Debt owed to the European Borrower or Allweiler Group GmbH or to another Foreign Subsidiary which is aany Secured Loan Party of which such first Foreign Subsidiary is a direct or indirect Wholly Owned Subsidiary, (ii) in the case of any other Subsidiary of the US Borrower, unsecured Debt owed to the US Borrower or to a Wholly Owned Subsidiary (other than a Foreign Subsidiary) of the US Borrower, (iii) in the case of any Subsidiary of the European Borrower, unsecured Debt owed to the European Borrower or to a Wholly Owned Subsidiary of the European Borrower which is a Secured Loan Party, and (ivby the US Borrower or any Wholly Owned Subsidiary and (ii) additional unsecured Debt owed by any Loan Partythe US Borrower or any of its Subsidiaries to any other Loan Partythe US Borrower or any of its Subsidiaries in an aggregate amount not to exceed $100,000,000 outstanding at any time less the Operating Subsidiaries or Wholly-Owned Subsidiaries aggregate amount of equity Investments made after the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted Closing Date pursuant to this Section 9.1(b7.06(a)(iv); provided that, in each case, such Debt (A) owed to a US Obligations Guarantor shall constitute Pledged Debt securing the Guaranteed Obligations, (B) shall be unsecuredon terms acceptable to the Administrative Agent, (C) shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement promissory notes in form and substance satisfactory to the Administrative Agent, providedand such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreement, howeverand (D) in the case of clause (iv), that temporary advances shall not exceed an aggregate amount of $50,000,000 outstanding at any time less the aggregate amount of equity Investments made from after the Closing Date pursuant to Section 7.06(a)(iv);
(c) in the case of the US Borrower and its Subsidiaries,
(i) Debt under the Loan Documents,
(ii) Debt secured by Liens permitted by Section 7.01(d) not to exceed in the aggregate $20,000,000 at any time to time outstanding,
(iii) unsecured trade payables not overdue by more than 60 days incurred in the ordinary course of business not business, and
(iv) (A) Capitalized Leases, (B) in the case of Capitalized Leases to exceed $100,000 in aggregate principal amount at which any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary is a party, Debt of the US Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
type described in clause (i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, “Debt” guaranteeing the Obligations of such Subsidiary under such Capitalized Leases and (iiiC) additional unsecured other Debt; provided, howeverfor all of clauses (A), that the (B) and (C) in an aggregate principal amount of the Debt referred not to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount 50,000,000 at any time outstandingoutstanding (in the case of Capitalized Leases, as determined in accordance with US GAAP), and
(v) Debt in respect of letters of credit or Bank Guarantees (other than those issued pursuant to this Agreement) in an aggregate amount not to exceed $20,000,000 outstanding at any time;
(d) Surviving Debt outstanding on the Closing Date without any extension, renewal or refinancing thereof; and
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) unsecured Debt of the US Borrower, so long as (A) such Debt does not mature until at least six months after the Maturity Date and has no scheduled amortization prior to that date, (B) after giving effect to the incurrence of such Debt, the US Borrower and its Subsidiaries the Loan Parties shall be in pro forma compliance with the financial covenants set forth in Section 6.18, (C) at the time of incurrence of such Debt and after giving effect thereto, no Default or Event of Default shall have occurred or be continuing and (D) the documentation governing such Debt contains customary market terms reasonably satisfactory to the Trustee and Administrative Agent, including, without limitation, if such Debt is subordinated Debt, provisions subordinating such Debt to the Noteholders Obligations of the Loan Parties under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Colfax CORP)
Debt. The Borrower and the Operating Subsidiaries will shall not, and will not permit any Subsidiary of the Borrower to, incureither directly or indirectly, create, assume assume, incur or permit to exist have outstanding any DebtDebt (including purchase money indebtedness), or become liable, whether as endorser, guarantor, surety or otherwise, for any debt or obligation of any other Person, except:
(a) Debt to the Lenders pursuant to Obligations under this Agreement and the other Loan Documents;
(b) intercompany Debt between or among obligations of the Borrower and any for Taxes, assessments, municipal or other governmental charges;
(c) obligations of its Operating Subsidiaries or Wholly-Owned Subsidiaries the Borrower for accounts payable, other than for money borrowed, incurred in the ordinary course of business business;
(includingd) Subordinated Debt;
(e) Hedging Obligations incurred in favor of Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(f) Debt for Capital Expenditures, without limitationother than Capital Expenditures constituting Permitted Acquisitions, provided that the aggregate amount of all such Debt owed by outstanding at any time shall not exceed One Million and no/100 Dollars ($1,000,000.00);
(g) Debt described on Schedule 9.1 and any extension, renewal or refinancing thereof so long as the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made principal amount thereof is not increased;
(h) performance guaranties issued by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit operating obligations of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances its Subsidiaries made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, Borrower’s business; provided, however, that Debt thereunder may be secured if such Debt constitutes a part guaranties shall exclude any guaranty of the Obligationspayment of such Subsidiaries’ monetary obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such other unsecured Subordinated Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of addition to the Debt referred to listed above, in this Section 9.1(d) shall not exceed $15,000,000 in an aggregate amount outstanding at any time outstanding;
not to exceed One Million and 00/100 Dollars (e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default$1,000,000.00); and
(fj) revolving loan facility Debt or Debt incurred in connection with advance payment or performance guaranties, each to the extent incurred by Borrower’s foreign Subsidiaries after the date hereof, provided, (i) the applicable foreign Subsidiary uses good faith efforts to utilize Lender or an Affiliate of Lender to obtain such financing (considering all of the Borrower business circumstances involved) and its Subsidiaries it is determined to be impractical for the Trustee applicable foreign Subsidiary to obtain such financing from Lender or any of Lender’s Affiliates, whether utilizing Letters of Credit issued under this Agreement or otherwise; and the Noteholders under (and evidenced and governed byii) the Subordinated Guarantees; provided, however, that total aggregate outstanding amount of such debt may Debt incurred after the date hereof does not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000exceed $5,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Hill International, Inc.)
Debt. The Borrower and the Operating Subsidiaries will notnot incur, create, assume, or permit to exist, and will not permit any Subsidiary of the Borrower to, to incur, create, assume assume, or permit to exist exist, any Debt, except:
(a) Debt to the Lenders pursuant to the Loan Documents;
Lender; (b) intercompany Existing Debt between described on SCHEDULE 3 hereto; and (c) Debt incurred to finance the purchase of property to be used in the ordinary course of Borrower's business in an aggregate amount during any one fiscal year not to exceed Two Hundred Fifty Thousand Dollars ($250,000.00). Craftmade International, Inc. First Amended and Restated Credit Agreement 25 32 Section 8.2 Limitation on Liens. Borrower will not incur, create, assume, or among the Borrower permit to exist, and will not permit any Subsidiary to incur, create, assume, or permit to exist, any Lien upon any of its Operating property, assets, or revenues, whether now owned or hereafter acquired, except: (a) Liens disclosed on SCHEDULE 5 hereto; (b) Liens in favor of Lender; (c) Encumbrances consisting of minor easements, zoning restrictions, or other restrictions on the use of real property that do not (individually or in the aggregate) materially affect the value of the assets encumbered thereby or materially impair the ability of Borrower or the Subsidiaries to use such assets in their respective businesses, and none of which is violated in any material respect by existing or Wholly-Owned Subsidiaries proposed structures or land use; (d) Liens for taxes, assessments, or other governmental charges which are not delinquent or which are being contested in good faith and for which adequate reserves have been established; (e) Liens of mechanics, materialmen, warehousemen, carriers or other similar statutory Liens securing obligations that are not yet due and are incurred in the ordinary course of business business; (includingf) Liens resulting from good faith deposits to secure payments of worker's compensation or other social security programs or to secure the performance of tenders, without limitationstatutory obligations, Debt owed by the Operating Subsidiaries surety and appeal bonds, bids, or Wholly-Owned Subsidiaries contracts (other than for payment of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(bDebt) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not business; and (g) Liens created to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) secure purchase money Debt (including Capital Lease Obligationspermitted by SECTION 8.1(c) secured by purchase money Liens, which Debt and provided that such Liens are permitted under and meet all do not extend to or cover any property of Borrower other than the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of property being acquired with the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000permitted by SECTION 8.1(c).
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower other Credit Party to, directly or indirectly, create, incur, createassume, assume guarantee or permit to exist otherwise become or remain directly or indirectly liable with respect to, any Debt, exceptexcept for:
(a) Debt to incurred under the Lenders pursuant to the Loan Financing Documents;
(b) intercompany Debt between or among outstanding on the date of this Agreement and set forth on Schedule 5.1;
(c) Intercompany Debt arising from loans made by (i) the Borrower and to any of Guarantor, (ii) any Guarantor to the Borrower, (iii) Borrower to its Operating Subsidiaries or that are Wholly-Owned Subsidiaries incurred to fund working capital requirements of such Subsidiaries in the ordinary course Ordinary Course of business Business, or (includingiv) any Guarantor to any other Guarantor; provided, without limitationhowever, Debt owed by that upon the Operating Subsidiaries or Wholly-Owned Subsidiaries request of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to Administrative Agent at any time, any such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments promissory notes having terms reasonably satisfactory to the Administrative Agent and the Lead Lenders, and the sole originally executed counterparts of which will shall be pledged and delivered to the Administrative Agent Agent, for the benefit of the Administrative Agent and the Lenders andSecured Parties, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of as security for the Obligations;
(id) existing Guarantees by the Borrower of Debt of any Subsidiary permitted hereunder and by any Subsidiary of Debt of the Borrower or any other Subsidiary permitted hereunder;
(e) Debt of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Debt assumed in connection with the principal amounts acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and as otherwise described on Schedule 7.10 hereto extensions, renewals and renewals, extensions or refinancings replacements of any such Debt which that do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debtthereof; provided, however, provided that the aggregate principal amount of the Debt referred to in permitted by this Section 9.1(dclause (e) shall not exceed $15,000,000 in aggregate amount 1,000,000 at any time outstanding;
(ef) liabilities Debt, if any, arising under Swap Contracts, to the extent permitted under Section 5.6;
(g) Debt in an amount not to exceed $15,000,000 under a Conforming RBL and any refinancings, refundings, renewals or extensions thereof; provided that (a) the obligors under such refinancing, refunding, renewal or extension remain the same as immediately before such transaction or otherwise any new obligor becomes a Guarantor hereunder and (b) such refinancing, refunding, renewal or extension is for a Conforming RBL;
(h) Debt of any Person that becomes a Subsidiary after the Borrower Closing Date; provided that such Debt exists at the time such Person becomes a Subsidiary and is not created in respect contemplation of unfunded vested benefits or in connection with such Person becoming a Subsidiary;
(i) [reserved];
(j) Debt incurred to finance the acquisition of equipment, provided that the amount of such Debt does not exceed the purchase price of such equipment;
(k) other unsecured Debt in an aggregate principal amount not exceeding $1,000,000 at any time outstanding;
(l) any Contingent Obligation permitted by Section 5.3;
(m) [reserved];
(n) Debt incurred under any Plan if Bonds;
(o) Debt constituting letters of credit and bank guaranties, to the extent that such letters of credit and bank guaranties are fully cash collateralized, in an aggregate principal amount not exceeding $5,100,000 at any time outstanding;
(p) Debt incurred pursuant to any unsecured note issued to a holder of an “Allowed Class 2B Claim” (as defined in the existence of such liabilities will not constitute, cause or result in a DefaultChapter 11 Plan); and
(fq) Debt of incurred to finance insurance premiums if the Borrower and its Subsidiaries to amount financed does not exceed the Trustee and premium payable for the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000current policy period.
Appears in 1 contract
Debt. The No Borrower and the Operating Subsidiaries will notshall, and will not nor shall any Borrower permit any Subsidiary of its Subsidiaries or the Borrower LS&Co. Trust to, directly or indirectly create, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to in the Lenders pursuant to the Loan Documents;case of LS&Co,
(bi) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries to LSFCC or Wholly-Owned Subsidiaries of the Borrower any Subsidiary, which Debt, if owed to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiariesany Guarantor or Limited Guarantor, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b(A) shall be unsecured, constitute Pledged Debt and (B) shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement promissory notes in form and substance satisfactory to the Administrative Agent, providedshall be subordinated in right of payment to the payment in full of the Obligations and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Agent pursuant to the terms of the Pledge and Security Agreement;
(ii) Debt of LS&Co issued in a Capital Markets Transaction provided such Debt is unsecured and such Debt does not have a stated maturity date or required principal payments earlier than six months after the Stated Termination Date;
(iii) Guarantees of LS&Co under the LS&Co. Trust Agreement, howeverPROVIDED that the investment activities of the LS&Co. Trust are in compliance with the Investment Policies; and
(iv) Guarantees of LS&Co in respect of the obligations of Guarantors or Limited Guarantors arising under or in connection with Selected Revolving Lender Cash Management Services;
(b) in the case of Subsidiaries specified in this SECTION 7.18(B),
(i) Debt owed to LS&Co by LSFCC or any Guarantor or Debt owed to any Guarantor or any Limited Guarantor by another Guarantor, which Debt (A) shall constitute Pledged Debt and (B) shall, except in the case of redeemable preferred stock, be evidenced by promissory notes in form and substance satisfactory to the Agent, shall be subordinated in right of payment in full of the Obligations, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Agent pursuant to the terms of the Pledge and Security Agreement;
(ii) Debt owed to any Limited Guarantor by any Guarantor or another Limited Guarantor;
(iii) Debt owed to any Foreign Subsidiary by any Guarantor, any Limited Guarantor or another Foreign Subsidiary;
(c) in the case of LS&Co and Subsidiaries specified in this SECTION 7.18(C),
(i) Debt of LS&Co and its Subsidiaries outstanding on the Closing Date and listed on SCHEDULE 6.9 hereto;
(ii) Debt of LS&Co and its Subsidiaries under the Loan Documents;
(iii) Debt of LS&Co and its Subsidiaries (other than LSFCC) secured by Liens permitted by SECTION 7.16(C) not to exceed in the aggregate $50,000,000 at any time outstanding;
(iv) Debt of LS&Co, LSIFCS or any Material Domestic Subsidiary in respect of Ordinary Course Hedge Agreements and consistent with prudent business practice, provided that temporary advances made from time the aggregate Hedge Termination Value of all such Ordinary Course Hedge Agreements with third parties under which LS&Co, LSIFCS or any Material Domestic Subsidiary would be required to time make a payment on termination thereof does not exceed in the aggregate $75,000,000;
(v) so long as any Minimum Condition is met, Debt of LS&Co and its Subsidiaries (other than LSFCC) to LSIFCS in the ordinary course of business and Debt of LSIFCS to LS&Co and any of its other Subsidiaries (other than LSFCC) in the ordinary course of business;
(vi) Debt of LS&Co to the Term Loan Lenders in an aggregate principal amount not to exceed $100,000 500,000,000 and Guarantees of the Guarantors and the Limited Guarantors in respect of the obligations of LS&Co arising under or in connection with the Term Loan Facility, and in each case any replacement, renewal or extension thereof permitted pursuant to SECTION 7.27;
(vii) Debt of LS&Co and its Subsidiaries (other than LSFCC) in the form of Real Estate Financing Transactions, provided the aggregate principal amount of all Debt permitted under this SECTION 7.18(C)(VII) and SECTION 7.18(C)(VIII) (including all such Debt existing on the Closing Date and listed on SCHEDULE 6.9 hereto) does not exceed in the aggregate $175,000,000 at any time outstanding;
(viii) Debt of LS&Co and its Subsidiaries (other than LSFCC) in the form of Equipment Financing Transactions, provided the aggregate principal amount of all Debt permitted under this SECTION 7.18(C)(VIII) and SECTION 7.18(C)(VII) (including all such Debt existing on the Closing Date and listed on SCHEDULE 6.9 hereto) does not exceed in the aggregate $175,000,000 at any time outstanding;
(ix) Ordinary Course Hedge Agreements between LS&Co and its Subsidiaries (other than LSFCC) and between LSIFCS and any other Subsidiaries of LS&Co (other than LSFCC) in the ordinary course of business;
(x) customary unsecured indemnification obligations and other unsecured Guarantees of LS&Co incurred in connection with any Permitted Foreign Receivables Transaction or any Foreign Inventory Transaction;
(xi) Debt of LS&Co to any of its Subsidiaries (other than LSFCC) or of any of its Subsidiaries (other than LSFCC) to any of its Subsidiaries (other than LSFCC) in connection with the purchases of inventory or raw materials in the ordinary course of business in an amount not to exceed the purchase price thereof and any related servicing fees;
(xii) Debt of LS&Co and its Subsidiaries arising from the honoring of a check, draft, wire transfer or similar instrument against insufficient funds; PROVIDED that such Debt is unsecured other than by a Lien permitted pursuant to SECTION 7.16(L) or is supported by a Letter of Credit;
(xiii) so long as any Minimum Condition is met, Debt of LS&Co to any of its Subsidiaries and Debt of any of its Subsidiaries to LS&Co or to any of its other Subsidiaries (other than LSFCC); PROVIDED, HOWEVER, that the sum, without duplication, of (1) the aggregate principal amount of all such Debt incurred after the date hereof PLUS (2) the aggregate Investments permitted by SECTION 7.17(L) PLUS (3) the aggregate dispositions permitted by SECTION 7.20(K) shall not exceed $50,000,000 in the aggregate during Fiscal Year 2003, or $100,000,000 in the aggregate during Fiscal Years 2003 and 2004, taken as a single period, or $150,000,000 in the aggregate during Fiscal Years 2003, 2004 and 2005, taken as a single period, or $200,000,000 in the aggregate during Fiscal Years 2003, 2004, 2005 and 2006, taken as a single period, or $225,000,000 in the aggregate during Fiscal Years 2003, 2004, 2005, 2006 and 2007, taken as a single period;
(xiv) Debt of LS&Co to any of its Subsidiaries and Debt of any of its Subsidiaries to LS&Co or to any of its other Subsidiaries incurred in connection with a Disposition permitted under SECTIONS 7.20(E) and 7.20(M);
(xv) Debt of any Foreign Subsidiary to any Person other than LS&Co or any of its Subsidiaries;
(xvi) in addition to the foregoing SECTIONS 7.18(C)(I)-(XV) and without duplication, Debt (other than Debt under Ordinary Course Hedge Agreements) of LS&Co and its Subsidiaries (other than LSFCC), PROVIDED that the sum, without duplication, of the aggregate principal amount of all Debt outstanding at any time under this SECTION 7.18(C)(XVI) and SECTION 7.18(C)(XVII) shall not exceed $75,000,000 at any time;
(xvii) Debt (other than Debt under Ordinary Course Hedge Agreements) of LSFCC not exceeding $10,000,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;outstanding; and
(cxviii) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12Capital Leases of LS&Co, providedLSFCC, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt any Guarantor or any Limited Guarantor not exceeding $75,000,000 in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.49
Appears in 1 contract
Samples: Credit Agreement (Levi Strauss & Co)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower toCreate, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or permit suffer to exist exist, any Debt, exceptDebt other than:
(a) In the case of the Borrowers, Debt to the Lenders incurred pursuant to the Loan Documents;
(b) intercompany Debt between or among In the Borrower and case of MediaBay, debt owed to any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred Subsidiary of MediaBay, and in the ordinary course case of business any of the Subsidiaries of MediaBay (including Radio Spirits and Audio Book Club), Debt owed to MediaBay or to x Xxxxxx-Xxxed Subsidiary of MediaBay; provided, that all such Debt owed by any Subsidiary to MediaBay shall be evidenced by a promissory note, such promissory note shall be pledged to the Administrative Agent pursuant to the terms of the Security Agreement or such other document (including, without limitation, the Note Assignment Agreement) and, in the case of Debt owed by any Subsidiary, there shall be no restrictions whatsoever on the Operating ability of such Subsidiary to repay such Debt; and
(c) In the case of the Borrowers and any of their Subsidiaries:
(i) Debt (A) secured by Liens permitted by Section 6.1(d) and (B) Capitalized Leases, collectively not to exceed in the aggregate $500,000 at any time outstanding;
(ii) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(iii) the Surviving Debt;
(iv) Senior Subordinated Debt, provided that (A) principal and interest shall be payable or paid by MediaBay only in accordance with the terms and conditions of the applicable Subordinated Debt Documents and subject to Section 6.19 hereof and (B) the Borrower may, as required by the Senior Subordinated Debt Documents, cause its existing Subsidiaries or Wholly-Owned and any Subsidiaries of the Borrower Company hereafter formed and/or acquired by the Company (or any Subsidiary of the Company) to issue guaranties of MediaBay Obligations under the Senior Subordinated Debt, which guaranties shall be substantially similar to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted Subsidiary Guaranty issued pursuant to this Section 9.1(b) shall Agreement, except that such guaranties will be unsecuredsubordinated to the Obligations of such Subsidiaries under the Subsidiary Guaranty or Guaranties issued or to be issued under this Agreement consistent with the subordination provisions set forth in the Convertible Senior Subordinated Note included in the Senior Subordinated Debt, shall will guaranty the Obligations of MediaBay under such Note and otherwise be evidenced by instruments in form and substance reasonably satisfactory to the Administrative Agent which will and the holder of such Note;
(v) Subordinated Debt, notwithstanding any other provision of this Section 6.2.
(vi) any Debt extending the maturity of, or refunding or refinancing, in whole or in part, the Debt referred to in this Section 6.2(c), provided that (A) the principal amount of such Debt shall not be pledged increased above the principal amount thereof outstanding immediately prior to the refinancing and the direct and contingent obligors shall not be changed, as a result of or in connection with such extension, refunding or refinancing, except that any Subsidiary of the Company in existence at, or formed or acquired by the Company (or any Subsidiary of the Company) subsequent to, the date of any of such extension of the maturity of, or refunding or refinancing, in whole or in part, of the Senior Subordinated Debt, shall be permitted to guarantee such Debt as so extended, refunded or refinanced, to the same extent as such Subsidiaries are permitted to guarantee such Debt pursuant to Section 6.2(c)(iv) hereof, and no prepayment premium or penalty of any kind shall be incurred in connection therewith, and the terms thereof are no less favorable to any Borrower or the Lender Parties or the Administrative Agent (except as and to the extent set forth in respect of Senior Subordinated Debt under clause (vi)(B) below) than the terms of the refunded or refinanced Debt and the fees, expenses and other costs associated therewith are reasonably acceptable to the Administrative Agent in the exercise of its reasonable discretion; (B) no amendment, modification or supplement to the terms of any Debt or any refinanced or refunded Debt shall be made except if and to the extent permitted under Section 6.13, but amendments and modifications to any replacement for the benefit Senior Subordinated Debt which are not inconsistent with the terms of Section 6.13(b) shall be deemed acceptable to the Lenders and the Administrative Agent; and (C) with respect to the first refinancing of the Administrative Agent Senior Subordinated Debt that exists on the Effective Date, the principal amount of the replacement Debt shall at least equal the sum of (i) the principal amount then outstanding of such Senior Subordinated Debt which is refinanced and (ii) the Lenders andfees, if expenses and other costs payable by MediaBay or its Subsidiaries in connection with such refinancing;
(vii) the BorrowerHuntingdon Financing Debt, provided that principal and interest shall be subordinated payable or paid by MediaBay only in accordance with the terms and conditions of the applicable Subordinated Debt Documents and subject to Section 6.20 hereof;
(viii) the Huntingdon Secured Subordinated Loan, provided that principal and interest shall be payable or paid by MediaBay only in accordance with the terms and conditions of the applicable Subordinated Debt Documents and subject to Section 6.19 hereof; and
(ix) up to $500,000 in additional senior secured indebtedness provided by Huntingdon or Norton Herrick, his family or affiliates on the same terms xxx xxxxxxxxxs applicable to the Obligations pursuant to a subordination Huntingdon Financing Debt provided that the holders of such senior secured indebtedness execute an intercreditor agreement in form and substance satisfactory to the Administrative Agent, provided, however, Lenders and provided further that temporary advances made from time to time principal and interest shall be payable or paid by MediaBay only in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than accordance with the terms and conditions of such the applicable Subordinated Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt Documents and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in subject to Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 20006.20 hereof.
Appears in 1 contract
Samples: Credit Agreement (Mediabay Inc)
Debt. The (a) Borrower and the Operating Subsidiaries will not, and will shall not permit any Subsidiary of the Borrower to, incur, create, assume or permit be liable in any manner with respect to exist any Indebtedness other than the Debt, except:
(a) Debt the Indebtedness incurred with respect to the Lenders Senior Loan, the Senior Mezzanine Loan and the Junior A Mezzanine Loan, the Permitted Debt and any Permitted Refinancing in accordance with Section 4.2.4(b). Junior B Mezzanine Guarantor shall not incur, create, assume or be liable in any manner with respect to any Indebtedness other than the Debt pursuant to its Guaranty. The Borrower Parties shall not permit any SPE Entity to incur Indebtedness except to the Loan Documents;extent permitted in Section 3.1.24 above.
(b) intercompany Debt between Borrower shall not consent to or among permit a refinancing of the Senior Loan or the Senior Mezzanine Loan unless it obtains the prior consent of Lender in its sole and absolute discretion; provided that Lender shall not withhold its consent to a refinancing of all outstanding Indebtedness under either or both the Senior Loan and Senior Mezzanine Loan if Lender determines in its good faith judgment that each of the following conditions precedent have been satisfied:
(i) No Default or Event of Default shall have occurred and be continuing;
(ii) The loan which refinances the Senior Loan (the “New Mortgage Loan”), shall satisfy each and every of the following conditions: (A) the New Mortgage Loan shall have an interest rate that is no higher than the current interest rate provided for under the Senior Loan; (B) the New Mortgage Loan shall have a principal balance that is no more than the balance of the Senior Loan on the date of the refinancing; (C) if the New Mortgage Loan provides for amortization, amortization amounts shall not be greater than that provided for under the Senior Loan; (D) the New Mortgage Loan shall have a scheduled maturity date that is no earlier than that provided for under the Senior Loan as of the Closing Date; (E) the New Mortgage Loan shall not have any provisions providing for the payment of any additional interest, fees, participating interest or other similar equity feature; (F) the New Mortgage Loan shall not have any provision in which collateral not granted for the benefit of Senior Lender or otherwise encumbered with respect to the Senior Loan as of the Closing Date is granted for the benefit of or with respect to the New Mortgage Loan; (G) the New Mortgage Loan shall not have any provision whereby the New Mortgage Loan is cross-defaulted with any other Indebtedness; (H) the New Mortgage Loan shall have reserves substantially the same as those maintained under the Senior Loan and a cash management and lockbox arrangement substantially similar to that maintained under the Senior Loan; (I) the New Mortgage Loan shall not have provisions that prohibit the prepayment of the New Mortgage Loan from and after the Permitted Prepayment Date (as defined in the Senior Loan Agreement) without the payment of a prepayment premium or penalty that is greater than the prepayment premium or penalty required under the Senior Loan Agreement; (J) the New Mortgage Loan shall contain the same exculpation clause prohibiting the new Senior Lender from obtaining any judgment against, or seeking to impose any liability on, the Borrower (with substantially the same exculpation “carve-outs”) as that set forth in the Senior Loan; (K) the New Mortgage Loan shall not have any additional events which constitute an “Event of Default” beyond those provided in the Senior Loan; and (L) the New Mortgage Loan shall not impose any greater economic burden on the Borrower or its affiliates than that provided under the Senior Loan.
(iii) The loan which refinances the Senior Mezzanine Loan (the “New Senior Mezzanine Loan”), shall satisfy each and every of the following conditions: (A) the New Senior Mezzanine Loan shall have an interest rate that is no higher than the current interest rate provided for under the Senior Mezzanine Loan; (B) the New Senior Mezzanine Loan shall have a principal balance that is no more than the balance of the Senior Mezzanine Loan on the date of the refinancing; (C) if the New Senior Mezzanine Loan provides for amortization, amortization amounts shall not be greater than that provided for under the Senior Mezzanine Loan; (D) the New Senior Mezzanine Loan shall have a scheduled maturity date that is no earlier than that provided for under the Senior Mezzanine Loan as of the Closing Date; (E) the New Senior Mezzanine Loan shall not have any provisions providing for the payment of any additional interest, fees, participating interest or other similar equity feature; (F) the New Senior Mezzanine Loan shall not have any provision in which collateral not granted for the benefit of Senior Mezzanine Lender or otherwise encumbered with respect to the Senior Mezzanine Loan as of the Closing Date is granted for the benefit of or with respect to the New Senior Mezzanine Loan; (G) the New Senior Mezzanine Loan shall not have any provision whereby the New Senior Mezzanine Loan is cross-defaulted with any other Indebtedness; (H) the New Senior Mezzanine Loan shall have reserves substantially the same as those maintained under the Senior Mezzanine Loan and a cash management and lockbox arrangement substantially similar to that maintained under the Senior Mezzanine Loan; (I) the New Senior Mezzanine Loan shall not have provisions that prohibit the prepayment of the New Senior Mezzanine Loan from and after the Permitted Prepayment Date (as defined in the Senior Mezzanine Loan Agreement) without the payment of a prepayment premium or penalty that is greater than the prepayment premium or penalty required under the Senior Mezzanine Loan Agreement; (J) the New Senior Mezzanine Loan shall contain substantially the same exculpation clause prohibiting the new Senior Mezzanine Lender from obtaining any judgment against, or seeking to impose any liability on, the Borrower (with the same exculpation “carve-outs”) as that set forth in the Senior Mezzanine Loan; (K) the New Senior Mezzanine Loan shall not have any additional events which constitute an “Event of Default” beyond those provided in the Senior Mezzanine Loan; (L) the New Senior Mezzanine Loan shall not impose any greater economic burden on the Borrower or its Operating Subsidiaries affiliates than that provided under the Senior Mezzanine Loan; and (M) no “cross-default” provision shall exist in the New Senior Mezzanine Loan which would permit an acceleration of the New Senior Mezzanine Loan upon the occurrence of any Default or Wholly-Owned Subsidiaries Event of Default under this Agreement or any other Loan Document;
(iv) the terms of the New Mortgage Loan and the New Senior Mezzanine Loan shall permit the Loan, provide the same express rights to the Lender as the Senior Loan Documents and Senior Mezzanine Loan Documents, respectively, and neither the New Mortgage Loan nor the New Senior Mezzanine Loan shall conflict with the terms of the Loan. The new Senior Lender and new Senior Mezzanine Lender shall enter into an intercreditor agreement with Lender no less favorable to Lender than the Intercreditor Agreement by and among Senior Lender and the Mezzanine Lenders of even date herewith, which intercreditor agreement shall be in all other respects acceptable to Lender in its reasonable discretion;
(v) (A) the Property may not be transferred in connection with such refinancing and (B) no direct or indirect Equity Interest at any tier in the Borrower shall be transferred in connection with such refinancing, unless otherwise permitted pursuant to Section 4.2.3 of this Agreement (provided that upon satisfaction of all the conditions set forth in this Section 4.2.4(b), the replacement Senior Mezzanine Lender may obtain pledges of the Equity Interests securing the Senior Mezzanine Loan in form and substance reasonably acceptable to Lender;
(vi) Borrower shall pay all costs and expenses of Lender incurred in the ordinary course of business (connection with any such refinancing, including, without limitation, Debt owed by reasonable fees and expenses of Lender’s counsel;
(vii) Borrower shall execute and deliver such amendments to this Agreement and the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower other Loan Documents as Lender may reasonably request in connection with loans such New Mortgage Loan and New Senior Mezzanine Loan to accommodate the New Mortgage Loan and the New Senior Mezzanine Loan and to conform to this Agreement, and (B) any document that Lender deems appropriate for purposes of proceeds ratifying the Guaranties, Pledge Agreements or other Loan Documents);
(viii) Lender shall have received at least sixty (60) days prior written notice of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any refinancing;
(ix) Lender shall have reviewed and approved all of the Debt permitted pursuant documents proposed to this Section 9.1(bbe executed or delivered in connection with the New Mortgage Loan and New Senior Mezzanine Loan, which approval shall not be unreasonably withheld or delayed;
(x) the new Senior Mezzanine Lender shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent enter into a separate intercreditor agreement with Lender and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement Junior A Mezzanine Lender in form and substance satisfactory acceptable to all parties in their good faith discretion;
(xi) Lender, at the Administrative AgentBorrower’s sole cost and expense, providedshall have received all title insurance updates and endorsements as Lender may reasonably request;
(xii) The cash management system that currently exists for the Senior Loan, howeverSenior Mezzanine Loan, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of Loan and the Borrower to the Borrower Junior A Mezzanine Loan shall not be required Modified to be so evidenced, pledged impose any additional burdens (financial or subordinated;
(cotherwise) unsecured Debt on Lender and shall contain substantially the same controls and restrictions on Borrower as currently provided under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt Senior Cash Management Agreement and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a DefaultMezzanine Cash Management Agreement; and
(fxiii) Debt If the new Senior Mezzanine Lender is not an affiliate of Lender, then (A) Lender shall have the right to approve the appointment of any new Agent under the Mezzanine Cash Management Agreement; (B) the cash management provisions in the Senior Mezzanine Loan Agreement and Mezzanine Cash Management Agreement shall be modified to provide Lender with reasonable rights to ensure that the Reserve Funds are applied for their intended purposes while addressing the reasonable operational needs of the Borrower Parties; and its Subsidiaries (C) following an Event of Default, all sums deposited in the Mezzanine Collection Account which would otherwise (absent such Event of Default) have been paid to Lender shall be applied to reduce the Trustee and principal amount of, first, the Noteholders under (and evidenced and governed by) New Senior Mezzanine Loan and, second, the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Junior A Mezzanine Loan.
Appears in 1 contract
Samples: Junior B Mezzanine Loan Agreement (Thomas Properties Group Inc)
Debt. The Except as previously and expressly consented to in writing by Agent, no Borrower and the Operating Subsidiaries will notshall, and will not permit any Subsidiary of the Borrower todirectly or indirectly, incurpermit, create, assume incur or permit to exist maintain any Debt, except:
other than (a) Debt to the Lenders pursuant to the Loan Documents;
Obligations, (b) Debt set forth on Schedule 8.6, (c) Debt evidencing intercompany loans among Borrowers and Guarantors, (d) the Subordinated Debt between or among and the Borrower Affiliate Subordinated Debt, (e) the South Carolina Notes, (f) current accounts payable, accrued expenses and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries customer advance payments incurred in the ordinary course of business business, (includingg) Debt secured by Permitted Liens; (h) Debt permitted under Paragraph 8.3, without limitation, (i) unsecured Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower in addition to the Borrower foregoing in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business an aggregate amount not to exceed $100,000 in aggregate principal amount 250,000 at any one time owing by outstanding, and (j) any Operating Subsidiary or Wholly-Owned Subsidiary Debt representing a Permitted Refinancing of the Borrower foregoing or, with respect to the Affiliate Subordinated Debt, a refinancing permitted by the Intercreditor Agreement (collectively, “Permitted Debt”). No Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt make any payments (A) in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity respect of any Subordinated Debt (except that Borrowers may make any regularly scheduled payments of principal and interest due under such Borrower’s Subordinated Debt so long as no Default or Event of Default then exists or would result therefrom and such Debt and the terms and provisions of which payments are not materially more onerous than made in accordance with the terms and conditions of any subordination agreement among the holder or holders of such Subordinated Debt, Agent and/or Lenders or the subordination provisions set forth in such Subordinated Debt documents), and (B) in respect of any Affiliate Subordinated Debt (except that Borrowers may make payments in accordance with the Intercreditor Agreement), (ii) amend, modify or rescind any provisions of any of Borrower’s (A) Subordinated Debt in such a manner as to affect adversely Agent’s liens on the Collateral or the prior position of the Notes or accelerate the date upon which any installment of principal and interest of any Subordinated Debt is due or make the covenants and obligations of the Borrowers contained in such Subordinated Debt documents materially more restrictive than those set forth in the Loan Documents as of the date of such amendment or modification, or (B) Affiliate Subordinated Debt except as permitted by the Intercreditor Agreement, or (iii) permit the prepayment or redemption of all or any part of any Subordinated Debt or any Affiliate Subordinated Debt, except (A) with respect to Subordinated Debt in connection with a Permitted Refinancing as permitted by clause (j) above and, with respect to Affiliate Subordinated Debt, in accordance with the Intercreditor Agreement, (B) in connection with a prepayment or redemption of the South Carolina Notes and other Subordinated Debt from time to time so long as no Default or Event of Default then exists or would result therefrom and such payments are made in accordance with the terms and conditions of any subordination agreement among the holder or holders of such Subordinated Debt, Agent and/or Lenders or the subordination provisions set forth in such Subordinated Debt documents, (C) in connection with a prepayment or redemption on the Closing Date of Subordinated Debt pursuant to the Stock Purchase Agreement, and (D) with respect to all of the Subordinated Debt owed to Federal Warranty as of the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet payments of all of such Debts on the requirements of clause (g) of the definition of Permitted Liens contained Closing Date in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal an amount of the Debt referred not to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 20002,038,211.17.
Appears in 1 contract
Samples: Loan and Security Agreement (Regional Management Corp.)
Debt. The Borrower Incur or permit any of its Subsidiaries to Incur any Debt other than
(i) Debt under the Loan Documents and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume or permit to exist any Debt, except:
(a) Debt to the Lenders pursuant to the Second Lien Loan Documents;
(bii) intercompany (A) Subordinated Debt between of the Loan Parties under the Third Lien Loan Documents outstanding at any time in an aggregate principal amount not to exceed $20,000,000 (exclusive of paid-in-kind interest thereon in accordance with the Third Lien Loan Documents) and (B) Subordinated Debt of the Loan Parties outstanding at any time in an aggregate principal amount not to exceed $30,000,000, in each case, on terms and conditions no less favorable to the Lenders and the Second Lien Lenders than under the Third Lien Loan Documents; provided, that (A) the maturity of such Subordinated Debt is at least twelve months following the final maturity date of the Facilities and 91 days following the final maturity date under the First Amended Second Lien Credit Agreement, (B) the Administrative Agent and the Required Lenders, and the Second Lien Agent and the Required Lenders under the Second Lien Loan Documents, are reasonably satisfied that the Parent and its Subsidiaries shall be in compliance with the provisions of the Loan Documents and the Second Lien Loan Documents, respectively, for the period from the Incurrence of such Subordinated Debt through the final maturity date of the Facilities and the final maturity date under the First Amended Second Lien Credit Agreement, and (C) the Required Lenders, and the Required Lenders under the Second Lien Loan Documents, have approved the terms of the subordination relating to such Subordinated Debt, and provided, further, that, for purposes of this clause (ii), Subordinated Debt shall not include Debt under the Second Lien Loan Documents;
(iii) Capitalized Leases (other than Surviving Debt) not to exceed in the aggregate $7,500,000;
(iv) the Surviving Debt;
(v) 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 among 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 (i) both before and after giving effect to the issuance or incurrence thereof, no Default or Event of Default shall have occurred and be continuing, (ii) the chief financial officer of Parent or the Borrower shall have delivered an officer’s certificate demonstrating pro forma compliance with the covenants set forth in Section 5.02(q) in form and substance reasonably satisfactory to the Administrative Agent, 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 its Operating Subsidiaries Debt for purposes of this proviso;
(vi) Debt of the Borrower under Hedge Agreements; provided, that such agreements (A) are designed solely to protect the Loan Parties against fluctuations in foreign currency exchange rates or Wholly-Owned Subsidiaries incurred interest rates and (B) do not increase the Debt of the obligor thereunder outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder;
(vii) Debt Incurred in connection with the repayment or refinancing of the Debt under the Loan Documents in full or, if the Debt under the Loan Documents is not repaid or refinanced in full, in such other amount and on such terms and conditions as is approved by the Required Lenders;
(viii) Debt in respect of Ordinary Course Obligations in an aggregate amount not to exceed $8,000,000 at any time outstanding; and
(ix) 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 (includingand is not the subject of an enforcement, without limitationcollection, execution, levy or foreclosure proceeding and is not duplicative of Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower Incurred pursuant to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.105.02(b)(viii). Notwithstanding any other provision under this Section 5.02(b), subject to (A) the following requirements: any and all maximum amount of Debt that the Debt permitted Parent or a Subsidiary may Incur pursuant to this Section 9.1(b5.02(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required deemed to be so evidencedexceeded with respect to any outstanding Debt, pledged or subordinated;
(c) unsecured Debt under and the Interest Rate Protection Agreements required Loan Parties shall not be deemed to be maintained by out of compliance with Section 8.125.02(q), provided, however, that Debt thereunder may be secured if such Debt constitutes solely as a part result of the Obligations;
(i) existing Debt fluctuations in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings exchange rates of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1currencies, and (iiiB) additional unsecured Debt; provided, however, that the aggregate principal amount of the any Loan Party may Incur Debt referred owed to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000other Loan Party.
Appears in 1 contract
Samples: Credit Agreement (Itc Deltacom Inc)
Debt. The Borrower and the Operating Subsidiaries Parent will notnot create or suffer to exist, and will not permit any Restricted Subsidiary of the Borrower toto create, incur, create, assume or permit suffer to exist exist, any Debt except as set forth below, all of which shall be "Permitted Debt, except":
(a) Debt of the Parent, the Borrower and the Affiliate Guarantors to the Lenders pursuant Banks and the Agent evidenced by any Loan Document;
(b) in addition to Debt otherwise permitted to be incurred by the Parent or any Restricted Subsidiary, as the case may be, by this Section 10.2, unsecured Debt of the Parent or any Restricted Subsidiary to Persons (other than the Parent or any Subsidiary) (other than the type of Debt permitted by the other subsections hereof); provided that (i) at no time shall the aggregate outstanding principal amount of all such Debt of the Parent and the Restricted Subsidiaries permitted by this Section 10.2(b) exceed U.S. $50,000,000, (ii) such Debt shall not be incurred when a Default or Event of Default exists or would result therefrom, and (iii) such Debt shall be on terms no more restrictive than those set forth in the Loan Documents;
(bc) intercompany unsecured Debt between or among of the Parent to the Borrower or to any Affiliate Guarantor, and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, unsecured Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower or any Affiliate Guarantor to the Parent, the Borrower or any other Affiliate Guarantor and unsecured Debt of any Non-Guaranteeing Restricted Subsidiary to the Parent, the Borrower or any Affiliate Guarantor and unsecured Debt of any Non-Guaranteeing Restricted Subsidiary to any other Non-Guaranteeing Restricted Subsidiary; provided that (i) in connection with loans each case the term and provisions of proceeds such Debt shall be subject to Section 10.8, (ii) any such unsecured Debt of the Loans made by Parent, the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: or any and all of the Debt permitted pursuant to this Section 9.1(b) Affiliate Guarantor shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be expressly subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative AgentAgent to the Obligations, provided(iii) any such unsecured Debt is incurred when no Default or Event of Default exists or would result therefrom, howeverand (iv) the aggregate principal amount of all Debt of the Non-Guaranteeing Restricted Subsidiaries to the Parent, the Borrower and the Affiliate Guarantors shall be subject to Section 10.5(i) and shall be evidenced by promissory notes pledged as a lien to the Agent to secure the Obligations, which shall be a first priority lien except for Liens permitted by Section 10.1(i);
(d) Capitalized Lease Obligations of the Parent or any Restricted Subsidiary; provided that temporary advances made from at no time shall the aggregate outstanding amount of Debt of the Parent and its Restricted Subsidiaries incurred pursuant to this Section 10.2(d) exceed 5% of Consolidated Net Worth, as measured on a pro forma basis at the time of each incurrence;
(e) Debt relating to Sale and Lease-Back Transactions permitted under Section 10.6(c);
(f) Debt of the Parent or any Restricted Subsidiary incurred to finance the acquisition, construction, development or improvement of any fixed or capital assets (excluding Capital Lease Obligations, Debt related to Sale and Lease-Back Transactions and Debt of the type permitted by Section 10.2(j)); provided that (i) such Debt is incurred prior to such acquisition or the commercial operations following completion of such construction, development or improvement, whichever occurs the latest, and (ii) the aggregate outstanding principal amount of all Debt incurred pursuant to this clause (f) shall not exceed 4% of Consolidated Net Worth, as measured on a pro forma basis at the time of each such incurrence;
(g) other unsecured Debt of the Parent or any Restricted Subsidiary to Persons (other than the Parent or any Subsidiary) (other than the type of Debt permitted under the other subsections hereof) provided that (i) such Debt shall not require any principal payment, repurchase, redemption or defeasance prior to (or the deposit of any payment or property or sinking fund payment in respect of), or have a maturity shorter than, two years after the Maturity Date, (ii) such Debt shall be on terms no more restrictive than those set forth in the ordinary course Loan Documents, (iii) such Debt shall not be incurred when a Default or Event of business Default exists or would result therefrom, and (iv) such Debt shall be expressly subordinated to the payment of the Obligations on terms acceptable to the Agent;
(h) Debt of the Parent under the U.S. Revolving Credit Agreement in an aggregate principal amount not to exceed U.S. $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced150,000,000, pledged or subordinated;
(c) including unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligationsguarantees thereof;
(i) existing unsecured Debt of one or more Non-Guaranteeing Restricted Subsidiaries under one or more revolving credit facilities, letter of credit facilities, bankers' acceptance facilities or similar working capital facilities in an aggregate principal amount not to exceed at any time outstanding C$10,000,000, including an unsecured guarantees thereof by the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions Parent or refinancings of any such Subsidiaries;
(j) Debt assumed in connection with an Acquisition permitted by Section 10.13; provided that (i) such Debt which do existed prior to such Acquisition and is not increase created in contemplation of or in connection with such Acquisition, (ii) the aggregate outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such all Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured permitted by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d10.2(j) shall not exceed $15,000,000 in 4% of Consolidated Net Worth, as measured on a pro forma basis at the time of each such incurrence, (iii) such Debt shall not be incurred when a Default or Event of Default exists or would result therefrom, and (iv) prior to such incurrence the Parent shall deliver to the Agent an Officer's Certificate setting forth calculations evidencing pro forma compliance with Section 10.14;
(k) Debt of the Parent incurred to finance the expansion, improvement and development of the Houston Distribution Center; provided that (i) such Debt is incurred at or prior to the commercial operations following completion of such expansion, improvement and development and (ii) the aggregate amount of Debt permitted by this clause (k) shall not exceed U.S. $30,000,000 at any time outstanding;
(el) liabilities the Hedging Obligations of the Borrower in Parent and any Restricted Subsidiary that are incurred for the purpose of fixing or hedging interest rate or currency risk with respect to any fixed or floating rate Debt that is permitted by this Agreement to be outstanding or any receivable or liability the payment of unfunded vested benefits under any Plan if and which is determined by reference to the extent a foreign currency; provided that the existence notional principal amount of any such liabilities will Hedging Obligation does not constitute, cause exceed the principal amount of the Debt or result any receivable or liability to which such Hedging Obligation relates; provided that such obligations are entered into in a Defaultthe ordinary course of business to hedge or mitigate risks to which the Parent or any Restricted Subsidiary is exposed in the conduct of its business or the management of its liabilities; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed bym) the Subordinated Guaranteesletters of credit identified on Schedule 10.2 attached hereto, without giving effect to any extension, renewal, replacement or increase to any such letter of credit; ; provided, however, in no event shall the aggregate principal amount of Debt (excluding Debt permitted by Section 10.2(a), (c), (i) and (l)) of the Non-Guaranteeing Restricted Subsidiaries exceed U.S. $2,000,000 at any one time outstanding. For purposes of this Section 10.2, any Debt (1) which is extended, renewed or refunded shall be deemed to have been incurred when extended, renewed or refunded, (2) of a Person (other than the Parent or a Restricted Subsidiary) when it becomes, or is merged into, or is consolidated with a Restricted Subsidiary or the Parent shall be deemed to have been incurred at that time, (3) which is permitted by Section 10.2(c) and which is owing to a Restricted Subsidiary when it ceases to be a Restricted Subsidiary shall be deemed to have also been incurred at that time, (4) of a Restricted Subsidiary which is owing to the Parent or any other Restricted Subsidiary shall be deemed to also have been incurred at the time the Parent or such debt may not other Restricted Subsidiary disposes of such Debt to any Person other than the Parent or a Restricted Subsidiary, and (5) which is Debt of the Parent or a Restricted Subsidiary consisting of a reimbursement obligation in respect of a letter of credit or similar instrument shall be initially deemed to be incurred (and the Holdings Senior Notes may not be when such letter of credit or similar instrument is issued) after August 1, 2000.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower to, incurIncur, create, assume or permit to exist any Debt, except:
(a) Debt existing on the Closing Date and set forth on Schedule 7.1 and any Permitted Refinancing Debt incurred to the Lenders pursuant to the Loan DocumentsRefinance such Debt;
(b) intercompany Debt between or among created hereunder and under the other Loan Documents and any Permitted Refinancing Debt incurred to Refinance such Debt;
(c) Debt of the Borrower or any Subsidiary pursuant to Swap Agreements that were entered into in the ordinary course of business and not for speculative purposes;
(d) Debt owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such Person, in each case in the ordinary course of its Operating Subsidiaries business; provided, that upon the incurrence of Debt with respect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than thirty (30) days following such incurrence;
(e) Debt of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or Wholly-Owned Subsidiaries any other Subsidiary; provided, that other than in the case of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries, (including, without limitation, i) Debt owed by of any Subsidiary that is not a Subsidiary Guarantor owing to the Operating Subsidiaries Borrower or Wholly-Owned Subsidiaries any Subsidiary Guarantor shall be subject to Section 7.4 and (ii) Debt of the Borrower to any Subsidiary and Debt of the Borrower in connection with loans of proceeds of or any Subsidiary Guarantor to any Subsidiary that is not a Subsidiary Guarantor (the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b“Subordinated Intercompany Debt”) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance on terms reasonably satisfactory to the Administrative Agent;
(f) Debt in respect of performance bonds, providedbid bonds, howeverappeal bonds, that temporary advances made surety bonds and completion guarantees and similar obligations, in each case provided in the connection with the Development or in the ordinary course of business, including those incurred to secure health, safety and environmental obligations;
(g) Debt arising from time to time 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 not to exceed $100,000 or other cash management services in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary the ordinary course of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligationsbusiness;
(i) existing Debt of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Debt assumed in connection with the acquisition of assets, which Debt in each case exists at the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings time of such acquisition, merger, consolidation or amalgamation and is not created in contemplation of such event and where such acquisition, merger, consolidation or amalgamation is permitted by this Loan Agreement and (ii) any Permitted Refinancing Debt which do not increase incurred to Refinance such Debt; provided, (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the outstanding principal amount assumption and incurrence of any Debt and any related transactions, the Borrower shall be in Pro Forma Compliance;
(i) Capital Lease Obligations, mortgage financings and other purchase money Debt incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests of any Person owning such property, and including fees and expenses incurred in connection with licenses in respect thereof) permitted under this Loan Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) after giving effect to the issuance, incurrence or assumption of such Debt, which do not shorten the maturity of any principal of such Debt Borrower shall be in Pro Forma Compliance, and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money any Permitted Refinancing Debt in respect thereof, provided that the aggregate principal amount of Debt outstanding pursuant to this Section 7.1(i) shall not, at any time prior to the Commencement of Operations of the Development, exceed $25,000,000;
(including j) Capital Lease Obligations) secured Obligations incurred by purchase money Liens, which Debt the Borrower or any Subsidiary in respect of any Sale and Liens are Lease-Back Transaction that is permitted under Section 7.3, and meet all any Permitted Refinancing Debt in respect thereof;
(k) other Debt in an aggregate principal amount outstanding not to exceed the greater of $25,000,000 and 4.0% of Consolidated Total Assets as of the requirements of clause (g) end of the definition Fiscal Quarter immediately prior to the date of Permitted Liens contained in such incurrence of Debt for which financial statements have been delivered pursuant to Section 1.1, and (iii) additional unsecured Debt6.3; provided, however, that the aggregate principal amount of the Debt referred outstanding pursuant to in this Section 9.1(d7.1(k) shall not exceed $15,000,000 in aggregate amount not, at any time outstandingprior to the Commencement of Operations of the Development, exceed $25,000,000;
(e1) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that constituting Debt, agreements to pay service fees to professionals (including architects, engineers and designers) in furtherance of and/or in connection with the existence of such liabilities will not constituteDevelopment, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries each case to the Trustee extent such agreements and the Noteholders under related payment provisions are reasonably consistent with commonly accepted industry practices (and evidenced and governed by) the Subordinated Guarantees; provided, however, provided that no such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.agreements shall give rise to Debt for borrowed money);
Appears in 1 contract
Debt. The Borrower and (a) Prior to the Operating Guarantee Release Date, no Loan Party will, nor will it permit its Subsidiaries will notto, and will not permit any Subsidiary of the Borrower tocreate, incur, create, assume or permit suffer to exist any Debt, Debt except:
(ai) (A) Debt to incurred under this Agreement, (B) Debt incurred under the Lenders pursuant to Revolving Credit Agreement, or any refinancing or replacement thereof and (C) Debt incurred under the Loan Documents2018 Term Credit Agreement, or any refinancing or replacement thereof;
(bii) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described set forth on Schedule 7.10 hereto 7.09, and renewals, extensions or refinancings of such Debt which that do not increase the outstanding principal amount thereof or change the obligors thereunder except by an amount equal to amounts paid for any accrued interest, breakage, premium, fees and expenses in connection with such refinancings;
(iii) Debt of the Parent or any Subsidiary owing to the Parent or any of its Subsidiaries, provided that (A) such DebtDebt shall not have been transferred to any Person other than the Parent or any of its Subsidiaries and (B) in the case of Debt owed by a Loan Party to a Subsidiary that is not a Loan Party, which do such Debt is subordinated in right of payment on terms acceptable to the Administrative Agent, to the extent permitted by Law and not shorten giving rise to material adverse Tax consequences to the maturity Borrower;
(iv) Guarantees of Debt permitted under this Section 7.09(a), provided that a Subsidiary that is not a Loan Party shall not Guarantee Debt that it would not have been permitted to incur under this Section 7.09(a) if it were a primary obligor thereon;
(v) Debt owed in respect of (A) any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds, provided that such Debt shall be repaid in full within 30 days of the incurrence thereof, and (B) the unreimbursed amount of any principal drafts drawn under letters of credit, provided that such drafts shall be reimbursed in full within five (5) Business Days of the applicable disbursement;
(vi) other Debt of the Loan Parties; provided that, after giving pro forma effect to the incurrence of such Debt and the terms and provisions application of the proceeds thereof, the Parent shall be in compliance with Section 7.02(a) as of the end of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 6.01(a) or 6.01(b); and
(vii) other Debt of Subsidiaries that are not materially more onerous Loan Parties in an aggregate principal amount not to exceed $100,000,000 outstanding at any time.
(b) On and after the Guarantee Release Date, no Loan Party will permit its Subsidiaries (other than the terms any Subsidiary that is a Loan Party or a Xxxxx Subsidiary) to create, incur, assume or suffer to exist any Debt except:
(i) Debt set forth on Schedule 7.09, and conditions refinancings of such Debt on that do not increase the outstanding principal amount thereof or change the obligors thereunder except by an amount equal to amounts paid for any accrued interest, breakage, premium, fees and expenses in connection with such refinancings;
(ii) Debt of any Subsidiary owing to the Parent or any of its Subsidiaries, provided that such Debt shall not have been transferred to any Person other than the Parent or any of its Subsidiaries;
(iii) Guarantees of Debt of any other Subsidiary that is not a Loan Party permitted under this Section 7.09(b), provided that a Subsidiary shall not Guarantee Debt that it would not have been permitted to incur under this Section 7.09(b) if it were a primary obligor thereon;
(iv) Debt owed in respect of (A) any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds, provided that such Debt shall be repaid in full within 30 days of the incurrence thereof, and (B) the unreimbursed amount of any drafts drawn under letters of credit; provided that such drafts shall be reimbursed in full within five (5) Business Days of the applicable disbursement;
(v) Debt of any Subsidiary (A) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Leases, provided that such Debt is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, or (B) assumed in connection with the acquisition of any fixed or capital assets, and any refinancings of such Debt that do not increase the outstanding principal amount thereof except by an amount equal to amounts paid for any accrued interest, breakage, premium, fees and expenses in connection with such refinancings;
(vi) (A) Debt of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary) after the Closing Date, incurred prior to the time such Person becomes a Subsidiary (iior is so merged or consolidated), that is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation), (B) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liensa Lien on property acquired by a Subsidiary, which incurred prior to the acquisition thereof by such Subsidiary, that is not created in contemplation of or in connection with such acquisition and (C) Debt refinancing (but not increasing the outstanding principal amount thereof, except by an amount equal to amounts paid for any accrued interest, breakage, premium, fees and expenses in connection with such refinancing) any Debt described in this clause (vi); and
(vii) any other Debt of the Subsidiaries; provided that, at the time of the creation, incurrence or assumption of such Debt and Liens are permitted under and meet after giving effect thereto, the sum, without duplication, of (A) the aggregate outstanding principal amount of all of the requirements of such Debt created, incurred, assumed, or in existence in reliance on this clause (gvii), plus (B) the aggregate outstanding principal amount of all Debt secured by Liens under Section 7.01(y), plus (C) the definition aggregate outstanding amount of Permitted Liens contained Attributable Debt under all Sale and Leaseback Transactions under Section 7.08(c) does not exceed 15% of Consolidated Net Tangible Assets; provided that, notwithstanding anything to the contrary in this Section 1.17.09(b), and (iii) additional unsecured Debt; provided, however, that in no event shall the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not of non-wholly owned Subsidiaries exceed $15,000,000 in aggregate amount 100,000,000 outstanding at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000time.
Appears in 1 contract
Samples: Term Credit Agreement (Noble Midstream Partners LP)
Debt. The No Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume shall incur or permit to exist maintain any Debt, exceptother than:
(a) Debt to the Lenders pursuant to the Loan DocumentsObligations;
(b) intercompany Debt between described on Schedule 6.9;
(c) Capital Leases of Equipment and purchase money secured Debt incurred to purchase Equipment provided that (i) Liens securing the same attach only to the Equipment acquired by the incurrence of such Debt, and (ii) the aggregate amount of such Debt (including Capital Leases) outstanding does not exceed $45,000,000 at any time;
(d) Debt evidencing a refunding, renewal or among extension of the Borrower Debt described on Schedule 6.9; provided that (i) the 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 such Debt as of the First Amendment 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 Agent or the Lenders than the original Debt;
(e) Derivative 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 for speculative purposes;
(f) Debt evidenced by the Senior Secured Notes and Refinancing Indebtedness in respect thereof in an aggregate principal amount not to exceed $165,000,000 at any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business time outstanding;
(including, without limitation, i) Intercompany Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the any Borrower to the another Borrower in connection with loans of proceeds of the Loans made and (ii) intercompany Debt owed by the a Borrower to any Subsidiary (other than a Borrower) so long as such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the intercompany Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be is subordinated to the Obligations pursuant to a subordination agreement in form and substance hereunder on terms reasonably satisfactory to the Administrative Agent;
(i) unsecured Debt in connection with Permitted Acquisitions on terms and conditions satisfactory to the Agent and (ii) secured Debt in connection with Permitted Acquisitions that is fully subordinated to the Obligations hereunder, is secured only by Property newly-acquired in connection with the related Permitted Acquisition and is otherwise on terms and conditions satisfactory to the Agent, provided, however, that temporary advances made from time in either case no such Debt shall be permitted unless no Default or Event of Default shall exist prior to time in or immediately after the ordinary course incurrence of business not any such Debt and either (A) pro forma Thirty Day Average Excess Availability immediately prior to exceed $100,000 in aggregate principal amount the incurrence of any such Debt is at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary least equal to 27.5% of the Borrower Maximum Revolver Amount and Availability on the date thereof, both before and after giving effect to the Borrower shall not be required incurrence of any such Debt, is at least equal to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part 27.5% of the Obligations;Maximum Revolver Amount or (B) the Specified Threshold Test is met; and
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewalsform of Guaranties permitted by 7.12 hereof. For purposes of clause (h) of this Section 7.13, extensions or refinancings of “pro forma” in reference to the Thirty Day Average Excess Availability test therein, shall mean that compliance with such Debt which do not increase test shall be determined giving effect to the outstanding principal amount of such Debt, which do not shorten the maturity of any principal incurrence of such Debt and the terms consummation of the related Permitted Acquisition as if they occurred on the first day of such thirty (30) day period. For purposes of clause (h) of this Section 7.13, “pro forma” in reference to the Fixed Charge Coverage Ratio as used in the Specified Threshold Test therein, shall mean that compliance with such financial covenant tests shall be determined on the basis of the financial statements and provisions of related numbers for the four consecutive fiscal quarters ending with the fiscal quarter immediately preceding the date on which are not materially more onerous than any such Debt is to be incurred and giving effect to the terms and conditions incurrence of such Debt and the consummation of the related Permitted Acquisition as if they occurred on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all first day of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of four consecutive fiscal quarters ending with such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000fiscal quarter.
Appears in 1 contract
Samples: Credit Agreement (Unifi Inc)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower its Subsidiaries (other than Non-Recourse Subsidiaries) to, incur, create, assume or permit to exist any Debt, except:
(a) Debt pursuant hereto and Debt of Borrower and its Subsidiaries to the Lenders pursuant to Revolving Loans Credit Agreement and the Loan Documents;Acquisition Loans Credit Agreement.
(b) intercompany Existing Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred identified in the ordinary course Form 10-Q of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10)quarter ended June 30, subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured1997, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of any of such Debt referred to in this Section 9.1(b) which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, ;
(iic) purchase Purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained Liens;
(d) Intercompany Debt between Borrower and any of its Subsidiaries incurred in Section 1.1, and (iii) additional unsecured Debtthe ordinary course of business or consistent with prudent business practices; provided, however, that the aggregate principal amount any and all of the Debt referred permitted pursuant to in this Section 9.1(d) shall be unsecured, and, if evidenced by instruments, shall be evidenced by instruments satisfactory to the Agent which will be pledged to the Agent for the benefit of the Banks pursuant to a security agreement in form and substance satisfactory to the Agent (except if and to the extent that such a pledge would give the holders of the Senior Notes the contract right to also obtain the benefit of such a pledge);
(e) Debt under Currency Hedge Agreements and Interest Rate Protection Agreements, provided that (i) each counterparty shall be rated in one of the two highest rating categories of Standard and Poor's Corporation or Moody's Investors Service, Inc. and (ii) the aggregate xxxxxxal amount (as to Borrower and its Subsidiaries, other than Non-Recourse Subsidiaries) of all Currency Hedge Agreements and Interest Rate Protection Agreements to which Borrower or any of its Subsidiaries is a party shall not exceed $15,000,000 in aggregate amount 10,000,000 at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of Borrower or any of its Subsidiaries incurred in the ordinary course of business in respect of performance bonds, surety bonds and appeal bonds in an aggregate principal amount (as to Borrower and its Subsidiaries Subsidiaries) not to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.exceed $5,000,000 at any time outstanding;
Appears in 1 contract
Samples: Credit Agreement (R&b Falcon Corp)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume incur or permit to exist any Debt, except:
(a) Debt evidenced by the Notes or the Facility Letter of Credit Obligations, or outstanding under any Equity-Preferred Securities (to the Lenders pursuant extent the same constitutes Debt) not in default, as well as (i) Debt of Panhandle and/or any of its Subsidiaries, so long as (A) such Debt is otherwise permitted under Section 10.03(g) and (B) after giving effect to the Loan Documentsissuance of such Debt, the ratio of Consolidated Funded Debt to Consolidated EBITDA for Panhandle and Panhandle’s Subsidiaries (excluding the Borrower and all other Subsidiaries of the Borrower for purposes of such calculation) is no greater than 5.0 to 1.00 and (ii) any loans or advances by the Borrower to Panhandle and/or any of the Borrower’s other Subsidiaries permitted under Section 10.04(b);
(b) intercompany Debt between or among of any Subsidiary to the Borrower or any other Subsidiary, except to the extent limited by the terms of Section 10.04(b), and Debt of the Borrower to any Subsidiary;
(c) Debt existing as of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred December 31, 2011 as reflected on financial statements delivered under Section 7.02(a) and refinancings thereof other than Debt that has been refinanced by the proceeds of Loans;
(d) endorsements in the ordinary course of business of negotiable instruments in the course of collection;
(including, without limitation, e) Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to or any Subsidiary representing the Borrower in connection with loans of proceeds portion of the Loans made purchase price of property acquired by the Borrower to or such Subsidiaries, the proceeds of which loans are used for the purposes Subsidiary that is secured by Liens permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt10.02(d); provided, however, that at no time may the aggregate principal amount of the such Debt referred to in this Section 9.1(doutstanding exceed thirty percent (30%) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt Consolidated Net Worth of the Borrower and its Subsidiaries as of the applicable determination date;
(f) Debt evidenced by Senior Notes;
(g) additional Debt of the Borrower, and additional Debt of Panhandle and/or any of Panhandle’s Subsidiaries (so long as such additional Debt of Panhandle and/or any of Panhandle’s Subsidiaries is otherwise permitted under Section 10.03(a)), provided that after giving effect to the Trustee and the Noteholders under issuance thereof, (and evidenced and governed byi) there shall exist no Default or Event of Default; (ii) the Subordinated Guaranteescovenants set forth in Sections 10.01(a) and 10.01(b), if then applicable, shall be satisfied on a pro forma basis; providedand (iii) (A) such Debt shall have a final maturity or mandatory redemption date, howeveras the case may be, that such debt may no earlier than the Maturity Date and shall mature or be subject to mandatory redemption or mandatory defeasance no earlier than the Maturity Date and shall not be initially subject to any mandatory redemption or “put” to the Borrower exercisable, or sinking fund or other similar mandatory principal payment provisions that require payments to be made toward principal, prior to the Maturity Date; or (B) (x) such additional Debt shall have a final maturity date prior to the Maturity Date, and (y) such additional Debt shall not exceed $350,000,000 in the aggregate plus $20,000,000 of reimbursement obligations incurred in connection with Non-Facility Letters of Credit issued by a Bank or Banks or by any other financial institution;
(h) additional Debt of Trunkline LNG Holdings or any of its Subsidiaries, so long as (i) such Debt is to Trunkline LNG Holdings and/or any of its Subsidiaries only and is not recourse in any respect to the Borrower or any other Subsidiary of the Borrower (other than Panhandle and its Subsidiaries), (ii) the proceeds of such Debt are used solely to finance capital expenditures of Trunkline LNG Holdings and/or its Subsidiaries, and (iii) after giving effect to such Debt, no Default or Event of Default shall exist;
(i) Debt arising under any Receivables Purchase and Sale Agreement; and
(j) Debt arising in connection with the Holdings Senior Notes may not be issued) after August 1, 2000Guaranty so long as the Citrus Merger has been consummated.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will not, and nor will not it permit any Subsidiary of the Borrower to, incur, ---- create, assume incur or permit suffer to exist any Debt, except:
(ai) Debt to of the Lenders pursuant to Borrower and the Guarantors under the Loan Documents;
(bii) intercompany Debt between or among in existence on the Borrower date hereof, as set forth on Schedule 3;
(iii) trade Debt incurred to acquire goods, supplies, and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries services and incurred in the ordinary course of business business;
(including, without limitation, Debt owed by the Operating Subsidiaries iv) Subordinated Indebtedness incurred either (a) to refinance all or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds a portion of the Loans made by the Borrower to such Subsidiaries, the and/or Letters of Credit as long as all proceeds of which loans are used to repay the Loans (or apply as cash collateral for outstanding Letters of Credit) or (b) to refinance Subordinated Indebtedness outstanding, provided such refinancing occurs substantially simultaneously with the purposes repayment of such outstanding Subordinated Indebtedness, and provided further, that all such Subordinated Indebtedness permitted by Section 2.10), subject under this subsection (iv) does not mature prior to the following requirements: maturity of Loans and/or Letters of Credit remaining outstanding;
(v) Debt, including contingent liabilities and medium term notes, that is pari passu with the Loans and Letters of Credit outstanding hereunder, not to ---- ----- exceed in aggregate principal amount $25,000,000 at any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory time outstanding prior to the Administrative Agent which will be pledged issuance of a Rating by either S&P or Xxxxx'x equal to BBB-/Baa3, as applicable, so long as the terms (including maturity, interest rate, covenants and events of default) of such pari passu Debt are not more favorable than those ---- ----- applicable to the Administrative Agent for the benefit of the Administrative Agent Loans and the Lenders and, if payable by Letters of Credit;
(vi) Debt under operating leases for real or personal property used in the Borrower, shall be subordinated 's business as presently conducted;
(vii) Capitalized Leases incurred subsequent to the Obligations pursuant Closing Date not to a subordination agreement exceed in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time aggregate principal amount $5,000,000;
(viii) The endorsement of negotiable instruments for deposit or collection in the ordinary course of the Borrower's business as presently conducted;
(ix) non-recourse Debt;
(x) interest rate protection agreements not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
the sum of (ea) liabilities an amount equal to 100% of the Borrower in respect unpaid principal balance of unfunded vested benefits under any Plan if all Mortgage Loans and to the extent that the existence of such liabilities will not constitute, cause or result in a Default(b) outstanding Loans hereunder; and
(fxi) Debt incurred by a Subsidiary as a result of its position as a general partner in a limited partnership which has borrowed amounts from the Borrower and its Subsidiaries pursuant to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Section 8.9(iii).
Appears in 1 contract
Debt. The Borrower Each Loan Party and the Operating Subsidiaries will Parent shall not, and will not permit any Subsidiary of the Borrower its Subsidiaries to, create, incur, create, assume or suffer or permit to exist any Debt, except:
(a) Debt to Obligations under this Agreement and the Lenders pursuant to the other Loan Documents;
(b) intercompany Debt between of the Company or among the Borrower and any of its Operating Subsidiaries or secured by Liens permitted by Section 11.2(e), and extensions, renewals and refinancings thereof; provided that the aggregate amount of all such Debt at any time outstanding shall not exceed $175,000;
(c) Debt of the Company to any domestic Wholly-Owned Subsidiaries incurred in the ordinary course Subsidiary or Debt of business (including, without limitation, Debt owed by the Operating Subsidiaries or any domestic Wholly-Owned Subsidiaries of the Borrower Subsidiary to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to Company or another domestic Wholly-Owned Subsidiary; provided that such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement demand note in form and substance satisfactory to the Administrative Agent and pledged and delivered to the Administrative Agent pursuant to the Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Company hereunder in a manner satisfactory to the Administrative Agent, provided, however, that temporary advances made from time ;
(d) Contingent Liabilities arising with respect to time customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 11.4;
(e) Contingent Liabilities of the ordinary course Company and/or its Subsidiaries in respect of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary Debt of the Company or its domestic Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinatedSubsidiaries permitted by this Section 11.1;
(cf) unsecured Hedging Obligations approved in writing by the Administrative Agent for bona fide hedging purposes and not for speculation;
(g) Debt under described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the Interest Rate Protection Agreements required principal amount thereof is not increased;
(h) the Debt to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if Repaid (so long as such Debt constitutes a part is repaid on the Closing Date with the proceeds of the ObligationsLoans hereunder);
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to be assumed in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in connection with a DefaultConvertible Note Offering; and
(fj) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Approved Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Debt.
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower toCreate, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or permit suffer to exist exist, any Debt, exceptDebt other than:
(ai) Debt to principal of and interest on the Lenders pursuant to the Loan DocumentsAccommodations;
(bii) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred trade accounts payable (including trade accounts payable in the ordinary course of business (including, without limitation, Debt owed by between and among the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent Borrowers and the Lenders andConsolidated Subsidiaries);
(iii) Capitalized Leases, if payable by the Borrower, shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount 50,000,000 at any time outstanding;
(eiv) liabilities unsecured Debt of the U.S. Borrower, which unsecured Debt ranks subordinate to or pari passu with Debt under this Agreement (including all obligations of the U.S. Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; andits Prepaid Forward Sales Agreements);
(fv) Debt that (A) exists on the date hereof and (B) if material, is described in the Information Memorandum or described on Schedule V;
(vi) purchase money debt not in excess of 90% of the value of the assets acquired;
(vii) Debt of any Person that becomes a Subsidiary of either Borrower
(viii) Debt assumed by a Borrower pursuant to its acquisition of assets of another Person if the sum of such Debt plus all other Debt of any Person secured by any of such assets acquired does not exceed 90% of the fair market value of such assets so acquired;
(ix) Debt between and among the Borrowers and their Subsidiaries that are not Dividend Restricted Subsidiaries; provided that Debt owed by the U.S. Borrower and its Subsidiaries to the Trustee Canadian Borrower or any Subsidiary of either Borrower shall be subordinated on the terms set forth on Exhibit M-1 to the "Senior Debt" as therein defined and Debt owed by the Noteholders under Canadian Borrower to any such Subsidiary shall be subordinated on the terms set forth on Exhibit M-2 to the "Senior Debt" as therein defined;
(x) tax-exempt Debt of the type described in paragraph (j) of the definition herein of "Permitted Liens" secured by Liens permitted by such paragraph (j);
(xi) secured and evidenced unsecured Project Financing Debt on properties (excluding any facilities existing as of the date hereof and governed byexcluding any and all proven and probable reserves as of the date hereof disclosed in the Information Memorandum, in each case at the Golden Giant, Battle Mountain Complex (other than the Phoenix Project) or Hollxxxx properties or any interests in any such facilities or reserves);
(xii) interest rate, foreign exchange and commodity price hedging obligations entered into in the ordinary course of business or in connection with Debt otherwise permitted by this Section 5.02(b), in each case other than for speculative purposes, and guaranties by the U.S. Borrower of such obligations of the Consolidated Subsidiaries and other Affiliates of the U.S. Borrower;
(xiii) Subordinated Guarantees; provided, however, Debt of the U.S. Borrower;
(xiv) Debt that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000constitutes Permitted Investments.
Appears in 1 contract
Debt. The Borrower and Each of the Operating Subsidiaries Loan Parties will not, and will not permit or any Subsidiary of the Borrower its Subsidiaries to, incur, create, assume or permit to exist any Debt, except:
(a) Debt of the Borrower and its Subsidiaries to the Lenders pursuant to the Loan Documents;
(b) Permitted Subordinated Debt;
(c) intercompany Debt between or among the Borrower and any of its Operating Subsidiaries or Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b9.1(c) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, and shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(cd) unsecured Debt under the arising under, created by and consisting of Interest Rate Protection Agreements required and/or Currency Hedge Agreements not to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part exceed in aggregate notional amount the aggregate principal amount of the ObligationsCommitments in effect from time to time (and, in any event, not less than the amount required by this Agreement), provided that each counter party shall be a Lender or shall be rated in one of the two highest rating categories of Standard and Poors Corporation or Moodx'x Xxxestors Service, Inc.;
(e) (i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d9.1(e) shall not exceed $15,000,000 5,000,000 in aggregate amount at any time outstanding;; and
(ef) liabilities of the Borrower Loan Parties in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000.
Appears in 1 contract
Samples: Credit Agreement (Dynamex Inc)
Debt. The Borrower and the Operating Subsidiaries will notNot, and will not permit any Subsidiary of the Borrower other MPW Company to, create, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to Obligations under this Agreement and the Lenders pursuant to the other Loan Documents;
(b) intercompany Debt between or among secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided that the Borrower and aggregate amount of all such Debt at any time outstanding shall not exceed $250,000;
(c) Debt of its Operating Subsidiaries or the Company to any domestic Wholly-Owned Subsidiaries incurred in the ordinary course Subsidiary or Debt of business (including, without limitation, Debt owed by the Operating Subsidiaries or any domestic Wholly-Owned Subsidiaries of the Borrower Subsidiary to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to Company or another domestic Wholly-Owned Subsidiary; provided that such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments a demand note in form and substance reasonably satisfactory to the Administrative Agent which will be and pledged and delivered to the Administrative Agent pursuant to the Collateral Documents as additional collateral security for the benefit of the Administrative Agent Obligations, and the Lenders and, if payable by the Borrower, obligations under such demand note shall be subordinated to the Obligations pursuant to of the Borrowers hereunder in a subordination agreement in form and substance manner reasonably satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(cd) unsecured Subordinated Debt;
(e) 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;
(f) Debt under described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the Interest Rate Protection Agreements required principal amount thereof is not increased;
(g) the Debt to be maintained by Section 8.12, provided, however, that Debt thereunder may be secured if Repaid (so long as such Debt constitutes a part is repaid on the Closing Date with the proceeds of the Obligationsinitial Loans hereunder);
(h) Contingent Liabilities arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 11.5;
(i) existing Debt up to $375,000 per annum in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Contingent Liabilities attributable to Pentagon Leases;
(j) other unsecured subordinated Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of addition to the Debt referred to listed above, in this Section 9.1(d) shall an aggregate outstanding amount not exceed $15,000,000 in aggregate amount at any time outstanding;
exceeding $250,000 (e) liabilities exclusive of the Borrower up to $375,000 per annum in respect of unfunded vested benefits under any Plan if and Contingent Liabilities attributable to the extent that the existence of such liabilities will not constitute, cause or result in a DefaultPentagon Leases); and
(fk) the Canadian Debt and any guaranty of the Borrower and its Subsidiaries to Canadian Debt by the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Borrowers.
Appears in 1 contract
Samples: Credit Agreement (MPW Industrial Services Group Inc)
Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of the Borrower to, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to the Lenders pursuant to Notes or other Obligations arising under the Loan DocumentsDocuments or any guaranty of or suretyship arrangement for the Notes or other Obligations;
(b) intercompany Debt between accounts payable and accrued expenses, liabilities or among other obligations to pay the Borrower and any deferred purchase price of its Operating Subsidiaries Property or Wholly-Owned Subsidiaries 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;
(includingc) Debt under Capital Leases not to exceed $1,000,000;
(d) Debt associated with bonds or surety obligations required by Governmental Requirements in connection with the operation of the Oil and Gas Properties;
(e) intercompany Debt between the Borrower and any Subsidiary or between Subsidiaries to the extent permitted by Section 9.05(g); provided that such Debt is not held, without limitationassigned, 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 the Operating Subsidiaries or Wholly-Owned Subsidiaries of either the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, or a Guarantor shall be subordinated to the Obligations pursuant to a subordination agreement on terms set forth in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time Guaranty Agreement;
(f) endorsements of negotiable instruments for collection in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinatedbusiness;
(cg) unsecured Debt under existing on the Interest Rate Protection Agreements required date hereof and disclosed to be maintained the Lenders on Schedule 9.02;
(h) Debt approved by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes the Required Lenders and subordinated to Borrower’s obligations to Lenders in a part of manner acceptable to the ObligationsAdministrative Agent in its sole discretion;
(i) existing other Debt not to exceed $1,000,000 in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of aggregate at any principal of such one time outstanding;
(j) Permitted Senior Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, any guarantees thereof; provided that (iii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount (or accreted value, if applicable) of all Permitted Senior Debt outstanding at any one time (without duplication, and taking into account all concurrent payments or redemptions of Permitted Senior Debt with the Debt referred proceeds of other Permitted Senior Debt, to in this Section 9.1(dthe extent otherwise permitted hereunder) shall not exceed $15,000,000 300,000,000, (ii) the Borrower shall comply with Section 8.01(r); and (iii) the Borrowing Base then in aggregate amount effect shall be adjusted to the extent required by Section 2.07(e)(iii), and the Borrower shall make any prepayment required by Section 3.04(c)(iii). Upon each such incurrence of Permitted Senior Debt, the Borrower shall be deemed to represent and warrant to the Lenders that both before and immediately after giving effect to the incurrence of such Permitted Senior Debt (and any concurrent repayment of other Permitted Senior Debt refinanced with such Permitted Senior Debt then being incurred, as the case may be, with the proceeds of such incurrence), no Event of Default shall occur and be continuing or would result therefrom;
(k) at any time outstanding;
(e) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and prior to the extent that Second Lien Discharge Date, the existence of such liabilities will not constitute, cause or result in a DefaultSecond Lien Notes; and
(fl) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders arising under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000Swap Agreements permitted under Section 9.18 hereof.
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Debt. The Borrower and the Operating Subsidiaries will not, and will not permit any Subsidiary of Neither the Borrower to(nor following the Parent MLP IPO, the Parent MLP) nor any Restricted Subsidiary will incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to the Lenders pursuant to 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;
(b) intercompany Debt between or among of the Borrower and its Restricted Subsidiaries existing on the Closing Date that is reflected in the Financial Statements or on Schedule 9.02(b), and any refinancings, renewals or extensions (but not increases) thereof;
(c) accounts payable (for the deferred purchase price of its Operating Subsidiaries Property or Wholly-Owned Subsidiaries 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;
(includingd) Debt under Capital Leases (as required to be reported on the financial statements of the Borrower pursuant to GAAP) not to exceed $5,000,000;
(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 among the Borrower, without limitationthe Parent MLP and any Restricted Subsidiary or between Restricted Subsidiaries to the extent permitted by Section 9.05(h); provided that such Debt is not held, assigned, transferred, negotiated or pledged to any Person other than the Borrower or one of the Guarantors, and, provided further, that any such Debt owed by the Operating Subsidiaries or Wholly-Owned Subsidiaries of either the Borrower to the Borrower in connection with loans of proceeds of the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and, if payable by the Borrower, or a Guarantor shall be subordinated to the Obligations pursuant to a subordination agreement Indebtedness on terms set forth in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time Guarantee Agreement;
(g) endorsements of negotiable instruments for collection in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinatedbusiness;
(ch) unsecured purchase money Debt in respect of property acquired by the Borrower (or following the Parent MLP IPO, the Parent MLP) and its Restricted Subsidiaries; provided that the aggregate principal or face amount of all Debt secured under the Interest Rate Protection Agreements required to be maintained by this Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes a part of the Obligations9.02(h) shall not exceed $5,000,000 at any time;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Subordinate Debt; provided, howeverthat contemporaneously with any issuance or incurrence thereof (i) the Borrowing Base shall be automatically reduced pursuant to and in accordance with Section 2.08(f) and (ii) the Borrower shall make any mandatory prepayment required by Section 2.07(b)(iii), that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstandingif applicable;
(ej) liabilities Permitted Senior Debt; provided, that immediately prior to the issuance or incurrence thereof the Mortgaged Properties shall have a PV9% of not less than the required Minimum Collateral Value; provided further, contemporaneously with any issuance or incurrence thereof (i) the Borrowing Base shall be automatically reduced pursuant to and in accordance with Section 2.08(f) and (ii) the Borrower shall make any mandatory prepayment required by Section 2.07(b)(iii), if applicable;
(k) other Debt not to exceed $10,000,000 in respect of unfunded vested benefits under the aggregate at any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Defaultone time outstanding; and
(f) Debt of the Borrower and its Subsidiaries to the Trustee and the Noteholders under (and evidenced and governed byl) the Subordinated Guarantees; Preferred Stock. provided, howeverhowever that notwithstanding the forgoing, no Designated Borrowing Base Entity that such debt is not a Guarantor may not be initially incurred incur, create, assume or suffer to exist any Debt other than Debt under Sections 9.02(a), (c), (e) and the Holdings Senior Notes may not be issued) after August 1, 2000(g).
Appears in 1 contract
Debt. The Borrower and the Operating Subsidiaries will notNot, and will not permit any Subsidiary of the Borrower other Loan Party to, create, incur, create, assume or permit suffer to exist any Debt, except:
(a) Debt to Obligations under this Agreement and the Lenders pursuant to the other Loan Documents;
(b) intercompany Debt, including Acquired Debt, consisting of Capitalized Leases and/or secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided that the aggregate amount of all such Debt between or among and Capitalized Rentals at any time outstanding shall not exceed $10,000,000;
(c) Debt of the Borrower and Company to any of its Operating Subsidiaries or domestic Wholly-Owned Subsidiaries incurred in the ordinary course Subsidiary or Debt of business (including, without limitation, Debt owed by the Operating Subsidiaries or any domestic Wholly-Owned Subsidiaries of the Borrower Subsidiary to the Borrower in connection with loans Company or another domestic Wholly-Owned Subsidiary; provided that, upon the request of proceeds of the Loans made by the Borrower to Administrative Agent, such Subsidiaries, the proceeds of which loans are used for the purposes permitted by Section 2.10), subject to the following requirements: any and all of the Debt permitted pursuant to this Section 9.1(b) shall be unsecured, shall be evidenced by instruments a demand note in form and substance reasonably satisfactory to the Administrative Agent which will be and pledged and delivered to the Administrative Agent pursuant to the Collateral Documents as additional collateral security for the benefit of the Administrative Agent Obligations, and the Lenders and, if payable by the Borrower, obligations under such demand note shall be subordinated to the Obligations pursuant to of the Company hereunder in a subordination agreement in form and substance manner reasonably satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Operating Subsidiary or Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(cd) unsecured Debt under the Interest Rate Protection Agreements required to be maintained Hedging Obligations approved by Section 8.12, provided, however, that Debt thereunder may be secured if such Debt constitutes Administrative Agent and incurred in favor of a part of the Obligations;
(i) existing Debt in the principal amounts Lender or an Affiliate thereof for bona fide hedging purposes and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Closing Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of clause (g) of the definition of Permitted Liens contained in Section 1.1, and (iii) additional unsecured Debt; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed $15,000,000 in aggregate amount at any time outstandingfor speculation;
(e) liabilities Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased in excess of the Borrower amount set forth on such Schedule;
(f) the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder);
(g) Contingent Liabilities arising with respect to customary indemnification obligations in respect favor of unfunded vested benefits sellers in connection with Acquisitions permitted under any Plan if Section 11.4 and to the extent that the existence of such liabilities will not constitute, cause or result purchasers in a Defaultconnection with dispositions permitted under Section 11.4;
(h) Subordinated Debt; and
(fi) Other unsecured Debt, including Acquired Debt, in addition to that referred to elsewhere in this Section 11.1 incurred by a Loan Party; provided that the aggregate outstanding amount of all Debt of incurred by the Borrower and its Subsidiaries Loan Parties pursuant to this clause (i) shall not at any time exceed $1,000,000 in the Trustee and the Noteholders under (and evidenced and governed by) the Subordinated Guarantees; provided, however, that such debt may not be initially incurred (and the Holdings Senior Notes may not be issued) after August 1, 2000aggregate.
Appears in 1 contract
