Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that no other member of the Group will) incur (or agree to incur) or have outstanding any Financial Indebtedness. (b) Paragraph (a) above does not apply to: (i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees); (ii) Financial Indebtedness arising under the Finance Documents; (iii) any Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if: (A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company; (B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group; (iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging); (v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility; (vi) Permitted Existing Financial Indebtedness; (vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that: (A) any such bond issued is unsecured; (B) any such bond ranks pari passu with, or subordinated to the Facilities; and (C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and (viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies).
Appears in 4 contracts
Samples: Facility Agreement (Marine Harvest ASA), Facility Agreement (Marine Harvest ASA), Facility Agreement (Marine Harvest ASA)
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure procure that no other member of the Bank Group will) incur (shall), without the prior written consent of an Instructing Group, incur, create or agree permit to incur) subsist or have outstanding any Financial Indebtedness.Indebtedness other than:
(a) Financial Indebtedness arising under or pursuant to the Relevant Finance Documents including under any Additional Facility (provided that the incurrence of any Financial Indebtedness under any such Additional Facility is not prohibited by this Agreement at the time of such incurrence and complies with the requirements of Clause 2.6 (Additional Facility));
(b) Paragraph Existing Financial Indebtedness provided that the Existing Senior Credit Facilities Agreement shall be repaid in full immediately upon the making of the first Advance under this Agreement;
(ac) above Financial Indebtedness arising in respect of:
(i) the Existing High Yield Notes, including the existing subordinated unsecured guarantees given by the Company and Intermediate Holdco in respect thereof;
(ii) any Additional High Yield Notes, including any subordinated unsecured guarantee granted by the Company and/or Intermediate Holdco in respect thereof in accordance with paragraph (e) of the definition of Additional High Yield Notes, provided that no Default or Event of Default is outstanding or occurs as a result of the issuance of such Additional High Yield Notes;
(iii) any High Yield Refinancing, including any subordinated unsecured guarantee granted by the Company and/or Intermediate Holdco in respect thereof in accordance with paragraph (e) of the definition of High Yield Refinancing, provided that no Default or Event of Default is outstanding or occurs as a result of such High Yield Refinancing; and
(iv) any Senior Secured Notes and any guarantee in respect thereof given by any member of the Bank Group that is an Obligor;
(d) Financial Indebtedness of any member of the Bank Group falling within, and permitted by Clause 25.3 (Loans and Guarantees);
(e) Financial Indebtedness arising under any Hedging Agreements permitted under Clause 25.12 (Limitations on Hedging);
(f) Financial Indebtedness arising in relation to either an Asset Passthrough or a Funding Passthrough;
(g) Financial Indebtedness of any company which became or becomes a member of the Bank Group after the Original Execution Date, where such Financial Indebtedness arose prior to the date on which such company became or becomes a member of the Bank Group; if:
(i) such Financial Indebtedness was not created in contemplation of the acquisition of such company;
(ii) the aggregate principal amount of all of the Financial Indebtedness assumed in reliance on this paragraph (g) either (A) does not apply to:exceed £85 million (or its equivalent in other currencies) outstanding at any time or (B) to the extent such Financial Indebtedness does exceed £85 million, an amount equal to such excess is repaid promptly thereafter;
(h) Financial Indebtedness arising in respect of any guarantee given by the Company or Intermediate Holdco in respect of the relevant borrower’s obligations under any Parent Debt, provided that any such guarantee is given on a subordinated unsecured basis and is subject to the terms of the HYD Intercreditor Agreement, the Group Intercreditor Agreement or any other applicable intercreditor agreement in form satisfactory to the Facility Agent;
(i) Financial Indebtedness referred which constitutes Subordinated Funding provided that each Obligor that is a debtor in respect of Subordinated Funding shall (and the Company shall procure that each member of the Bank Group that is a debtor in respect of Subordinated Funding shall) procure that the relevant creditor of such Subordinated Funding, to the extent not already a party at the relevant time, accedes to the Group Intercreditor Agreement and the HYD Intercreditor Agreement, as appropriate, in paragraph (b) such capacity, upon the granting of Clause 23.6 (Loans and guarantees)such Subordinated Funding;
(iij) Financial Indebtedness arising under the (i) Finance Documents;
Leases (ii) sale and leaseback arrangements or (iii) any Financial Indebtedness of a company which becomes a member of the Group after the date of this AgreementVendor Financing Arrangements, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guaranteethat such Finance Leases, bond arrangements and/or Vendor Financing Arrangements (x) comprise Existing Vendor Financing Arrangements or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance any refinancing or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu withrollover thereof, or subordinated to (y) comprise Finance Leases, arrangements and/or Vendor Financing Arrangements entered into after the Facilities; and
Original Execution Date, provided that in the case of clauses (Cx) and (y) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group thereof does not at any time exceed [***] the greater of (I) £250 million plus the principal amount of such Finance Leases, sale and leaseback arrangements and Vendor Financing Arrangements outstanding on the Original Execution Date and (II) the amount that could be incurred so that the ratio of Consolidated Senior Net Debt to Consolidated Operating Cashflow (giving pro forma effect to any such Financial Indebtedness and the use of proceeds thereof) is equal to, or less than, 3.00:1.00 (rounded to the second decimal number); and provided further that, in each case, the relevant lessor or provider of Vendor Financing Arrangements does not have the benefit of any Encumbrance other than over the assets the subject of such Vendor Financing Arrangements and/or Finance Leases;
(k) Financial Indebtedness relating to deferral of PAYE taxes with the agreement of H.M. Revenue & Customs by any member of the Bank Group;
(l) Financial Indebtedness arising in respect of Existing Performance Bonds or any performance bond, guarantee, standby letter of credit or similar facility entered into by any member of the Bank Group to the extent that cash is deposited as security for the obligations of such member of the Bank Group thereunder;
(m) Financial Indebtedness not falling within paragraphs (a) to (l) above of any members of the Bank Group provided that the aggregate amount of such Financial Indebtedness outstanding at any time, does not exceed £330 million (or its equivalent in another currency other currencies) and further provided that in the case of any Financial Indebtedness constituted by an overdraft facility which operates on a gross/net basis, only the net amount of such facility shall count towards such aggregate amount;
(n) Financial Indebtedness of any Asset Securitisation Subsidiary incurred solely to finance any asset securitisation programme or currenciesprogrammes or one or more receivables factoring transactions otherwise permitted by Clause 25.6(j) (Disposals);
(o) Financial Indebtedness arising under tax-related financings designated in good faith as such by prior written notice from the Company to the Facility Agent, provided that the aggregate principal amount of such Financial Indebtedness outstanding at any time does not exceed £500 million; and
(p) Financial Indebtedness of any Obligor, provided that the pro forma Leverage Ratio (after giving effect to the incurrence of any such Financial Indebtedness pursuant to this paragraph (p) and the use of proceeds thereof and giving pro forma effect to any movement of cash out of the Bank Group since such date pursuant to Clause 25.5 (Dividends, Distributions and Share Capital) and any Permitted Payments) on the Quarter Date prior to any such incurrence would not exceed a ratio equal to the Leverage Ratio set out in column X of the Ratio Table in Clause 23.2(c) (Ratios) for the Quarter Date following the date of any such incurrence and, provided further that such Financial Indebtedness is subject to the terms of the HYD Intercreditor Agreement and the Group Intercreditor Agreement, or a Supplemental HYD Intercreditor Agreement as applicable.
Appears in 3 contracts
Samples: Senior Facilities Agreement (VMWH LTD), Senior Facilities Agreement (Virgin Media Inc.), Senior Facilities Agreement (Virgin Media Inc.)
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure procure that no other member of the Bank Group will) incur (shall), without the prior written consent of an Instructing Group incur, create or agree permit to incur) subsist or have outstanding any Financial Indebtedness.Indebtedness or enter into any agreement or arrangement whereby it is entitled to incur, create or permit to subsist any Financial Indebtedness other than in either case:
(a) Financial Indebtedness arising under or pursuant to the Finance Documents (including in respect of any outstanding Documentary Credit and arising in respect of any Alternative Baseball Financing) and under or pursuant to the Bridge Finance Documents;
(b) Paragraph Existing Financial Indebtedness provided that the Existing Credit Facilities shall be repaid in full immediately upon the making of the first Advance under this Agreement;
(ac) above does not apply toFinancial Indebtedness arising in respect of:
(i) Financial Indebtedness referred to the Existing High Yield Notes and the subordinated unsecured guarantee given by the Company in paragraph (b) of Clause 23.6 (Loans and guarantees)respect thereof;
(ii) Financial Indebtedness arising under the Finance DocumentsNew High Yield Notes and any subordinated unsecured guarantee granted by the Company in respect of such New High Yield Notes provided that the New High Yield Notes and such guarantee will be subject to the provisions of the HYD Intercreditor Agreement;
(iii) any High Yield Refinancing and any guarantee given by any member of the Bank Group in respect thereof, provided that such guarantee is given on a subordinated unsecured basis and is subject to the terms of the HYD Intercreditor Agreement or given on subordination terms consistent with those contained in the HYD Intercreditor Agreement;
(d) Financial Indebtedness of any member of the Bank Group falling within, and permitted by Clause 25.3 (Loans and Guarantees);
(e) Financial Indebtedness arising under any Hedging Agreements permitted under Clause 25.12 (Limitations on Hedging);
(f) Financial Indebtedness arising in relation to either an Asset Passthrough or a Funding Passthrough;
(g) Financial Indebtedness of any company which became or becomes a member of the Bank Group after the date of this AgreementOriginal Execution Date, where the such Financial Indebtedness is incurred arose prior to the date on which that such company became or becomes a member of the Group Bank Group; if:
(Ai) the such Financial Indebtedness was not incurred created in contemplation of the acquisition of that such company;
(Bii) the aggregate principal amount of all of the Financial Indebtedness assumed in reliance on this paragraph (g) either (1) does not exceed £85 million (or its equivalent in other currencies) outstanding at any time or (2) to the extent such Financial Indebtedness does exceed £85 million, an amount equal to such excess is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Grouprepaid promptly thereafter;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(viih) Financial Indebtedness arising from in respect of any guarantee given by the issuance Company or issuances TCN or any other member of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] the Bank Group in respect of the relevant borrower’s obligations under any Parent Debt (“Guaranteed Parent Debt”), provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(Ci) the proceeds of such Guaranteed Parent Debt are applied contributed into the Bank Group in accordance with Clause 9.5 24.15 (Capital Market Issue ProceedsContributions to the Bank Group) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs applied either (i) to (vi) above, the aggregate outstanding principal amount of which across towards the Group does not at Business or in a business whose primary operations are directly related to the Group Business or (ii) towards the refinancing of any time exceed [***] (or its equivalent in another currency or currencies).outstanding Indebtedness of the Bank Group; and
Appears in 3 contracts
Samples: Senior Facilities Agreement (Virgin Media Investment Holdings LTD), Senior Facilities Agreement (Virgin Media Inc.), Senior Facilities Agreement (Virgin Media Investment Holdings LTD)
Financial Indebtedness. (a) No Obligor The Borrower shall (and the Company shall ensure that no other member of the Group will) not incur (or agree to incur) or have outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:to any Financial Indebtedness listed below (Permitted Financial Indebtedness):
(i) Financial Indebtedness referred incurred under, or that is expressly contemplated by, any Finance Document, Time Charter Party Agreement, or management agreement relating to in paragraph (b) of Clause 23.6 (Loans and guarantees)a Vessel;
(ii) Financial Indebtedness arising incurred under the Finance Documentsany hedging arrangement entered into by any Obligor;
(iii) any bond, performance bond, letter of credit, guarantee or other assurance against loss (and any corresponding indemnity or reimbursement obligation) issued by or on behalf of the Borrower in the ordinary course of its business;
(iv) subject to paragraph (c), Financial Indebtedness of incurred either (A) with another Obligor; or (B) on a company which becomes subordinated basis with a member direct or indirect shareholder or equity holder of the Group after the date of this AgreementBorrower;
(v) subject to paragraph (c), where the Financial Indebtedness incurred as a result of, or in connection with, the acquisition of any vessel (the Relevant Asset) or the acquisition of any Subsidiary which owns, or is incurred established to own, a Relevant Asset (the Relevant Subsidiary), provided that prior to incurring such Financial Indebtedness (the date on which that company becomes Relevant Indebtedness), the Borrower has provided a member of certificate (signed by a director or officer) addressed to the Group ifFacility Agent:
(A) confirming that the amount of Relevant Indebtedness, when aggregated with any existing Financial Indebtedness was not incurred in contemplation relating to the Relevant Asset or the Relevant Subsidiary (as applicable) is no greater than 90% of the acquisition of that company;purchase price paid by the Borrower for the Relevant Asset or the shares or equivalent equity interest in in the Relevant Subsidiary (as applicable); and
(B) setting out in reasonable detail the Financial Indebtedness calculations upon which the Borrower is repaid, prepaid or cancelled making the confirmation referred to in full within [***] of that company becoming a member of the Group;
paragraph (iv) any Financial Indebtedness permitted under Clause 23.19 (HedgingA);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing subject to paragraph (c), Financial Indebtedness (the Refinancing Indebtedness) incurred as a result of, or in connection with, the refinancing of any existing Financial Indebtedness relating to any vessel owned by any Subsidiary of the Borrower, other than a Guarantor, (the Applicable Asset), (including any refinancing of any Financial Indebtedness under any facility or document entered into in accordance with paragraph (b)(v)), provided that prior to incurring such Financial Indebtedness;, the Borrower has provided a certificate (signed by a director or officer) addressed to the Facility Agent:
(A) confirming that the amount of Refinancing Indebtedness, when aggregated with any existing Financial Indebtedness relating to the Applicable Asset, is no greater than 90% of the value of the Applicable Asset (to be determined by reference to valuations of the Applicable Asset to be obtained at or about the time of financial close of the Refinancing Indebtedness); and
(B) setting out in reasonable detail the calculations upon which the Borrower is making the confirmation referred to in paragraph (A); or
(vii) Financial Indebtedness arising from incurred with the issuance or issuances prior written consent of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:the Facility Agent.
(Ac) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to In the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application case of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within incurred pursuant to paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs b)(iv), (hb)(v) or (jb)(vi) the claims of the definition Facility Agent under this Agreement will at all times rank at least pari passu with the claims of any unsecured and unsubordinated creditors in relation to such Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) save to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies)extent that such claims are mandatorily preferred by law applying to companies generally.
Appears in 3 contracts
Samples: Facility Agreement, Facility Agreement (Teekay Corp), Facility Agreement (Teekay LNG Partners L.P.)
Financial Indebtedness. (a) No Obligor shall (and the Company Borrower shall ensure that no other member of the Borrower Group will) incur (or agree to incur) or have outstanding any Financial IndebtednessIndebtedness or any Designated RPS.
(b) Paragraph (a) above does not apply to:
(i) up to the first Utilisation Date, Financial Indebtedness referred to in paragraph (b) respect of Clause 23.6 (Loans and guarantees)the Existing Facilities;
(ii) any Financial Indebtedness arising under the Finance Documents;
(iii) any Financial Indebtedness of a company which becomes a Internal Subordinated Debt (including any Guarantee in respect thereof issued by any member of the Borrower Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a constitutes Internal Subordinated Debt) and any External Subordinated Debt (including any Guarantee in respect thereof issued by any member of the Borrower Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Groupwhich constitutes External Subordinated Debt);
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) Designated RPS issued by any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) member of the definition of Financial Indebtedness) Borrower Group (provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does all such Designated RPS, without double counting, shall not at any one time exceed [***] S$1,000,000,000 (or its equivalent in another currency or currencies));
(v) any Incremental Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Incremental Indebtedness (provided the aggregate outstanding principal amount of (A) all such Incremental Indebtedness and Guarantees, without double counting and (B) the amount of Facility C Loans then outstanding, shall not at any one time exceed S$1,000,000,000 (or its equivalent in another currency or currencies));
(vi) any Mezzanine Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Mezzanine Indebtedness (provided the aggregate outstanding principal amount of all such Mezzanine Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$1,000,000,000 (or its equivalent in another currency or currencies));
(vii) any Permitted Aircraft/Watercraft Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Permitted Aircraft/Watercraft Indebtedness (provided the aggregate outstanding principal amount of all such Permitted Aircraft/Watercraft Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$300,000,000 (or its equivalent in another currency or currencies));
(viii) any Permitted FF&E Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Permitted FF&E Indebtedness (provided the aggregate outstanding principal amount of all such Permitted FF&E Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$500,000,000 (or its equivalent in another currency or currencies));
(ix) any Purchase Money Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Purchase Money Indebtedness (provided the aggregate outstanding principal amount of all such Purchase Money Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$30,000,000 (or its equivalent in another currency or currencies));
(x) any Permitted Refinancing Indebtedness or RP/CP Hivedown Refinancing Indebtedness;
(xi) any Financial Indebtedness owed by any member of the Borrower Group to another member of the Borrower Group;
(xii) to the extent that such incurrence does not result in the incurrence by any member of the Borrower Group of any obligation for the payment of Financial Indebtedness of others (other than other members of the Borrower Group), any Financial Indebtedness of a member of the Borrower Group incurred solely in respect of:
(A) performance bonds, completion guarantees, standby letters of credit or bankers’ acceptances, letters of credit in order to provide security for workers’ compensation claims, payment obligations in connection with self insurance or similar requirements, surety and similar bonds and statutory claims of lessors, licensees, contractors, franchisees or customers in each case to the extent the Financial Indebtedness in respect of such facilities are on terms more favourable than those under the Ancillary Facilities; and
(B) bonds securing the performance of judgments or a stay of process in proceedings to enforce a contested liability or in connection with any order or decree in any legal proceeding, provided that such Financial Indebtedness described in this sub-paragraph (xii) was incurred in the ordinary course of business of the member of the Borrower Group and the aggregate principal amount outstanding of all such Financial Indebtedness pursuant to this sub-paragraph (xii) does not at any one time exceed S$120,000,000 (or its equivalent in another currency or currencies);
(xiii) any Financial Indebtedness arising from any agreement entered into by any member of the Borrower Group providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred or assumed in connection with a sale, lease, license, transfer or other disposition of any asset permitted pursuant to paragraph (c) of Clause 22.5 (Disposals);
(xiv) any Financial Indebtedness in respect of derivative transactions entered into pursuant to Clause 22.8 (Hedging);
(xv) any Financial Indebtedness permitted by paragraph (b) of Clause 22.7 (Loans and guarantees);
(xvi) investments permitted pursuant to paragraph (b) of Clause 22.15 (Acquisitions and investments) to the extent they constitute Financial Indebtedness;
(xvii) any Financial Indebtedness of any member of the Borrower Group, to the extent constituting or covered by a guarantee, bond, letter of credit or other instrument issued under any Ancillary Facility; and
(xviii) any Financial Indebtedness existing on the original date of this Agreement and listed in Schedule 12 (Existing Indebtedness), and any replacement, renewal, refinancing, refunding or extension of that Financial Indebtedness in whole or in part by the member of the Borrower Group that originally incurred such Financial Indebtedness except to the extent the principal amount of that Financial Indebtedness exceeds the amount stated in that Schedule.
(c) For the avoidance of doubt, nothing in paragraph (a) above shall prohibit the establishment by any member of the Borrower Group (whether as issuer or guarantor) of a medium term note programme (an “MTN Programme”) provided that the incurrence by a member of the Borrower Group of any Financial Indebtedness under any MTN Programme shall be subject to the provisions of this Clause 22.6.
Appears in 2 contracts
Samples: Facility Agreement (Las Vegas Sands Corp), Second Amendment and Restatement Agreement (Las Vegas Sands Corp)
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that Except as provided below, no other member of the Restricted Group will) may incur (or agree permit to incur) or have be outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising incurred under the Finance Documents;
(iiiii) any Financial Indebtedness of a company which becomes derivative transaction entered into by a member of the Restricted Group after for the date purposes of this Agreement, where the Financial Indebtedness is incurred prior to the date protection against fluctuation in any rate or price for risk hedging purposes and not on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that companyspeculative basis;
(Biii) the unsecured Financial Indebtedness is repaidof HWDC pursuant to an indemnity agreement in favour of Montreal Trust Company of Canada dated 31 January 2003, prepaid or cancelled in full within [***] of that company becoming a member of the Groupprincipal amount not exceeding CA$8,000,000;
(iv) any Financial Indebtedness permitted of 6019838 Canada Inc. pursuant to an assumption of obligations under Clause 23.19 (Hedging)a loan agreement dated 31 January 2003 with Montreal Trust Company of Canada, in a principal amount not exceeding CA$8,000,000;
(v) any Financial Indebtedness of HW International under a loan agreement dated 12 July 2007 owed to the extent covered by ADB in a guarantee, bond or letter of credit issued under an Ancillary Facilityprincipal amount not exceeding US$45,000,000;
(vi) Permitted Existing Financial Indebtedness(without double-counting) any guarantee or indemnity in respect of the foregoing paragraphs (iii), (iv) and (v) and the following paragraph (x) permitted under Clause 22.14(b)(v) (Loans, Guarantees and Contingent Liabilities);
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
any loan (A) between an Obligor and any such bond issued is unsecured;
other Obligor, or (B) any such bond ranks pari passu with, or subordinated to between a member of the Facilities; and
(C) Restricted Group that is not an Obligor and another member of the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); andRestricted Group that is not an Obligor;
(viii) any loan between an Obligor and a member of the Restricted Group who is not an Obligor which is set out in Schedule 12 hereto, provided that the principal amount of any such loan shall not at any time exceed the amount shown in that Schedule;
(ix) any renewal or refinancing of any of the Financial Indebtedness (other than falling within permitted under this paragraph (g) b), provided that the principal amount of the definition indebtedness borrowed or raised under that renewal or refinancing does not exceed the relevant limit set out above of the existing Financial IndebtednessIndebtedness that is being renewed or refinanced; or
(x) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) incurred by a member of the definition Restricted Group, the total principal amount of which (when aggregated with the total principal amount of all other Financial Indebtedness shall only be counted once for this purpose) not falling within of each member of the Restricted Group other than that permitted under paragraphs (i) to (viix) above, the aggregate outstanding principal amount of which across the Group ) does not at any time exceed [***] US$100,000,000 (or its equivalent in another currency or currencies).
(c) For the avoidance of doubt, any offering of common shares by HWDC will not constitute Financial Indebtedness and will therefore not count towards the US$100,000,000 (or its equivalent in another currency or currencies) threshold amount set out in this Clause 22.7(b)(x) above, and the distribution of monies raised by way of any such offering of common shares by HWDC throughout the Group is not restricted by this Agreement.
Appears in 2 contracts
Samples: Loan Agreement (Harry Winston Diamond Corp), Facility Agreement (Harry Winston Diamond Corp)
Financial Indebtedness. (a) No Obligor (other than Holdco) shall (and the Company Obligors shall ensure that no other member of the Group will) incur (or agree allow to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) above . This restriction does not apply to:
(i) to the following items of Financial Indebtedness referred to (in paragraph (b) of Clause 23.6 (Loans and guarantees);each case, a Permitted Financial Indebtedness):
(ii) 22.5.1 any Financial Indebtedness arising incurred under the Finance Documents;
(iii) 22.5.2 any Financial Indebtedness arising under a Permitted Loan, a Permitted Guarantee or a Permitted Treasury Transaction;
22.5.3 any Financial Indebtedness of a company which becomes any person acquired by a member of the Group after the Signature Date which is incurred under arrangements in existence at the date of this Agreementacquisition, where but not incurred or increased or its maturity date extended in contemplation of, or since, that acquisition, and outstanding only for a period of 3 months following the date of acquisition;
22.5.4 Financial Indebtedness under a finance or capital lease, instalment credit agreement, retention of title, hire purchase or conditional sale arrangement or arrangements having a similar effect in respect of vehicles, plant, equipment or computers, provided that the aggregate capital value of all items so acquired under outstanding leases, instalment credit agreements, retention of title, hire purchase or conditional sale arrangements or arrangements having a similar effect, by members of the Group, does not exceed an amount of R50,000,000 (or its equivalent in any other currency) at any time;
22.5.5 any Financial Indebtedness under any operating lease for land, buildings or any movable assets which is incurred prior entered into in the ordinary course of business and is classified as a finance lease under IFRS;
22.5.6 any Financial Indebtedness arising under unsecured general or short term banking facilities provided to the date on which that company becomes a member of the Group if:
(A) by another bank or financial institution, provided that the maximum aggregate amount of Financial Indebtedness was under this Clause 22.5.6 does not incurred exceed R500,000,000 (or its equivalent in contemplation any other currency) at any time;
22.5.7 any Financial Indebtedness in respect of any loans advanced to the Borrower by Holdco, on the condition that the claims of Holdco against the Borrower are subordinated to the claims of the acquisition of that companyFinance Parties under the Finance Documents, either under the Subordination Agreement or otherwise on terms acceptable to the Facility Agent;
(B) the 22.5.8 any Financial Indebtedness is repaid, prepaid or cancelled expressly permitted in full within [***] writing by the Facility Agent; or
22.5.9 any Financial Indebtedness of that company becoming a any member of the Group;
(iv) any Group not otherwise permitted by this Clause above, provided that the aggregate Financial Indebtedness of all members of the Group permitted under Clauses 22.5.2 to 22.5.9 (inclusive) (when taken together, at any applicable time, with the aggregate actual or contingent liability under all outstanding guarantees which are permitted under Clause 23.19 22.12.2 to 22.12.10 (HedgingThird party guarantees) (inclusive);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] R600,000,000 (or its equivalent in another currency or currenciesany other currency).
Appears in 2 contracts
Samples: Common Terms Agreement (Net 1 Ueps Technologies Inc), Common Terms Agreement (Net 1 Ueps Technologies Inc)
Financial Indebtedness. (a) No Obligor (other than Holdco) shall (and the Company Obligors shall ensure that no other member of the Group will) incur (or agree allow to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) above . This restriction does not apply to:
(i) to the following items of Financial Indebtedness referred to (in paragraph (b) of Clause 23.6 (Loans and guarantees);each case, a Permitted Financial Indebtedness):
(ii) 25.5.1 any Financial Indebtedness arising incurred under the Finance Documents;
(iii) 25.5.2 any Financial Indebtedness arising under a Permitted Loan, a Permitted Guarantee or a Permitted Treasury Transaction;
25.5.3 any Financial Indebtedness of a company which becomes any person acquired by a member of the Group after the Signature Date which is incurred under arrangements in existence at the date of this Agreementacquisition, where but not incurred or increased or its maturity date extended in contemplation of, or since, that acquisition, and outstanding only for a period of 3 months following the date of acquisition;
25.5.4 Financial Indebtedness under a finance or capital lease, instalment credit agreement, retention of title, hire purchase or conditional sale arrangement or arrangements having a similar effect in respect of vehicles, plant, equipment or computers, provided that the aggregate capital value of all items so acquired under outstanding leases, instalment credit agreements, retention of title, hire purchase or conditional sale arrangements or arrangements having a similar effect, by members of the Group, does not exceed an amount of R50,000,000 (or its equivalent in any other currency) at any time;
25.5.5 any Financial Indebtedness under any operating lease for land, buildings or any movable assets which is incurred prior entered into in the ordinary course of business and is classified as a finance lease under IFRS;
25.5.6 any Financial Indebtedness arising under unsecured general or short term banking facilities provided to the date on which that company becomes a member of the Group if:
(A) by another bank or financial institution, provided that the maximum aggregate amount of Financial Indebtedness was under this Clause 25.5.6 does not incurred exceed R500,000,000 (or its equivalent in contemplation any other currency) at any time;
25.5.7 any Financial Indebtedness in respect of any Shareholder Contribution, on the condition that the claims of the acquisition Shareholders against the Borrower are subordinated to the claims of that companythe Finance Parties under the Finance Documents, either under the Subordination Agreement or otherwise on terms acceptable to the Facility Agent;
(B) the 25.5.8 any Financial Indebtedness is repaid, prepaid or cancelled expressly permitted in full within [***] writing by the Facility Agent; or
25.5.9 any Financial Indebtedness of that company becoming a any member of the Group;
(iv) any Group not otherwise permitted by this Clause above, provided that the aggregate Financial Indebtedness of all members of the Group permitted under Clauses 25.5.2 to 25.5.9 above (inclusive) (when taken together, at any applicable time, with the aggregate actual or contingent liability under all outstanding guarantees which are permitted under Clause 23.19 25.12.2 to 25.12.10 (HedgingThird party guarantees) (inclusive);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] R600,000,000 (or its equivalent in another currency or currenciesany other currency).
Appears in 2 contracts
Samples: Common Terms Agreement (Net 1 Ueps Technologies Inc), Common Terms Agreement (Net 1 Ueps Technologies Inc)
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure procure that no other member of the Bank Group will) incur (shall), without the prior written consent of an Instructing Group incur, create or agree permit to incur) subsist or have outstanding any Financial Indebtedness.Indebtedness or enter into any agreement or arrangement whereby it is entitled to incur, create or permit to subsist any Financial Indebtedness other than in either case:
(a) Financial Indebtedness arising under or pursuant to the Finance Documents (including in respect of any outstanding Documentary Credit and arising in respect of any Alternative Baseball Financing) and under or pursuant to the Bridge Finance Documents;
(b) Paragraph Existing Financial Indebtedness provided that the Existing Credit Facilities shall be repaid in full immediately upon the making of the first Advance under this Agreement;
(ac) above does not apply toFinancial Indebtedness arising in respect of:
(i) Financial Indebtedness referred to the Existing High Yield Notes and the subordinated unsecured guarantee given by the Company in paragraph (b) of Clause 23.6 (Loans and guarantees)respect thereof;
(ii) Financial Indebtedness arising under the Finance DocumentsNew High Yield Notes and any subordinated unsecured guarantee granted by the Company in respect of such New High Yield Notes provided that the New High Yield Notes and such guarantee will be subject to the provisions of the HYD Intercreditor Agreement;
(iii) the Additional High Yield Notes and any subordinated unsecured guarantee granted by the Company in respect of such Additional High Yield Notes, provided that the Additional High Yield Notes and such guarantee will be subject to the provisions of the HYD Intercreditor Agreement or will be subordinated pursuant to another intercreditor arrangement satisfactory to the Facility Agent or on terms substantially identical to the HYD Intercreditor Agreement mutatis mutandis (the “Supplemental Additional High Yield Notes Intercreditor Agreement”), provided, that no Default or Event of Default is outstanding or occurs as a result of the issuance of the Additional High Yield Notes, and provided further that the proceeds thereof (after deducting all reasonable fees, commissions, costs and expenses incurred by any member of the Group in connection with such raising) are applied as required by Clause 12.5(a)(ii) (Repayment from Debt Proceeds);
(iv) any High Yield Refinancing and any guarantee given by any member of the Bank Group in respect thereof, provided that such guarantee is given on a subordinated unsecured basis and is subject to the terms of the HYD Intercreditor Agreement or given on subordination terms consistent with those contained in the HYD Intercreditor Agreement;
(d) Financial Indebtedness of any member of the Bank Group falling within, and permitted by Clause 25.3 (Loans and Guarantees);
(e) Financial Indebtedness arising under any Hedging Agreements permitted under Clause 25.12 (Limitations on Hedging);
(f) Financial Indebtedness arising in relation to either an Asset Passthrough or a Funding Passthrough;
(g) Financial Indebtedness of any company which became or becomes a member of the Bank Group after the date of this AgreementOriginal Execution Date, where the such Financial Indebtedness is incurred arose prior to the date on which that such company became or becomes a member of the Group Bank Group; if:
(Ai) the such Financial Indebtedness was not incurred created in contemplation of the acquisition of that such company;
(Bii) the aggregate principal amount of all of the Financial Indebtedness assumed in reliance on this paragraph (g) either (1) does not exceed £85 million (or its equivalent in other currencies) outstanding at any time or (2) to the extent such Financial Indebtedness does exceed £85 million, an amount equal to such excess is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Grouprepaid promptly thereafter;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(viih) Financial Indebtedness arising from in respect of any guarantee given by the issuance Company or issuances TCN or any other member of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] the Bank Group in respect of the relevant borrower’s obligations under any Parent Debt (“Guaranteed Parent Debt”), provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(Ci) the proceeds of such Guaranteed Parent Debt are applied contributed into the Bank Group in accordance with Clause 9.5 24.15 (Capital Market Issue ProceedsContributions to the Bank Group) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs applied either (i) to (vi) above, the aggregate outstanding principal amount of which across towards the Group does not at Business or in a business whose primary operations are directly related to the Group Business or (ii) towards the refinancing of any time exceed [***] (or its equivalent in another currency or currencies).outstanding Indebtedness of the Bank Group; and
Appears in 2 contracts
Samples: Senior Facilities Agreement (Virgin Media Inc.), Senior Facilities Agreement (Virgin Media Inc.)
Financial Indebtedness. (a) No Except as permitted under paragraph (b) below, no Obligor shall (and the Company shall ensure that no other member of the Group will) incur (or agree allow to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) above does shall not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising under the Finance Documents;
(ii) Financial Indebtedness that:
(A) is outstanding on the date hereof and is less than USD 2,000,000 (or its equivalent in any other currency or currencies) individually or USD 15,000,000 in the aggregate; or
(B) arises or is incurred under agreements listed in Schedule 17 (List of Existing Financial Indebtedness and Existing Security) and any refinancings, refundings, renewals or extensions thereof, provided that the amount of such Financial Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilised thereunder;
(iii) obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising under any Swap Agreement, provided that such obligations are (or were) entered into in the ordinary course of business and not for purposes of speculation;
(iv) Financial Indebtedness in respect of finance leases and purchase money obligations for fixed or capital assets and any refinancings, refundings, renewals or extensions thereof provided that the amount of such Financial Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilised thereunder provided that the only property subject to such finance leases and purchase money obligations is the property so acquired;
(v) Financial Indebtedness that may be deemed to exist pursuant to surety bonds, appeal bonds, supersedeas bonds or similar obligations incurred in the ordinary course of business;
(vi) so long as no Default has occurred and is continuing or would result therefrom at the time of incurrence, any other unsecured Financial Indebtedness of (x) the Company or any Guarantor and (y) any Borrower under and as defined in the Existing US Facility Agreement which is a Foreign Subsidiary, in the case of clause (y), in an aggregate principal amount not to exceed the greater of (i) USD 200,000,000 and (ii) 20% of Consolidated Tangible Assets (calculated as of the end of the immediately preceding Financial Quarter for which the Company’s financial statements were most recently delivered pursuant to paragraph (a) or (d) of Clause 19.1 (Financial statements) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to paragraph (a) or (d) of Clause 19.1 (Financial statements), the Original Financial Statements provided that, in each case, such Financial Indebtedness is not senior in right of payment to the payment of the Financial Indebtedness arising under this Agreement and the Finance Documents;
(vii) Financial Indebtedness of a company which Subsidiary of the Company to the Company or any of the Company's other Subsidiaries or Financial Indebtedness of the Company to any Subsidiary of the Company in connection with loans or advances provided that each item of intercompany debt shall be unsecured and such Financial Indebtedness shall only be permitted under this sub-paragraph (b)(vii) to the extent it will be eliminated for the purposes of the consolidated financial statements of the Company in accordance with U.S. GAAP;
(viii) Financial Indebtedness arising as a result of the endorsement in the ordinary course of business of negotiable instruments in the course of collection;
(ix) [reserved];
(x) guarantees by the Company of Financial Indebtedness of any Subsidiary of the Company and by any Subsidiary of the Company of Financial Indebtedness of the Company or any other Subsidiary of the Company provided that the Financial Indebtedness so guaranteed is permitted by this paragraph (b);
(xi) Financial Indebtedness owed to any person providing workers' compensation, health, disability or other employee benefits or property, casualty, liability or other insurance to the Company or any Subsidiary of the Company, including pursuant to reimbursement or indemnification obligations to such person, in each case incurred in the ordinary course of business;
(xii) customary contingent indemnification obligations to purchasers in connection with any Disposal;
(xiii) Financial Indebtedness of any person that becomes a member Subsidiary of the Group Company after the date of this Agreement, where provided that such Financial Indebtedness exists at the time such person becomes a Subsidiary of the Company and is not created in contemplation thereof, and any refinancings, refundings, renewals or extensions thereof, provided that the amount of such Financial Indebtedness is incurred prior not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred reasonable premium or other reasonable amount paid and fees and expenses reasonably incurred, in contemplation of the acquisition of that companyconnection with such refinancing and by an amount equal to any existing commitments unutilised thereunder;
(Bxiv) the Financial Indebtedness is repaidin respect of netting services, prepaid or cancelled cash management obligations, overdraft protections and otherwise in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) connection with deposit accounts and Financial Indebtedness arising from the issuance honouring by a bank or issuances other financial institution of a cheque, draft or similar instrument inadvertently (except in the case of daylight overdrafts) being drawn against insufficient funds in the ordinary course of business;
(xv) Financial Indebtedness with respect to the deferred purchase price of property acquired and any refinancings, refundings, renewals or extensions thereof provided that the amount of such Financial Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to any existing commitments unutilised thereunder or by an amount equal to a reasonable premium or other reasonable amount paid and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilised thereunder;
(xvi) Financial Indebtedness incurred in respect of credit cards, credit card processing services, debit cards, stored value cards or purchase cards (including so-called "procurement cards" or "P-cards") in each case, incurred in the ordinary course of business;
(xvii) contingent liabilities in respect of any indemnification obligations, adjustment of purchase price, non-compete, or similar obligations (other than guarantees of any Financial Indebtedness for borrowed money) of the Company or any Subsidiary of the Company incurred in connection with the consummation of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecuredacquisitions;
(Bxviii) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any other Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within covered under paragraphs (i) to (vixvii) above, the above in an aggregate outstanding principal amount of which across not to exceed the Group does not at any time exceed [***] greater of:
(A) USD 150,000,000 (or its equivalent in another any other currency or currencies); and
(B) 15 per cent. of Consolidated Tangible Assets (calculated as of the end of the immediately preceding Financial Quarter for which the Company's financial statements were most recently delivered pursuant to Clause 19.1 (Financial statements), or if prior to the date of the delivery of the first financial statements to be delivered pursuant to Clause 19.1 (Financial statements), the Original Financial Statements) provided that for the avoidance of doubt, no Default or Event of Default shall be deemed to have occurred if, at the time of creation, incurrence, assumption or initial existence thereof, such Financial Indebtedness was permitted to be incurred pursuant to this sub-paragraph (xviii) notwithstanding a decrease after such time in the basket amount permitted under this sub-paragraph (xviii) as a result of a decrease in Consolidated Tangible Assets.
Appears in 2 contracts
Samples: Syndicated Loan Agreement (Hillenbrand, Inc.), Syndicated L/G Facility Agreement (Hillenbrand, Inc.)
Financial Indebtedness. (a) No Obligor 19.4.1 Subject to clause 19.4.2, the Parent shall not (and the Company Parent shall ensure procure that no other member of the Group will(other than a Guarantor or a Project Finance Subsidiary) incur (shall) incur, create or agree permit to incur) subsist or have outstanding any Financial Indebtedness or enter into any agreement or arrangement whereby it is entitled to incur, create or permit to subsist any Financial Indebtedness other than Permitted Indebtedness.
19.4.2 The Parent shall not (b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising under the Finance Documents;
(iii) any Financial Indebtedness of a company which becomes a Parent shall procure that no member of the Group shall) incur any Financial Indebtedness or enter into any agreement or arrangement whereby it is entitled to incur any Financial Indebtedness (other than Permitted Indebtedness), such that the Permitted Indebtedness Ratio, immediately after the date incurral of this Agreementthat Financial Indebtedness, where will exceed 2:1; provided that:
19.4.2.1 should the Parent (or any member of the Group) wish to incur any Financial Indebtedness contemplated by clause 19.4.2 and the ratio of Consolidated Net Borrowings (including such Financial Indebtedness) to Consolidated EBITDA as at the most recent Forecast Measurement Date exceed 1.8:1, the Parent shall provide the Facility Agent the calculation of the Permitted Indebtedness Ratio and all supporting schedules thereto, including the calculation of Forecast Consolidated EBITDA (and Target Forecast EBITDA if clause 2.2.1.15.1 is incurred applicable) (the “Forecast”) prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 contemplated by clause 19.4.2 is proposed to be incurred; and thereafter for every increase of R200 000 000 (Hedging);
(vTwo Hundred Million Rand) any Financial Indebtedness in Consolidated Net Borrowings in excess of the amount of Consolidated Net Borrowings used in the first Forecast provided to the extent covered by Facility Agent until such time as the Permitted Indebtedness Ratio as at a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount subsequent Forecast Measurement Date does not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilitiesexceed 1.8:1; and
19.4.2.2 the Forecast (Ca) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) contains all of the definition of information and the assumptions on which the Forecast was prepared, and (b) is certified by the Chief Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) Officer of the definition of Financial Indebtedness shall only be counted once Parent as being based on recent historical information, Bloomberg median consensus forecasts for this purpose) not falling within paragraphs (i) to (vi) aboveexchange rates and commodity prices, and other assumptions that are fair and reasonable as at the aggregate outstanding principal amount of date at which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies)Forecast was prepared.
Appears in 2 contracts
Samples: Revolving Credit Facility Agreement (Sibanye Gold LTD), Revolving Credit Facility Agreement (Gold Fields LTD)
Financial Indebtedness. (a) No Except as permitted under paragraph (b) below, no Obligor shall (and the Company Parent shall ensure that no other member of the Group will) incur (incur, or agree allow to incur) or have outstanding remain outstanding, any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:to Financial Indebtedness which is Permitted Financial Indebtedness.
(ic) Financial Indebtedness referred to in paragraph Parent shall not (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising under the Finance Documents;
(iii) any Financial Indebtedness of a company which becomes a shall procure that no other member of the Group shall) incur any Permitted Financial Indebtedness after the Amendment Effective Date unless the Effective Yield for any such Permitted Financial Indebtedness is no greater than (i) if such Permitted Financial Indebtedness is a floating rate instrument, (A) the Applicable Percentage (determined by reference to the “Eurodollar Spread”) applicable to the Facilities on the date that Parent incurs such Permitted Financial Indebtedness plus (B) 0.50% per annum (in each case, the “MFN Floating Rate”), unless the Applicable Percentage is (or, as the case may be, if the difference between the Effective Yield and the MFN Floating Rate results from a higher level of fees applicable to the Relevant Financial Indebtedness, the fees applicable to the Relevant Financial Indebtedness, the fees applicable to the Facilities are) increased by the amount by which the Effective Yield for the relevant Permitted Financial Indebtedness exceeds the applicable MFN Floating Rate or (ii) if such Permitted Financial Indebtedness is a fixed rate instrument, (A) the Applicable Percentage plus the Adjusted LIBO Rate applicable to the Facilities on the date that Parent incurs such Permitted Financial Indebtedness plus (B) 0.50% per annum (in each case, the “MFN Fixed Rate”), unless the Applicable Percentage is (or, as the case may be, if the difference between the Effective Yield and the MFN Fixed Rate results from a higher level of fees applicable to the Relevant Financial Indebtedness, the fees applicable to the Relevant Financial Indebtedness, the fees applicable to the Facilities are) increased by the amount by which the Effective Yield for the relevant Permitted Financial Indebtedness exceeds the applicable MFN Fixed Rate; provided that this AgreementSection 6.13(c) shall not apply to (x) unsecured high yield bonds issued as public securities and (y) working capital, where leasing or factoring facilities in an aggregate principal amount not to exceed $10,000,000 (or its equivalent in other currencies) at any time.
(d) Notwithstanding any other provision, permission or authorization to the contrary in any Finance Document (and this Section 6.13(d) shall prevail over any provisions to the contrary in any Finance Document), Parent shall procure that the Financial Indebtedness is incurred prior of Xxxxxx XX (other than Financial Indebtedness owed to other members of the date on which Group) does not exceed $100,000,000 at any time.
(e) Parent shall not, and shall procure that company becomes a no member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaidshall, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) create any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness Security (other than falling within paragraph Security permitted under clauses (gc) or (w) of the definition of Financial IndebtednessPermitted Security) provided over bank accounts used for the purposes of cash-pooling arrangements within the Group other than under the Collateral.
(f) Notwithstanding any other provision, permission or authorization to the contrary in any Finance Document (including, for the avoidance of doubt, any Security Document) (and this Section 6.13(f) shall prevail over any other provision in any Finance Document as of the Amendment Effective Date notwithstanding any other provision to the contrary in any Finance Document), Parent undertakes not to carry out or otherwise effect or complete (it being understood that Parent undertakes to procure that no other member of the Group undertakes, carries out or otherwise effects or completes) any of the following transactions: (a) the incurrence on or after the Amendment Effective Date of any Financial Indebtedness referred (by way of incurrence of any Additional Senior Class Debt (as such term is defined in the Intercreditor Agreement) in any manner (including by way of amendment to in paragraphs (hthe French Revolving Facility Agreement or the U.S. Term Loan Agreement) or by way of execution of any Additional First Lien Documents (j) as such term is defined in the Intercreditor Agreement), which would share in or benefit from all or any of the definition Collateral, unless such Financial Indebtedness is a Permitted RCF Roll, or which would benefit from Security which would rank junior to the interests of the Lenders in all or any part of the Collateral (it being acknowledged that lenders under an aggregate maximum principal amount of Financial Indebtedness shall only be counted once for this purposeof $832,122,500 share in the Collateral as of the Amendment Effective Date); and (b) not falling within paragraphs any refinancing or replacement of any Financial Indebtedness (iin any manner including by way of an exchange offer) to (vi) aboveother than in the form of Permitted Refinancing Indebtedness, in each case without the aggregate outstanding principal amount consent of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies)Majority Lenders.
Appears in 2 contracts
Samples: Credit Agreement (CGG), Amendment and Restatement Agreement (CGG)
Financial Indebtedness. (a) No Except as provided below, no Obligor shall (may, and the Company shall ensure procure that no other member of the Group will) will incur (or agree permit to incur) or have be outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)incurred under the Finance Documents or the Original Facility Agreement;
(ii) any Financial Indebtedness arising incurred pursuant to a transaction permitted under the Finance DocumentsSubclause 22.12 (Loans and Guarantees);
(iii) any Financial Indebtedness incurred by any member of a company which becomes the Group in relation to any loans or other credit made or granted by its shareholder(s), the Parent or any of the Parent’s Subsidiaries;
(iv) any Onshore PRC Bank Borrowing of a member of the Group after not exceeding, when aggregated with the date Onshore PRC Bank Borrowings of all other members of the Group, RMB500,000,000 or its equivalent at any time;
(v) any derivative transaction protecting against or benefiting from fluctuations in any rate or price entered into (A) in connection with this Agreement, where ; or (B) in the Financial Indebtedness is incurred prior to ordinary course of business of the date on which that company becomes a relevant member of the Group if:
(A) the Financial Indebtedness was not incurred but not, in contemplation of the acquisition of that companyany event, for speculative purposes;
(Bvi) the Financial Indebtedness is repaidthe details of which are set out in Part 2 (Existing Loans and Guarantees) and Part 3 (Existing Letters of Credit) of Schedule 5 (Existing Security Interest, prepaid Loans, Guarantees and Letters of Credit);
(vii) any Financial Indebtedness incurred under any counter-indemnity obligation in respect of any guarantee granted by a bank or cancelled financial institution in full within [***] favour of a governmental body or authority or public utilities company in Hong Kong, provided that company becoming a the amount of such Financial Indebtedness shall not at any time exceed the US$ equivalent of HK$10,000,000 calculated on the basis of the Agent’s Spot Rate of Exchange on the date of calculation by such member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) incurred in connection with the forward sale of non-HK Dollar cheques by a member of the definition of Financial Indebtedness) Group to a bank or financial institution, provided that any Financial Indebtedness referred to in paragraphs (h) or (j) the amount of the definition of such Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] the US$ equivalent of HK$30,000,000 calculated on the basis of the Agent’s Spot Rate of Exchange on the date of calculation by such member of the Group; and
(or its equivalent in another currency or currenciesix) any Financial Indebtedness incurred with the prior written consent of the Facility Agent (acting on the instructions of the Majority Lenders).
Appears in 2 contracts
Samples: Facility Agreement (TTM Technologies Inc), Facility Agreement (TTM Technologies Inc)
Financial Indebtedness. (aA) No Obligor The Borrower shall (and the Company shall ensure procure that no other member of the Group will(other than the Borrower or a CSPP Eligible Issuer) incur (will incur, or agree allow to incur) or have outstanding remain outstanding, any Financial Indebtedness.
(bB) Paragraph (aClause 21.6(A) above does not apply to:
(i1) any Financial Indebtedness referred to in paragraph (b) incurred under the Finance Documents or otherwise with the prior written consent of Clause 23.6 (Loans and guarantees)the Majority Lenders;
(ii) Financial Indebtedness arising under the Finance Documents;
(iii2) any Financial Indebtedness of a company which becomes any person acquired by a member of the Group after which is incurred under arrangements in existence at the date of this Agreementacquisition, where the Financial Indebtedness is incurred prior to but only for a period of six Months from the date on which that company becomes of acquisition;
(3) any netting or set-off arrangement (or any guarantee or indemnity in respect of any of those arrangements) entered into by a member of the Group if:
(A) in the Financial Indebtedness was not incurred in contemplation ordinary course of its banking or cash management or pooling arrangements for the acquisition purpose of that companynetting debit and credit balances;
(B4) any derivative transaction entered into in the Financial Indebtedness is repaidordinary course of its trade in connection with protection against or benefit from fluctuation in any rate, prepaid currency or cancelled in full within [***] of that company becoming a member of the Groupprice (and not for speculative purposes);
(iv5) any Financial Indebtedness permitted under Clause 23.19 (Hedging)in connection with any Permitted Guarantee;
(v6) any Financial Indebtedness arising under any Debt Capital Markets Issue effected for the purpose of:
(a) refinancing any debt incurred in order to fund the Acquisition; or
(b) paying consideration payable pursuant to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary FacilityAcquisition;
(vi7) Permitted Existing any Financial Indebtedness incurred for the purposes of refinancing any existing Financial Indebtedness of the Group or the Target Group and paying associated fees and costs provided that such refinancing is for the same or for a lower aggregate principal amount and on substantially the same terms, as such existing Financial Indebtedness;; or
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) 8) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any other Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Cash Pooling Balance and excluding any Financial Indebtedness referred in respect of any Finance Lease) outstanding from time to time which in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not exceed £300,000,000 or its equivalent at any time exceed [***] in respect of all members of the Group (other than the Borrower or its equivalent in another currency or currencies)a CSPP Eligible Issuer) taken as a whole.
Appears in 2 contracts
Samples: Bridge and Term Facilities Agreement (Rentokil Initial PLC /Fi), Bridge and Term Facilities Agreement (Rentokil Initial PLC /Fi)
Financial Indebtedness. (a) No Obligor shall (and the The Company shall ensure that no Group Company (other member than a Sappi Manufacturing Group Company and each of Sappi International SA, the Group willCompany and Sappi Papier Holding GmbH (for so long as such entity is an Obligor)) shall incur (or agree to incur) or have outstanding any Financial Indebtedness other than Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness under any Finance Document or referred to in paragraph Schedule 10 (b) of Clause 23.6 (Loans and guaranteesExisting Subsidiary External Indebtedness);
(ii) Financial Indebtedness arising under the Finance Documents;
(iii) any Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation respect of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid any derivative or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness hedging transaction permitted under pursuant to Clause 23.19 22.17 (Hedging);
(viii) incurred pursuant to any sale and leaseback transaction where the aggregate principal amount of Financial Indebtedness to the extent covered which all such sale and leaseback transactions relate does not exceed Euro 100,000,000 (or its equivalent in any currency or currencies) at any time;
(iv) arising in circumstances permitted in Clause 22.13 (Loans and Guarantees);
(v) of any person acquired by a guaranteeGroup Company after the date of this Agreement which is incurred under arrangements in place at the date of acquisition but not incurred or increased or having its maturity date extended in contemplation of, bond or letter since, that acquisition, and outstanding only for a period of credit issued under an Ancillary Facilityno longer than three months following the date of acquisition;
(vi) Permitted Existing Financial Indebtednessraised under any current account, overdraft, letter of credit, foreign exchange, SWIFT, and BACS facilities made available by local banks, the aggregate principal amount of which does not exceed Euro 100,000,000 (or its equivalent in any currency or currencies) at any time;
(vii) Financial Indebtedness arising from under any cash pooling or management agreement in the issuance or issuances ordinary course of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecuredbanking arrangements for the purpose of netting debt and credit balances between Group Companies;
(Bviii) any such bond ranks pari passu withuntil the date of the first Utilisation of the Facility, under the Existing RCF Facility;
(ix) arising under the New Financings or subordinated the loan by PE Paper Escrow GmbH to Sappi Papier Holding GmbH of the proceeds of the Bonds and to the Facilitiesextent not already included within paragraph (a)(x) below, the Available Financings;
(x) arising under any invoice discounting, factoring or securitisation arrangement where the aggregate principal amount of Financial Indebtedness raised under all such invoice discounting, factoring or securitisation arrangements does not exceed Euro 600,000,000 at any time;
(xi) arising under finance leases, the aggregate principal amount of which does not exceed Euro 50,000,000 (or its equivalent in any currency or currencies) at any time;
(xii) arising under forward sale agreements, deferred purchase agreements and deferred payment arrangements entered into pursuant to an employee share option scheme, unit trust or management incentive scheme; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purposexiii) not falling within included in paragraphs (i) to (vixii) above, the aggregate outstanding principal amount of above inclusive but which across the Group does not at any time exceed [***] exceed, for the Group, Euro 25,000,000 (or its equivalent in another any currency or currencies)) in aggregate principal amount at any time.
(b) The Company shall ensure that the aggregate principal amount of Sappi Manufacturing Group Indebtedness does not exceed South African Rand 5.5 billion (or its equivalent in any currency or currencies) at any time.
Appears in 2 contracts
Samples: Credit Agreement (Sappi LTD), Credit Agreement (Sappi LTD)
Financial Indebtedness. (a) No Except as permitted under paragraph (b) below, no Obligor shall (and the Company shall ensure that no other member of the Group will) incur (or agree allow to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) above does shall not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising under the Finance Documents;
(ii) Financial Indebtedness that:
(A) is outstanding on the date hereof and is less than USD 2,000,000 (or its equivalent in any other currency or currencies) individually or USD 15,000,000 in the aggregate; or
(B) arises or is incurred under agreements listed in Schedule 17 (List of Existing Financial Indebtedness and Existing Security) and any refinancings, refundings, renewals or extensions thereof, provided that the amount of such Financial Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilised thereunder;
(iii) obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising under any Swap Agreement, provided that such obligations are (or were) entered into in the ordinary course of business and not for purposes of speculation;
(iv) Financial Indebtedness in respect of capital leases and purchase money obligations for fixed or capital assets and any refinancings, refundings, renewals or extensions thereof provided that the amount of such Financial Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilised thereunder provided that the only property subject to such capital leases and purchase money obligations is the property so acquired;
(v) Financial Indebtedness that may be deemed to exist pursuant to surety bonds, appeal bonds, supersedeas bonds or similar obligations incurred in the ordinary course of business;
(vi) so long as no Default has occurred and is continuing or would result therefrom at the time of incurrence, (1) the Specified Senior Notes Indebtedness and (2) any other unsecured Financial Indebtedness of (x) the Company or any Guarantor and (y) any Borrower under and as defined in the Existing US Facility Agreement which is a Foreign Subsidiary, in the case of clause (y), in an aggregate principal amount not to exceed the greater of (i) USD 200,000,000 and (ii) 20% of Consolidated Tangible Assets (calculated as of the end of the immediately preceding Financial Quarter for which the Company’s financial statements were most recently delivered pursuant to paragraph (a) or (d) of Clause 19.1 (Financial statements) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to paragraph (a) or (d) of Clause 19.1 (Financial statements), the Original Financial Statements provided that, in each case, such Financial Indebtedness is not senior in right of payment to the payment of the Financial Indebtedness arising under this Agreement and the Finance Documents;
(vii) Financial Indebtedness of a company which Subsidiary of the Company to the Company or any of the Company's other Subsidiaries or Financial Indebtedness of the Company to any Subsidiary of the Company in connection with loans or advances provided that each item of intercompany debt shall be unsecured and such Financial Indebtedness shall only be permitted under this sub-paragraph (b)(vii) to the extent it will be eliminated for the purposes of the consolidated financial statements of the Company in accordance with U.S. GAAP;
(viii) Financial Indebtedness arising as a result of the endorsement in the ordinary course of business of negotiable instruments in the course of collection;
(ix) Financial Indebtedness incurred in connection with the acquisition of all or a portion of Hill-Rom Company, Inc.'s interest in the real and personal property described in the Farm Agreement;
(x) guarantees by the Company of Financial Indebtedness of any Subsidiary of the Company and by any Subsidiary of the Company of Financial Indebtedness of the Company or any other Subsidiary of the Company provided that the Financial Indebtedness so guaranteed is permitted by this paragraph (b);
(xi) Financial Indebtedness owed to any person providing workers' compensation, health, disability or other employee benefits or property, casualty, liability or other insurance to the Company or any Subsidiary of the Company, including pursuant to reimbursement or indemnification obligations to such person, in each case incurred in the ordinary course of business;
(xii) customary contingent indemnification obligations to purchasers in connection with any Disposal;
(xiii) Financial Indebtedness of any person that becomes a member Subsidiary of the Group Company after the date of this Agreement, where provided that such Financial Indebtedness exists at the time such person becomes a Subsidiary of the Company and is not created in contemplation thereof, and any refinancings, refundings, renewals or extensions thereof, provided that the amount of such Financial Indebtedness is incurred prior not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred reasonable premium or other reasonable amount paid and fees and expenses reasonably incurred, in contemplation of the acquisition of that companyconnection with such refinancing and by an amount equal to any existing commitments unutilised thereunder;
(Bxiv) the Financial Indebtedness is repaidin respect of netting services, prepaid or cancelled cash management obligations, overdraft protections and otherwise in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) connection with deposit accounts and Financial Indebtedness arising from the issuance honouring by a bank or issuances other financial institution of a cheque, draft or similar instrument inadvertently (except in the case of daylight overdrafts) being drawn against insufficient funds in the ordinary course of business;
(xv) Financial Indebtedness with respect to the deferred purchase price of property acquired and any refinancings, refundings, renewals or extensions thereof provided that the amount of such Financial Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to any existing commitments unutilised thereunder or by an amount equal to a reasonable premium or other reasonable amount paid and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilised thereunder;
(xvi) Financial Indebtedness incurred in respect of credit cards, credit card processing services, debit cards, stored value cards or purchase cards (including so-called "procurement cards" or "P-cards") in each case, incurred in the ordinary course of business;
(xvii) contingent liabilities in respect of any indemnification obligations, adjustment of purchase price, non-compete, or similar obligations (other than guarantees of any Financial Indebtedness for borrowed money) of the Company or any Subsidiary of the Company incurred in connection with the consummation of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecuredacquisitions;
(Bxviii) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any other Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within covered under paragraphs (i) to (vixvii) above, the above in an aggregate outstanding principal amount of which across not to exceed the Group does not at any time exceed [***] greater of:
(A) USD 150,000,000 (or its equivalent in another any other currency or currencies); and
(B) 15 per cent. of Consolidated Tangible Assets (calculated as of the end of the immediately preceding Financial Quarter for which the Company's financial statements were most recently delivered pursuant to Clause 19.1 (Financial statements), or if prior to the date of the delivery of the first financial statements to be delivered pursuant to Clause 19.1 (Financial statements), the Original Financial Statements) provided that for the avoidance of doubt, no Default or Event of Default shall be deemed to have occurred if, at the time of creation, incurrence, assumption or initial existence thereof, such Financial Indebtedness was permitted to be incurred pursuant to this sub-paragraph (xviii) notwithstanding a decrease after such time in the basket amount permitted under this sub-paragraph (xviii) as a result of a decrease in Consolidated Tangible Assets.
Appears in 2 contracts
Samples: Syndicated Loan Agreement (Hillenbrand, Inc.), Syndicated Loan Agreement (Hillenbrand, Inc.)
Financial Indebtedness. (a) No Obligor The Company shall (not and the Company it shall ensure that no other member of the Group will) will and, to the fullest extent within its power or control, no Relevant Entity shall incur (or agree to incur) or have outstanding any Financial Indebtedness.Indebtedness (including, without limitation, guarantees of joint venture entities) except:
(a) Financial Indebtedness outstanding under the Existing Facilities at the date of this Agreement and the Refinancing Facilities Agreement;
(b) Paragraph Financial Indebtedness owed to another member of the Group on the date of this Agreement and thereafter in accordance with its cash pooling arrangements and in each case which is subordinated subject to and in accordance with the Subordination Agreement when entered into;
(ac) above does refinancing of Financial Indebtedness under Unaffected Credit Facilities (other than Unaffected Committed Facilities) existing at the date of this Agreement up to a maximum aggregate amount of €50,000,000 (or its equivalent in other currencies) by an Unaffected Credit Facility with a final maturity date no earlier than both (A) the Term Date; and (B) the final maturity of the refinanced Unaffected Credit Facility and on terms which do not apply to:put or seek to put the creditor of the refinanced Unaffected Credit Facility in a preferred position as against any Lender;
(d) refinancing of Financial Indebtedness under Unaffected Committed Facilities by Unaffected Credit Facilities (i) Financial Indebtedness referred with a final maturity date falling no earlier than (x) the Term Date; or (y) the final maturity date of the refinanced Facility; and (ii) on terms that do not put or seek to put the creditor of the refinanced Facility in paragraph (b) of a preferred position as against any Lender as provided in Clause 23.6 (Loans and guarantees4.7(b);
(iie) Financial Indebtedness arising incurred by the Company under the Finance Documentsany Facility which is not an Existing Facility which does not or could not be expected to have a Material Adverse Effect or result in a Default;
(iiif) Financial Indebtedness in respect of Overdraft Facilities that may fluctuate in accordance with their terms up to the maximum Exposure under such overdraft facilities as at the Calculation Point;
(g) Financial Indebtedness in respect of any issue of bonds, notes, debt securities or capital markets instruments, 50% of the net proceeds of which are applied pursuant to Clause 7.2(c) in mandatory prepayment and cancellation of the Affected Facilities; or
(h) any other Financial Indebtedness of a company which becomes a member of the Group incurred after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes by a member Subsidiary of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaidCompany or a Relevant Entity, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time does not exceed [***] a maximum aggregate amount of €50,000,000 (or its equivalent in another currency or other currencies).
Appears in 2 contracts
Samples: Secured Coordination Agreement (Rhodia), Secured Coordination Agreement (Rhodia)
Financial Indebtedness. (aA) No Obligor shall (and the Company Borrower shall ensure that no other member of the Group will) incur (create, incur, assume, or agree to incur) or have outstanding be liable for any Financial Indebtedness.
(bB) Paragraph (aClause 19.5(A) above does not apply to:
(i1) Financial Indebtedness referred SVB credit card facilities and other ancillary facilities up to a maximum of £500,000 or its equivalent in paragraph other currencies (b) of Clause 23.6 (Loans and guaranteesin aggregate);
(ii2) $2,859,824 made available to the US Obligor under the US Paycheck Protection Program;
(3) the Obligor’s Financial Indebtedness arising to the Finance Parties under the Finance Documents;
(iii4) any Financial Indebtedness in respect of rent deposits up to a maximum aggregate amount of £250,000 (or its equivalent in other currencies);
(5) Financial Indebtedness existing on the date of this Agreement that the Agent has previously approved in writing;
(6) unsecured Financial Indebtedness subordinated to the obligations due to the Finance Parties hereunder on terms satisfactory to the Agent and the Arranger (each acting reasonably);
(7) unsecured Financial Indebtedness to trade creditors incurred in the ordinary course of business;
(8) Financial Indebtedness incurred as a result of endorsing negotiable instruments received in the ordinary course of business;
(9) Financial Indebtedness arising under a foreign exchange transaction for spot or forward delivery entered into in connection with protection against fluctuation in currency rates where that foreign exchange exposure arises in the ordinary course of trade or in respect of Utilisations made in Optional Currencies, but not a foreign exchange transaction for investment or speculative purposes;
(10) Financial Indebtedness arising under any derivative transaction entered into for the hedging of actual or projected real exposures arising in the ordinary course of trading activities of a company which becomes member of the Group for a period of not more than 12 months and not for speculative purposes;
(11) of any person acquired by a member of the Group after the Closing Date which is incurred under arrangements in existence at the date of this Agreementacquisition, where the Financial Indebtedness is but not incurred prior to or increased or having its maturity date extended in contemplation of, or since, that acquisition, and outstanding only for a period of 3 months following the date on which of acquisition;
(12) under Finance Leases;
(13) under any other finance or capital leases (other than Finance Leases) of vehicles, plant, equipment or computers, provided that company becomes a member the aggregate capital value of all such items so leased under outstanding leases by members of the Group if:
does not exceed £500,000 (Aor its equivalent in other currencies) the Financial Indebtedness was not incurred in contemplation of the acquisition of that companyat any time;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose14) not falling within permitted by the preceding paragraphs (i) to (vi) above, and the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] £500,000 (or its equivalent equivalent) in another currency aggregate for the Group at any time; and
(15) extensions, refinancings, modifications, amendments and restatements of any items of Financial Indebtedness set out in paragraphs (1) to (8) above, provided that the principal amount thereof is not increased or currencies)the terms thereof are not modified to impose more burdensome terms upon any Obligor or any Subsidiary, as the case may be.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (and the The Company shall ensure that no other member of the Group willwhich is not an Obligor (a “Non-Obligor”) shall, incur (or agree allow to incur) or have remain outstanding any Financial Indebtedness., except:
(a) arising under Clause 23.17 (Loans) or Clause 23.18 (Guarantees);
(b) Paragraph incurred in connection with the Xxxxxxxxx Notes pursuant to the Xxxxxxxxx Note Indenture in the form existing on the Date of this Agreement (a) above does not apply to:
(i) Financial Indebtedness referred to the extent within the aggregate maximum amount specified in paragraph (b) the definition of Clause 23.6 (Loans and guarantees“Xxxxxxxxx Notes”);
(iic) arising under any bonding line provided to a Non-Obligor which is a member of the Xxxxxxxxx Group prior to the Closing Date or any replacement permitted pursuant to this Agreement;
(d) incurred in connection with the Existing Facility Agreement until prepayment and cancellation of the facilities thereunder with the proceeds of the first Loan;
(e) incurred under the Existing Xxxxxxxxx Facilities Agreement, until prepayment and cancellation of the facilities thereunder with the proceeds of the first Loan drawn by a member of the Xxxxxxxxx Group or other Financial Indebtedness incurred by members of the Xxxxxxxxx Group and outstanding on the Xxxxxxxxx Accession Date;
(f) arising under any letters of credit or bank guarantees provided under the Existing Xxxxxxxxx Facilities Agreement and in place on the Xxxxxxxxx Accession Date and which are continued on a bilateral basis after the Xxxxxxxxx Accession Date (whether or not cash collateralised), provided that the aggregate amount of such bank guarantees or letters of credit does not at any time exceed $90,000,000;
(g) arising in connection with any surety bonds or performance guarantees issued in the ordinary course of business,
(h) Financial Indebtedness arising under the Finance Documents;
(iii) of any Financial Indebtedness of a company which person that becomes a member of the Group after the date of this AgreementAgreement and is a Non-Obligor, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(Ai) the such Financial Indebtedness was not incurred created in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company such person becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(Cii) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any such Financial Indebtedness (other than falling is discharged within paragraph (g) six months of that person becoming a member of the definition of Financial Indebtedness) provided that any Group unless such Financial Indebtedness referred is permitted to in paragraphs (h) or (j) remain outstanding pursuant to another paragraph of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs Clause 23.20; or
(i) to (vi) above, not permitted by the aggregate preceding paragraphs and the outstanding principal amount of which across the Group does not at any time exceed [***] £75,000,000 (or its equivalent in another currency or other currencies) in aggregate at any time, but in each case subject to and without limiting paragraph (h) of Clause 23.15 (Xxxxxxxxx Group related undertakings).
Appears in 1 contract
Samples: Senior Term and Revolving Facilities Agreement (Melrose PLC)
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that Except as provided below, no other member of the a Borrower Group will) may incur (or agree to incur) or have outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred incurred under the Finance Documents or, prior to the date on which the Existing Credit Facility is repaid and cancelled in paragraph (b) full, in respect of Clause 23.6 (Loans and guarantees)the Existing Credit Facility;
(ii) Financial Indebtedness arising under any derivative transaction protecting against fluctuations in any rate, price, currency or commodity pricing entered into in the Finance Documentsordinary course of business (and not for speculative purposes);
(iii) any Financial Indebtedness incurred in respect of a company which becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the GroupPermitted Third Party LC;
(iv) any Financial Indebtedness permitted under Clause 23.19 incurred by a member of the Borrower Group to replace or renew on substantially similar terms (Hedging)but without increasing the aggregate principal amount outstanding or available thereunder at the time of replacement or renewal and excluding any Financial Indebtedness redeemed or repaid directly or indirectly from the making of a Credit) facilities existing prior to the date of this Agreement which fall due for final repayment prior to the Final Maturity Date;
(v) any Financial Indebtedness owed by any member of a Borrower Group to any other member of the Group, provided that all claims of that other member of the Group against the relevant member of that Borrower Group have (A) been subordinated to the extent covered satisfaction of the Facility Agent (under a Subordination Agreement or otherwise) and (B) in the case of Financial Indebtedness owed by a guaranteethe U.S. Borrower or its Subsidiaries, bond or letter of credit issued under an Ancillary Facilitybeen secured pursuant to the U.S. Security and Pledge Agreement;
(vi) Permitted Existing Financial Indebtedness;
(vii) any Financial Indebtedness arising from the issuance owed by any member of a Borrower Group under finance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided thatcapital leases, but only if:
(A) in the case of any such bond issued is unsecuredFinancial Indebtedness owed by the Dutch Borrower and/or its Subsidiaries, the amount of that Financial Indebtedness, when aggregated with the amount of Financial Indebtedness owed in respect of all other such finance or capital leases entered into by the Dutch Borrower and its Subsidiaries, does not at any time exceed EUR 25,000,000 (or its equivalent in other currencies);
(B) in the case of any such bond ranks pari passu withFinancial Indebtedness owed by the U.S. Borrower and/or its Subsidiaries, the amount of that Financial Indebtedness, when aggregated with the amount of Financial Indebtedness owed in respect of all other such finance or subordinated to capital leases entered into by the FacilitiesU.S Borrower and its Subsidiaries in the same financial year of the Company (starting with the financial year 2004), does not exceed the annual threshold (as defined below) for that financial year; and
(C) in the proceeds are applied case of any such Financial Indebtedness owed by the U.S. Borrower and/or its Subsidiaries, the amount of that Financial Indebtedness, when aggregated with the amount of Financial Indebtedness owed in accordance with Clause 9.5 respect of all other such finance or capital leases entered into by the U.S Borrower and its Subsidiaries, does not at any time exceed USD 1,250,000,000 (Capital Market Issue Proceedsor its equivalent in other currencies). For the purposes of subparagraph (B) and Clause 9.8 above, the annual threshold is:
I. for the financial year ending in December 2004, USD 500,000,000 (Application of Capital Market Issue Proceedsor its equivalent in other currencies); and
II. for each subsequent financial year, the aggregate of (x) USD 450,000,000 (or its equivalent in other currencies) and (y) the amount by which USD 450,000,000 (or, in the case of the annual threshold for the financial year ending in December 2005, USD 500,000,000) exceeds the Dollar amount of such Financial Indebtedness incurred by the U.S Borrower and its Subsidiaries (as demonstrated to the satisfaction of the Facility Agent by the Company) during the previous financial year of the Company;
(vii) the provision by the Dutch Borrower of a guarantee not exceeding in aggregate EUR 80,000,000 in favour of the AH Vaste Klanten Fonds in connection with the outstanding payment obligations of the Company;
(viii) any Financial Indebtedness (other than falling within permitted by paragraph (gd) of the definition of Financial IndebtednessSubclause 23.5 (Negative Pledge); and
(ix) provided that any other Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (viviii) above, above provided that the aggregate outstanding principal amount of which across the Group thereof does not at any time exceed [***] EUR 200,000,000 (or its equivalent in another currency or other currencies).
(c) No member of the Group may (and, for the avoidance of doubt, even if under the other provisions of this Agreement, it would be permitted to incur or permit to subsist such Financial Indebtedness, no member of any Borrower Group may):
(i) incur Financial Indebtedness from sources external to the Group which has a maturity prior to the Final Maturity Date, other than where such Financial Indebtedness is incurred for working capital purposes only; or
(ii) (as a result of the Financial Indebtedness in respect thereof being required, in accordance with the accounting principles applicable to the Group’s consolidated financial statements, to be accounted for on the consolidated balance sheet of the Group) incur or permit to subsist Financial Indebtedness in respect of the asset securitisation programme of U.S. Foodservice, Inc., existing as at the date of this Agreement (or any replacement or increase in respect thereof) unless the aggregate amount of such Financial Indebtedness does not exceed USD 1,000,000,000.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that Except as provided below, no other member of the Group will) may incur (or agree permit to incur) or have outstanding subsist any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred incurred under this Agreement (including under any Ancillary Facility) or the Subordinated Intercompany Loan Agreement, in force as at the date hereof, and subject to in paragraph Clause 23.37 (b) Capitalisation of Clause 23.6 (Loans and guaranteesthe Subordinated Intercompany Loan);
(ii) any Financial Indebtedness arising of any person acquired by a member of the Group which is incurred under arrangements in existence at the Finance Documentsdate of acquisition, but only for a period of 6 months from the date of acquisition and not established in contemplation of that acquisition;
(iii) any Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
derivative transaction permitted under Clause 23.24 (A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the GroupTreasury transactions);
(iv) any Financial Indebtedness loan permitted under Clause 23.19 23.25 (HedgingLoans out);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond Letter of Credit or letter of credit issued under an Ancillary Facility;; or
(vi) Permitted Existing Financial Indebtedness not otherwise permitted under the preceding sub-paragraphs which in aggregate does not exceed (pound)10,000,000 or its equivalent at any time.
(c) The Company will procure that neither Enodis plc nor Topco will incur any Financial Indebtedness, other than:
(i) in the case only of Enodis plc, any Financial Indebtedness evidenced by Bonds or Bond Exchange Notes issued by Enodis plc in compliance with Clauses 23.28 -------------------------------------------------------------------------------- (Bridge Loans, Bonds and Exchange Notes) and any refinancing thereof provided that such refinancing is on terms materially no more onerous than the Bonds or Bond Exchange Notes and 23.25(v) (Loans out);
(viiii) Financial Indebtedness arising from in the issuance or issuances case only of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu withEnodis plc, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness incurred under the Bridge Facility or under the Bridge Exchange Notes; or
(other than falling within paragraph (giii) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies)between Enodis plc and Topco.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor The Company shall (not and the Company it shall ensure that no other member of the Group will) will and, to the fullest extent within its power or control, no Relevant Entity shall incur (or agree to incur) or have outstanding any Financial Indebtedness.Indebtedness (including, without limitation, guarantees of joint venture entities) except:
(b) Paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising incurred under the Finance Documents;
(iiib) any Financial Indebtedness outstanding under the Existing Facilities at the date of a company which becomes a this Agreement;
(c) Financial Indebtedness owed to another member of the Group on the date of this Agreement and thereafter in accordance with its cash pooling arrangements and in the case of an Intra-Group Loan and any other form of credit provided to the Company which is subordinated subject to and in accordance with the Subordination Agreement;
(d) refinancing of Financial Indebtedness with a Facility Agreement on terms which do not bring forward the maturity date or put or seek to put the creditor under that Facility Agreement in a preferred position as against any Lender;
(e) Financial Indebtedness incurred by the Company under any Facility Agreement on terms which do not put the creditor under that Facility Agreement in a preferred position against any Lender and which does not or could not be expected to have a Material Adverse Effect or result in a Default;
(f) Financial Indebtedness in respect of any issue of bonds, notes, debt securities or capital markets instruments, fifty per cent. (50%) of the net proceeds of which are applied pursuant to Clause 9.3(d) in mandatory prepayment and cancellation of the Facilities; or
(g) Financial Indebtedness permitted pursuant to Clauses 21.12(b) and 21.12(c) (Lending, borrowing and guarantees).
(h) provided that as a result there is no Material Adverse Effect, any other Financial Indebtedness incurred after the date of this Agreement, where by a Subsidiary of the Company or a Relevant Entity, provided that at no time does the ratio expressed as a percentage of the aggregate Financial Indebtedness is incurred prior of the Subsidiaries of the Company (other than Rhodia Inc.) (excluding Intra-Group Loans) to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Company’s unconsolidated Financial Indebtedness (other than falling within paragraph (gexcluding Intra- Group Loans) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies)22%.
Appears in 1 contract
Samples: Multicurrency Revolving Credit and Guarantee Facility (Rhodia)
Financial Indebtedness. (a) No Obligor Subject to paragraph (d) of this Clause 19.8, other than pursuant to the Finance Documents, neither the Leaseback Borrower (if applicable) nor any Subsidiary Guarantor shall (and the Company Parent Guarantor shall ensure procure that no Subsidiary Guarantor shall) incur any Financial Indebtedness except (subject to paragraph (b) of this Clause 19.8) any such Indebtedness owed to any member of the Group or the Leaseback Group (if any), provided that:
(i) such inter-group Financial Indebtedness is unsecured and fully subordinated in right of payment to the rights of each of the Finance Parties under the Finance Documents in accordance with paragraph (c) of this Clause 19.8; and
(ii) each Subsidiary Guarantor and the Leaseback Borrower may incur Financial Indebtedness in the ordinary course of operating the Collateral Vessel owned by it provided that in respect of each such Subsidiary Guarantor or the Leaseback Borrower (as the case may be), the aggregate of such Financial Indebtedness does not exceed US$1,000,000 in the case of each such Collateral Vessel at any time.
(b) No member of the Leaseback Group may incur any Financial Indebtedness to any member of the Group (other than for the purposes of an investment in the Leaseback Borrower, which (subject to paragraph (c) of this Clause 19.8) is fully subordinated to the rights of each of the Finance Parties under the Finance Documents, by a member of the Group pursuant to the Permitted Sale and Leaseback) and no member of the Group other than the Parent Guarantor may incur any Financial Indebtedness to any member of the Leaseback Group.
(c) To the extent permitted under the foregoing provisions of this Clause 19.8, any member of the Group and/or the Leaseback Group (as applicable) may service Financial Indebtedness owed to any other member of the Group willand/or the Leaseback Group (as the case may be) incur (or agree to incur) or have outstanding any in accordance with the terms of such Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) , provided that, on any day on which an amount remains due and payable by an Obligor under any Finance Document, such amount shall be discharged in preference to any such Financial Indebtedness referred owed by such Obligor to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising under the Finance Documents;
(iii) any Financial Indebtedness of a company which becomes a another member of the Group after and/or (as applicable) the date Leaseback Group which is also due and payable on such day and notwithstanding the foregoing provisions of this AgreementClause 19.8, where following the occurrence of an Event of Default which is continuing, any payment by an Obligor in respect of Financial Indebtedness is incurred prior owed to the date on which that company becomes a another member of the Group if:and/or (as applicable) the Leaseback Group shall require the prior consent of the Security Trustee.
(Ad) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaidAny Obligor may enter into an interest rate hedge, prepaid currency swap or cancelled in full within [***] of that company becoming similar arrangement for a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription notional amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated the Outstandings as applicable from time to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies)time.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (Incur Financial Indebtedness, and the Company Parent shall ensure that no other member of Subsidiary or (if the Group willmatter is within Parent's control) incur (or agree to incur) or have outstanding any Associate incurs Financial Indebtedness., other than:
(b) Paragraph (a) above does not apply toin the case of itself and the Subsidiaries:
(i) Financial Indebtedness referred to in paragraph Existing Treasury Transactions (b) of Clause 23.6 (Loans and guaranteeswhich may be secured under the Securities as Priority 1 Debt);
(ii) Financial Indebtedness arising Treasury Transactions entered into with a Lender or its Affiliates or a Term A Subscriber or a Term A Subscriber Affiliate or with a TLB Tranche 2 Lender or its Affiliates (which may be secured under the Finance DocumentsSecurities as Priority 1 Debt) and unsecured Treasury Transactions entered into with any other person;
(iii) working capital facilities entered into by one or more Group Security Providers with financial institutions (which may be secured as Priority 1 Debt if the financial institutions first enter into an intercreditor agreement with the Administrative Agent on terms reasonably satisfactory to the Administrative Agent) as long as the aggregate principal amount of Financial Indebtedness outstanding under such working capital facilities does not exceed A$40,000,000 on any date;
(iv) Financial Indebtedness existing on the date of this Agreement and set forth in Schedule 8;
(v) Financial Indebtedness consisting of Loans (including Incremental Loans) hereunder and the guarantees thereof under the other Transaction Documents (which may be secured under the Securities as Priority 1 Debt);
(A) Financial Indebtedness that is provided by a Group Member to a Group Security Provider, or by a Group Member (the "First Group Member") to another Group Member in which Parent's direct or indirect proportionate ownership interest is the same or greater than Parent's direct or indirect proportionate ownership in the First Group Member, or
(B) Financial Indebtedness that is provided by a Group Security Provider to Xxxxxxx Xxxxxxx or any wholly-owned subsidiary of Xxxxxxx Xxxxxxx after Xxxxxxx Xxxxxxx has become a Subsidiary but before Xxxxxxx Xxxxxxx has become a Group Security Provider;
(vii) Financial Indebtedness incurred under (A) the Term A Facility Agreement in an aggregate principal amount not to exceed A$1,300,000,000 (which may be secured under the Securities as Priority 1 Debt) or (B) the Revolving Facility Agreement in an aggregate principal amount not to exceed A$100,000,000 at any time outstanding (which may be secured under the Securities as Priority 1 Debt);
(viii) the New Subordinated Notes in an aggregate principal amount of up to US$210,000,000;
(ix) NZ Holdings Capital Notes Bridge Loans in an aggregate principal amount up to NZ$250,000,000 and NZ Holdings Capital Notes in an aggregate principal amount up to NZ$300,000,000; provided that the aggregate amount of Financial Indebtedness permitted by this Section 6.01(a)(ix) shall not exceed NZ$300,000,000 at any time outstanding;
(x) Financial Indebtedness of a company which Parent or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, and extensions, renewals and replacements of any such Financial Indebtedness that do not increase the outstanding principal amount thereof; provided that (A) such Financial Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Financial Indebtedness permitted by this Section 6.01(a)(x), when combined with the aggregate principal amount of all Capital Lease Obligations incurred pursuant to Section 6.01(a)(xi), shall not exceed US$35,000,000 at any time outstanding;
(xi) Capital Lease Obligations in an aggregate principal amount, when combined with the aggregate principal amount of all Financial Indebtedness incurred pursuant to Section 6.01(a)(x), not in excess of US$35,000,000 at any time outstanding;
(xii) Financial Indebtedness of any person (other than Xxxxxxx Xxxxxxx and its subsidiaries) that becomes a member of the Group Subsidiary after the date of this Agreement; provided that (A) such Financial Indebtedness 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, where the (B) such Financial Indebtedness is not secured by any Encumbrance other than Encumbrances existing at the time (and not created in contemplation of) the acquisition of such person and (C) the aggregate principal amount of Financial Indebtedness permitted by this Section 6.01(a)(xii), when combined with the aggregate principal amount of all Financial Indebtedness incurred pursuant to Section 6.01(a)(xiii), shall not exceed US$100,000,000 in any Financial Year and US$300,000,000 in the aggregate over the life of the Facility;
(xiii) unsecured Financial Indebtedness incurred in connection with a Permitted Acquisition in an aggregate principal amount, when combined with the aggregate principal amount of all Financial Indebtedness incurred pursuant to Section 6.01(a)(xii), not in excess of US$100,000,000 in any Financial Year and US$300,000,000 in the aggregate over the life of the Facility;
(xiv) unsecured Financial Indebtedness of any Group Security Provider that is subordinated in right of payment to the Loans so long as (A) such Financial Indebtedness requires no scheduled payments of principal prior to the date on which that company becomes a member first anniversary of the Maturity Date, (B) the covenants in such Financial Indebtedness do not require the issuer thereof to maintain any specified financial performance or ratios (other than debt incurrence tests or other financial ratios that are required to be met as a condition to taking specified actions thereunder) and (C) the subordination provisions thereof shall be no less favorable to the Lenders than those of the New Subordinated Notes ("Permitted Subordinated Debt");
(xv) any extensions, refinancings, renewals or replacements of Financial Indebtedness incurred pursuant to clause (iv), (viii), (ix), (x), (xi), (xii), (xiii), (xviii), (xix) and (xxv) to the extent the principal amount of such Financial Indebtedness is not increased, neither the final maturity nor the weighted average life to maturity of such Financial Indebtedness is decreased, such Financial Indebtedness, if subordinated to the Loans and other obligations under the Transaction Documents, remains so subordinated on terms no less favorable to the Lenders and the original obligors in respect of such Financial Indebtedness remain the only obligors thereon (it being understood that any extensions, refinancings, renewals or replacements of Financial Indebtedness incurred pursuant to clause (xxv) may be secured under the Securities as Priority 1 Debt);
(xvi) Financial Indebtedness entered into by a Group if:
Member that is not a Group Security Provider as long as (A) the sum of all such Group Member's FI x POI (where FI for each such Group Member is the aggregate principal amount of all such Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
Group Member and POI for each such Group Member is Parent's direct or indirect proportionate ownership interest in the Group Member) does not exceed the Subsidiary Limit at any time and (B) the Financial Indebtedness is repaid, prepaid either unsecured or cancelled in full within [***] of that company becoming a member only secured over assets of the Grouprelevant Group Member;
(ivxvii) Financial Indebtedness of Xxxxxxx Xxxxxxx or any of its subsidiaries incurred pursuant to the GF Receivables Program in an amount not to exceed A$50,000,000 in the aggregate to any time outstanding;
(xviii) Financial Indebtedness of Xxxxxxx Xxxxxxx or any of its subsidiaries that (A) exists on the Control Date and (B) does not exceed US$50,000,000 from and after the later of the date that is 75 days after (1) the Control Date and (2) the Closing Date;
(xix) NZDF Capital Notes outstanding at the time of the NZDF Acquisition in an aggregate principal amount up to NZ$150,000,000;
(xx) Bridge Debentures (which may be secured under the Securities as Priority 1 Debt) and, if the Bridge Term Tranche B Debentures are not incurred, any Financial Indebtedness permitted provided to Xxxxxxx Xxxxxxx or a subsidiary of Xxxxxxx Xxxxxxx to fund the repayment, prepayment or redemption of the GMF Notes or any other Financial Indebtedness of Xxxxxxx Xxxxxxx or any subsidiaries of Xxxxxxx Xxxxxxx not to exceed US$50,000,000 (the "GMF Facility") (which may be secured under Clause 23.19 the Securities as Priority 1 Debt); provided that the entire outstanding principal amount thereof must be repaid on or prior to the Closing Date (Hedgingother than the Bridge Term Tranche B Debentures or, if the Bridge Term Tranche B Debentures are not incurred, the GMF Facility which, in each case, must be repaid within 90 days of Xxxxxxx Xxxxxxx becoming a Wholly-Owned Subsidiary);
(vxxi) any Financial Indebtedness incurred under the Existing Senior Loan Agreement (which may be secured under the Securities as Priority 1 Debt); provided that the entire outstanding principal amount thereof must be repaid on or prior to the Closing Date;
(xxii) obligations (A) in respect of performance, bid, appeal or surety bonds and completion guarantees, (B) for or in connection with pledges, deposits or payments in connection with or to secure statutory, regulatory or similar obligations, including obligations under health, safety or environmental obligations and (C) in respect of worker's compensation obligations, employee benefit obligations, property, casualty or liability insurance and self-insurance, in each of cases (A) through (C), where the requirement or request to incur such obligation arises in the ordinary course of business and to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing such obligation constitutes Financial Indebtedness;
(viixxiii) Financial Indebtedness arising from the issuance honoring by a bank or issuances other financial institution of one a check, draft or more convertible similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Financial Indebtedness is extinguished within five Business Days of Parent or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecuredSubsidiary receiving notice of its incurrence;
(Bxxiv) Guarantees by Parent or any such bond ranks pari passu with, Subsidiary of any Financial Indebtedness of Parent or subordinated any Subsidiary permitted to the Facilities; andbe incurred pursuant to this Section 6.01(a);
(Cxxv) Financial Indebtedness incurred under the proceeds are applied TLB Tranche 2 Credit Agreement in accordance with Clause 9.5 an aggregate principal amount not to exceed US$65,000,000 (Capital Market Issue Proceeds) which may be secured under the TLB Tranche 2 Pledge Agreement and Clause 9.8 (Application of Capital Market Issue Proceedsunder the Securities as Priority 1 Debt); and
(viiixxvi) additional unsecured Financial Indebtedness in an aggregate principal amount not to exceed US$40,000,000 at any time outstanding.
(b) in the case of Associates, any Financial Indebtedness as long as the sum of all Associates' FI x POI (where FI for each Associate is the aggregate principal amount of all such Financial Indebtedness of the Associate and POI for each Associate is Parent's direct or indirect proportionate ownership interest in the Associate) does not exceed the Associate Limit at any time. Notwithstanding the foregoing provisions of this Section 6.01, Parent shall not incur Financial Indebtedness, and shall ensure that no Subsidiary or (if the matter is within Parent's control) Associate incurs Financial Indebtedness, the incurrence of which would give rise (following the expiration of any grace or cure period, if applicable) to any obligation to repurchase or offer to repurchase, event of default, default or other than falling within similar event under any indenture or similar instrument governing Financial Indebtedness of such person subordinated in right of payment to the Loans (an "Incurrence Default"); provided, however, that Parent shall have a period of 30 days from the date of any Incurrence Default to rectify, remedy or remove such Incurrence Default. Except as otherwise expressly provided in clauses (i), (ii), (iii), (v), (vii), (xv), (xx), (xxi) and (xxv) of paragraph (ga) of above, Parent shall not secure, and shall ensure that no Subsidiary or (if the definition of Financial Indebtednessmatter is within Parent's control) provided that Associate secures, any Financial Indebtedness referred to in paragraphs (h) permitted under this Agreement or (j) of otherwise under the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies)Securities as Priority 1 Debt.
Appears in 1 contract
Samples: Credit Agreement (Burns Philp Netherlands European Holdings Bv)
Financial Indebtedness. The Borrower shall not incur or permit to remain outstanding any Financial Indebtedness other than Financial Indebtedness:
(a) No Obligor shall (and the Company shall ensure that no other member of the Group will) incur (or agree to incur) or have outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising incurred under the Finance Documents;
(iiib) any incurred in respect of the SCB Facility;
(c) incurred in respect of the ECIC Facility provided that upon first drawdown under the ECIC Facility all Financial Indebtedness then outstanding under the SCB Facility is either (i) repaid or (ii) recharacterised as Financial Indebtedness outstanding under the ECIC Facility;
(d) under any arrangement pursuant to which any asset sold or otherwise disposed of a company which becomes a by any member of the Group after is or may be leased to or re-acquired by the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) where such arrangement was entered into in the Financial Indebtedness was not incurred in contemplation ordinary course of the acquisition of that companyits day-to-day operations;
(Be) incurred in connection with the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the GroupGDTL Facility;
(ivf) arising in connection with any Financial Indebtedness permitted under annual management fee due from the Borrower to the Guarantor or its Affiliate(s) but unpaid due to the provisions of Clause 23.19 18.7 (HedgingManagement fees);
(vg) any Financial Indebtedness to arising under a foreign exchange transaction for spot or forward delivery entered into in connection with protection against fluctuation in currency rates where that foreign exchange exposure arises in the extent covered by ordinary course of business but not a guarantee, bond foreign exchange transaction for investment or letter of credit issued under an Ancillary Facilityspeculative purposes;
(vih) Permitted Existing Financial Indebtednessarising under any Treasury Transaction provided that such Treasury Transaction is not for speculative purposes;
(viii) Financial Indebtedness arising from under a guarantee or indemnity given for the issuance liabilities or issuances obligations of one an employee or more convertible director of any member of the Group or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:its Affiliates;
(Aj) owed to any such bond issued member of the Group or its Affiliates that is unsecured;
(Bk) any such bond ranks pari passu withowed to Elvington Engineering Limited solely in its capacity as, or subordinated and relating only to xxx xxxx and actions as, the Facilities; andpayroll company for certain employees of the Borrower;
(Cl) arising under a finance lease, a capital lease or other agreement in connection with the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) acquisition of equipment and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) items required for the business of the definition of Financial Indebtedness) Borrower provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] outstanding in respect of such indebtedness is not greater than $15,000,000 (or its equivalent in another currency any other currency);
(m) arising in connection with corporate cash pooling activities between members of the Group or currencies)its Affiliates entered into in the ordinary course of business and on standard terms for such activities;
(n) incurred with the prior written consent of the Lender; and
(o) in addition to that specified in (a) to (n) above, provided that the aggregate of such Financial Indebtedness does not exceed $1,000,000 (or its equivalent in any other currency) at any time. For the purposes of determining whether the monetary limit in this paragraph (o) has been exceeded any guarantee, indemnity or counter-indemnity obligation in respect of other forms of Financial Indebtedness falling within this paragraph (o) shall not be double-counted.
Appears in 1 contract
Samples: Loan Agreement (Tiffany & Co)
Financial Indebtedness. (a) No Obligor shall (and the Company Borrower shall ensure that no other member of the Borrower Group will) incur (or agree to incur) or have outstanding any Financial IndebtednessIndebtedness or any Designated RPS.
(b) Paragraph (a) above does not apply to:
(i) up to the first Utilisation Date, Financial Indebtedness referred to in paragraph (b) respect of Clause 23.6 (Loans and guarantees)the Existing Facilities;
(ii) any Financial Indebtedness arising under the Finance Documents;
(iii) any Financial Indebtedness of a company which becomes a Internal Subordinated Debt (including any Guarantee in respect thereof issued by any member of the Borrower Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a constitutes Internal Subordinated Debt) and any External Subordinated Debt (including any Guarantee in respect thereof issued by any member of the Borrower Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Groupwhich constitutes External Subordinated Debt);
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) Designated RPS issued by any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) member of the definition of Financial Indebtedness) Borrower Group (provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does all such Designated RPS, without double counting, shall not at any one time exceed [***] S$1,000,000,000 (or its equivalent in another currency or currencies).);
(v) any Incremental Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Incremental Indebtedness (provided the aggregate outstanding principal amount of (A) all such Incremental Indebtedness and Guarantees, without double counting and (B) the amount of Facility C Loans then outstanding, shall not at any one time exceed S$1,000,000,000 (or its equivalent in another currency or currencies));
(vi) any Mezzanine Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Mezzanine Indebtedness (provided the aggregate outstanding principal amount of all such Mezzanine Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$1,000,000,000 (or its equivalent in another currency or currencies));
(vii) any Permitted Aircraft/Watercraft Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Permitted Aircraft/Watercraft Indebtedness (provided the aggregate outstanding principal amount of all such Permitted Aircraft/Watercraft Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$300,000,000 (or its equivalent in another currency or currencies)); WTL/1019005126/Third Amended and Restated FA
(viii) any Permitted FF&E Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Permitted FF&E Indebtedness (provided the aggregate outstanding principal amount of all such Permitted FF&E Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$500,000,000 (or its equivalent in another currency or currencies));
(ix) any Purchase Money Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Purchase Money Indebtedness (provided the aggregate outstanding principal amount of all such Purchase Money Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$30,000,000 (or its equivalent in another currency or currencies));
(x) any Permitted Refinancing Indebtedness or RP/CP Hivedown Refinancing Indebtedness;
(xi) any Financial Indebtedness owed by any member of the Borrower Group to another member of the Borrower Group;
(xii) to the extent that such incurrence does not result in the incurrence by any member of the Borrower Group of any obligation for the payment of Financial Indebtedness of others (other than other members of the Borrower Group), any Financial Indebtedness of a member of the Borrower Group incurred solely in respect of:
(A) performance bonds, completion guarantees, standby letters of credit or bankers’ acceptances, letters of credit in order to provide security for workers’ compensation claims, payment obligations in connection with self insurance or similar requirements, surety and similar bonds and statutory claims of lessors, licensees, contractors, franchisees or customers in each case to the extent the Financial Indebtedness in respect of such facilities are on terms more favourable than those under the Ancillary Facilities; and
(B) bonds securing the performance of judgments or a stay of process in proceedings to enforce a contested liability or in connection with any order or decree in any legal proceeding, provided that such Financial Indebtedness described in this sub-paragraph (xii) was incurred in the ordinary course of business of the member of the Borrower Group and the aggregate principal amount outstanding of all such Financial Indebtedness pursuant to this sub-paragraph (xii) does not at any one time exceed S$120,000,000 (or its equivalent in another currency or currencies);
(xiii) any Financial Indebtedness arising from any agreement entered into by any member of the Borrower Group providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred or assumed in connection with a sale, lease, license, transfer or other disposition of any asset permitted pursuant to paragraph (c) of Clause 22.5 (Disposals); WTL/1019005126/Third Amended and Restated FA (xiv) any Financial Indebtedness in respect of derivative transactions entered into pursuant to Clause 22.8 (Hedging);
Appears in 1 contract
Samples: Third Amendment and Restatement Agreement (Las Vegas Sands Corp)
Financial Indebtedness. (a) No Obligor Except as permitted under paragraph (b) below and under Clause 21.27 (Treasury transactions), the Borrower shall not (and the Company shall ensure that no other member of the Group Member will) incur (or agree to incur) or have outstanding remain liable under any Financial Indebtedness.
(b) Paragraph (a) above does not apply toto Financial Indebtedness which is:
(i) Financial Indebtedness referred to in paragraph (b) under any of Clause 23.6 (Loans and guarantees)the Permitted Facilities or the Mezzanine Debt Documents;
(ii) Financial Subordinated Indebtedness arising under incurred by the Finance DocumentsBorrower, provided that, if so requested by the Lender (acting reasonably), the Borrower shall provide the Lender with legal opinions in respect of such Subordinated Indebtedness in form and substance satisfactory to it (acting reasonably);
(iii) any Financial Indebtedness incurred by a Group Member incorporated in PRC, if the Borrower’s ratio of a company which becomes a member “Consolidated Total Liabilities” to “Consolidated Tangible Net Worth” and ratio of “Consolidated EBITDA” to “Consolidated Finance Charges” as prescribed under Clause 20 (Financial Covenants) at the Group after the date of this Agreement, where the time such additional Financial Indebtedness is incurred prior to would have met the date requirements set forth under Clause 20.1 (Financial Condition), determined on which that company becomes a member pro forma basis as if such additional Financial Indebtedness had been incurred in full on both the first and last day of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;most recently ended financial year; and
(iv) any incurred with the prior written consent of the Lender, provided that the Lender should be deemed to have given its consent if the Lender does not object to such Financial Indebtedness permitted under Clause 23.19 within one (Hedging);
(v1) Month of any Financial Indebtedness notice given by the Borrower to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Lender describing in reasonable details such Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies).
Appears in 1 contract
Samples: Facility Agreement (Zhongpin Inc.)
Financial Indebtedness. (a) No Obligor Except as permitted under paragraph (b) or paragraph (c) below, the Company shall not (and the Company shall ensure that no other member of the Group will) incur (or agree allow to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)which is incurred under the PIK Finance Documents or the PIK Documents;
(ii) Financial Indebtedness arising of any member of the Midco Group which is incurred under the Bridge Finance DocumentsDocuments or the Senior Finance Documents (to the extent permitted under the Intercreditor Agreement);
(iii) any Financial Indebtedness of any member of the Midco Group arising under the High Yield Notes Documents as amended from time to time in accordance with this Agreement;
(iv) any Financial Indebtedness arising under any on-loan of the proceeds of the PIK Facility made by the Company to Midco including any Financial Indebtedness arising under the PIK Notes Inter-Company Loan Agreement;
(v) Capitalised Lease Obligations incurred by Midco or any of its Subsidiaries provided that such Capitalised Lease Obligations are with another member of the Group or:
(A) do not result in a company breach of the undertaking as to maximum Capital Expenditure in paragraph (d) of Clause 19.2 (Financial condition) of the Bridge Facility Agreement;
(B) are on arm’s length terms; and
(C) to the extent that the aggregate amount of the principal element of such Capitalised Lease Obligations, calculated in accordance with the Accounting Principles, does not at any time exceed €75,000,000 (or its equivalent in other currencies);
(vi) monies borrowed under a loan from another member of the Group which becomes is permitted under Clause 20.12 (Loans or credit), or any guarantee given by a member of the Midco Group which is permitted under Clause 20.13 (No guarantees or indemnities);
(vii) Financial Indebtedness of any member of the Midco Group to the extent covered by a letter of credit issued under the Senior Facilities or other letter of credit, guarantee or indemnity issued under an Ancillary Facility or a Fronted Ancillary Facility (each as defined in the Senior Facilities Agreement);
(viii) Financial Indebtedness of any member of the Midco Group in respect of any transaction which is a Treasury Transaction permitted by Clause 20.26 (Treasury Transactions);
(ix) any Financial Indebtedness arising under any cash management or cash pooling arrangement to the extent entered into in the ordinary course of its banking arrangements for the purpose of netting balances of members of the Group at the end of each day and provided at all times following the date falling three Months after the Closing Date, that the aggregate of debit balances of members of the Group other than Senior Obligors under all such arrangements that are supported by Senior Obligors does not exceed €125,000,000 (or its equivalent in other currencies) in aggregate at any time;
(x) the discounting of bills or notes in the ordinary course of trading, provided that, for avoidance of doubt, this does not permit the entering into of receivables discounting facilities on a with recourse basis;
(xi) any Financial Indebtedness of any member of the Midco Group arising under any Vendor Financing;
(xii) any Financial Indebtedness under an Investor Document or a Permitted Subordinated Debt Document as amended from time to time in accordance with this Agreement;
(xiii) any Financial Indebtedness incurred by any member of the Group as a result of the implementation or completion of any step set out in the Structure Memorandum;
(xiv) any Financial Indebtedness of the Target Group outstanding on the Closing Date provided such indebtedness is repaid or prepaid within three Months of the Closing Date (save as otherwise permitted in this sub-paragraph (b));
(xv) any Financial Indebtedness of any member of the Midco Group under the Target Bonds and the 2006 Target Bonds;
(xvi) any Financial Indebtedness of any member of the Midco Group incurred for the purpose of repaying or redeeming amounts outstanding under or otherwise acquiring any Target Bonds provided that:
(A) the scheduled maturity date of such Financial Indebtedness does not fall prior to the date falling twelve years after the Closing Date; and
(B) the borrower of such Financial Indebtedness shall be the borrower of the Target Bonds to be repaid, redeemed or otherwise acquired;
(xvii) any Financial Indebtedness of any member of the Midco Group incurred which falls under paragraph (g) of the definition of Financial Indebtedness;
(xviii) Financial Indebtedness of any person acquired by a member of the Group after the Closing Date which is outstanding under arrangements in existence at the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group ifacquisition (provided that:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming entity by a member of the Group;
(ivB) any the principal amount of such Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount is not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu withincreased in contemplation of, or subordinated to after the Facilitiesdate of, the acquisition (otherwise than by the capitalisation of interest); and
(C) such Financial Indebtedness is repaid within three Months of the proceeds date of the acquisition);
(xix) any Financial Indebtedness of HTCC;
(xx) any loan made by a Holdco to any member of the Group in connection with the payment of Taxes which are applied in accordance with Clause 9.5 attributable to the business of the Group which are on terms satisfactory to the PIK Facility Agent (Capital Market Issue Proceedsacting reasonably);
(xxi) any Financial Indebtedness incurred under the “Qualified Technological Equipment Lease” US cross-border sale and Clause 9.8 (Application leaseback transactions entered into by one or more members of Capital Market Issue Proceeds)the Target Group prior to the date of this Agreement; and
(viiixxii) any Financial Indebtedness (other than falling within paragraph (g) of Midco or any of its Subsidiaries not otherwise permitted by the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within preceding paragraphs (i) to (vixxi) above, the (inclusive) in an aggregate outstanding principal amount of which across the Group does outstanding not at any time exceed [***] exceeding €100,000,000 (or its equivalent in another currency other currencies) at any time.
(c) The Company may not, prior to the Closing Date, incur any Financial Indebtedness for the purpose of financing Market Purchases unless:
(i) such Financial Indebtedness is Permitted Subordinated Debt (including Permitted Subordinated Debt as defined in the Bridge Facility Agreement; or
(ii) such Financial Indebtedness is provided by third party lenders on terms such that it will be capable of being refinanced on, and any Security provided in support of that Financial Indebtedness will be released on, the Closing Date.
(iii) The Company shall be obliged:
(A) to refinance any Financial Indebtedness incurred by it under sub-paragraph (ii) above, through a Utilisation of the Senior Facilities;
(B) to cancel any available facility in respect of Market Purchases made available to it in accordance with sub-paragraph (ii) above;
(C) procure the release of any Security which it has granted in support of any Financial Indebtedness incurred by it under sub-paragraph (ii) above; and
(D) provide a certificate from the relevant third party lender that it has no further claims against the Company in respect of any such Financial Indebtedness incurred by it under, or currencies)facility made available to in accordance with sub-paragraph (ii) above, in each case on or before the first Utilisation Date.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (and the Company Borrower shall ensure that no other member of the Group will) incur (or agree permit to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred incurred pursuant to in paragraph (b) of Clause 23.6 (Loans and guarantees)any Finance Documents;
(ii) any Financial Indebtedness arising under owed to another member of the Finance DocumentsGroup (including as a direct result of a Permitted Reorganisation);
(iii) any Financial Indebtedness of a company which becomes a member that is subordinated to the claims of the Group after Secured Parties under the date of this Agreement, where the Financial Indebtedness is incurred prior Finance Documents pursuant to a Subordination Deed or otherwise on terms that are acceptable to the date Agent (acting on which that company becomes a member the instructions of the Group if:
Majority Lenders (A) acting reasonably)), including the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the GroupExisting Subordinated Debts;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging)raised by the issue of redeemable shares which are held by another member of the Group;
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied described in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of "Financial Indebtedness) provided that " incurred in the ordinary course of business and for non-speculative purposes only and any guarantees granted in respect of such Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to Indebtedness;
(vi) aboveinsurance contracts in the form of financed insurance premiums in each case, in the ordinary course of business and other regular or customary activities; or
(vii) any other Financial Indebtedness the incurrence of which will not result in a breach of any of the financial conditions set out in Clause 20 (Financial Covenants) (calculated on a pro forma basis by reference to the consolidated financial statements of the Borrower most recently delivered to the Agent pursuant to the terms of this Agreement, and as if such Financial Indebtedness (and any other Financial Indebtedness incurred pursuant to this paragraph (vii) after the last day of the financial period covered by such financial statements) were incurred on the last day of such financial period) (and, for the avoidance of doubt, the aggregate outstanding principal amount of which across any Financial Indebtedness incurred pursuant to (i) any Finance Documents, (ii) the Group does not at any time exceed [***] Existing Facility and/or (or its equivalent in another currency or currenciesiii) the New Facility shall be included, and treated as Financial Indebtedness incurred pursuant to this paragraph (vii), for purposes of such calculation under this paragraph (vii)).
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (and the Company Borrower shall ensure that no other member of the Borrower Group will) incur (or agree to incur) or have outstanding any Financial IndebtednessIndebtedness or any Designated RPS.
(b) Paragraph (a) above does not apply to:
(i) up to the first Utilisation Date, Financial Indebtedness referred to in paragraph (b) respect of Clause 23.6 (Loans and guarantees)the Existing Facilities;
(ii) any Financial Indebtedness arising under the Finance Documents;
(iii) any Financial Indebtedness of a company which becomes a Internal Subordinated Debt (including any Guarantee in respect thereof issued by any member of the Borrower Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a constitutes Internal Subordinated Debt) and any External Subordinated Debt (including any Guarantee in respect thereof issued by any member of the Borrower Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Groupwhich constitutes External Subordinated Debt);
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) Designated RPS issued by any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) member of the definition of Financial Indebtedness) Borrower Group (provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does all such Designated RPS, without double counting, shall not at any one time exceed [***] S$1,000,000,000 (or its equivalent in another currency or currencies));
(v) any Incremental Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Incremental Indebtedness (provided the aggregate outstanding principal amount of (A) all such Incremental Indebtedness and Guarantees, without double counting and (B) the amount of Facility C Loans then outstanding, shall not at any one time exceed S$1,000,000,000 (or its equivalent in another currency or currencies));
(vi) any Mezzanine Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Mezzanine Indebtedness (provided the aggregate outstanding principal amount of all such Mezzanine Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$1,000,000,000 (or its equivalent in another currency or currencies));
(vii) any Permitted Aircraft/Watercraft Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Permitted Aircraft/Watercraft Indebtedness (provided the aggregate outstanding principal amount of all such Permitted Aircraft/Watercraft Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$300,000,000 (or its equivalent in another currency or currencies));
(viii) any Permitted FF&E Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Permitted FF&E Indebtedness (provided the aggregate outstanding principal amount of all such Permitted FF&E Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$500,000,000 (or its equivalent in another currency or currencies));
(ix) any Purchase Money Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Purchase Money Indebtedness (provided the aggregate outstanding principal amount of all such Purchase Money Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$30,000,000 (or its equivalent in another currency or currencies));
(x) any Permitted Refinancing Indebtedness or RP/CP Hivedown Refinancing Indebtedness;
(xi) any Financial Indebtedness owed by any member of the Borrower Group to another member of the Borrower Group;
(xii) to the extent that such incurrence does not result in the incurrence by any member of the Borrower Group of any obligation for the payment of Financial Indebtedness of others (other than other members of the Borrower Group), any Financial Indebtedness of a member of the Borrower Group incurred solely in respect of:
(A) performance bonds, completion guarantees, standby letters of credit or bankers’ acceptances, letters of credit in order to provide security for workers’ compensation claims, payment obligations in connection with self insurance or similar requirements, surety and similar bonds and statutory claims of lessors, licensees, contractors, franchisees or customers in each case to the extent the Financial Indebtedness in respect of such facilities are on terms more favourable than those under the Ancillary Facilities; and
(B) bonds securing the performance of judgments or a stay of process in proceedings to enforce a contested liability or in connection with any order or decree in any legal proceeding, provided that such Financial Indebtedness described in this sub-paragraph (xii) was incurred in the ordinary course of business of the member of the Borrower Group and the aggregate principal amount outstanding of all such Financial Indebtedness pursuant to this sub-paragraph (xii) does not at any one time exceed S$120,000,000 (or its equivalent in another currency or currencies);
(xiii) any Financial Indebtedness arising from any agreement entered into by any member of the Borrower Group providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred or assumed in connection with a sale, lease, transfer or other disposition of any asset permitted pursuant to paragraph (c) of Clause 22.5 (Disposals);
(xiv) any Financial Indebtedness in respect of derivative transactions entered into pursuant to Clause 22.8 (Hedging);
(xv) any Financial Indebtedness permitted by paragraph (b) of Clause 22.7 (Loans and guarantees);
(xvi) investments permitted pursuant to paragraph (b) of Clause 22.15 (Acquisitions and investments) to the extent they constitute Financial Indebtedness;
(xvii) any Financial Indebtedness of any member of the Borrower Group, to the extent constituting or covered by a guarantee, bond, letter of credit or other instrument issued under any Ancillary Facility; and
(xviii) any Financial Indebtedness existing on the date of this Agreement and listed in Schedule 12 (Existing Indebtedness), and any replacement, renewal, refinancing, refunding or extension of that Financial Indebtedness in whole or in part by the member of the Borrower Group that originally incurred such Financial Indebtedness except to the extent the principal amount of that Financial Indebtedness exceeds the amount stated in that Schedule.
(c) For the avoidance of doubt, nothing in paragraph (a) above shall prohibit the establishment by any member of the Borrower Group (whether as issuer or guarantor) of a medium term note programme (an “MTN Programme”) provided that the incurrence by a member of the Borrower Group of any Financial Indebtedness under any MTN Programme shall be subject to the provisions of this Clause 22.6.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (will, and the Company shall ensure each Obligor will procure that no other member of the Group Material Subsidiary will) , incur (or agree to incur) or have outstanding any Financial Indebtedness.Indebtedness other than:
(a) under the Finance Documents or Existing Facilities or the Existing Contingent Financial Liabilities or non-material contingent Financial Liabilities outstanding as at the date of this Agreement or uncommitted facilities, overdrafts, daylight overdrafts, intra-day facilities and facilities used for technical purposes (i.e. credit card programmes) outstanding as at the date of this Agreement;
(b) Paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred to in paragraph as permitted by Clause 19.17 (bFinancial guarantees) of or by Clause 23.6 19.19 (Loans and guaranteesout, Intra Group Loans);
(iic) Financial Indebtedness arising under the any Project Finance DocumentsIndebtedness;
(iiid) any Product Financing;
(e) any Existing Facilities Refinancings (including, for the avoidance of doubt, any VUE Bridge Refinancing and any UMO Refinancing);
(f) VUE Incremental Indebtedness (where an amount of up to U.S.$ 200,000,000 (or equivalent in other currencies) is applied in full forthwith towards repayment of (i) all VUE Loans, if any, made by VUHIC to VUE for working capital purposes to the extent required in accordance with Clause 19.19(j) (Loans out, Intra Group Loans) or (ii) the UCI Loan);
(g) any Local Borrowings;
(h) any Financial Indebtedness where an amount equal to the Net Proceeds of such indebtedness is applied forthwith in mandatory prepayment and cancellation of the Facility under Clause 7 (Prepayment and Cancellation);
(i) any Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior type referred to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition thereof entered into for the purposes of any transaction permitted under Clause 19.28(b);
(j) commercial paper issued (other than by a member of the Cegetel Group) in an aggregate principal amount of up to E50,000,000 (or equivalent in other currencies);
(k) in respect of which another member of the Group (including for the avoidance of doubt any member of the Cegetel Group) is the creditor as permitted in accordance with the terms of Clause 19.19 (Loans out, Intra Group Loans);
(l) an Equity Issue;
(m) in respect of any member of the Cegetel Group in an aggregate principal amount not to exceed at any time E3,000,000,000 (or equivalent in other currencies) (including no more than E800,000,000 to finance the acquisition referred to in Clause 19.18(b)(viii) (Mergers and acquisitions) (including no more than E300,000,000 of existing Financial Indebtedness in the entity acquired));
(n) under an intra-day facility entered into for cash management purposes in a maximum aggregate amount not to exceed E100,000,000 (or its equivalent in other currencies);
(o) subject to the other provisions of this Agreement, any other new borrowing which is unsecured and not guaranteed and which has an original scheduled maturity date falling no earlier than one year after the later of the Final Maturity Date and the original final maturity date of the Multicurrency Revolving Credit Facility;
(p) the VU/SIT Loan;
(q) Financial Indebtedness of the VUE Group arising out of TV satellite capital lease existing at the date of this Agreement (the monthly rent under such lease being U.S.$184,660, and the lease expiring in October 2003 with the Company having the option to purchase the transponder for the greater of U.S.$2,671,000 or its fair market value);
(r) any reimbursement or indemnification obligations (other than in respect of Financial Indebtedness) provided that arising in the ordinary course of business or indemnification obligations arising in respect of any appeal bond;
(s) any Financial Indebtedness arising from the honouring by a bank or other financial institution of a cheque, draft or similar instrument drawn against insufficient funds in the ordinary course of business; and
(t) any Financial Indebtedness of the type referred to in paragraphs paragraph (h) or (je) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling to the extent payable within paragraphs (i) to (vi) above, 180 calendar days from the aggregate outstanding principal amount time of which across the Group does not at any time exceed [***] (acquisition or its equivalent in another currency or currencies)possession.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (and the Company Borrower shall ensure that no other member of the Borrower Group will) incur (or agree to incur) or have outstanding any Financial IndebtednessIndebtedness or any Designated RPS.
(b) Paragraph (a) above does not apply to:
(i) up to the first Utilisation Date, Financial Indebtedness referred to in paragraph (b) respect of Clause 23.6 (Loans and guarantees)the Existing Facilities;
(ii) any Financial Indebtedness arising under the Finance Documents;
(iii) any Financial Indebtedness of a company which becomes a Internal Subordinated Debt (including any Guarantee in respect thereof issued by any member of the Borrower Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a constitutes Internal Subordinated Debt) and any External Subordinated Debt (including any Guarantee in respect thereof issued by any member of the Borrower Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Groupwhich constitutes External Subordinated Debt);
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) Designated RPS issued by any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) member of the definition of Financial Indebtedness) Borrower Group (provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does all such Designated RPS, without double counting, shall not at any one time exceed [***] S$1,000,000,000 (or its equivalent in another currency or currencies));
(v) any Incremental Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Incremental Indebtedness (provided the aggregate outstanding principal amount of (A) all such Incremental Indebtedness and Guarantees, without double counting and (B) the amount of Facility C Loans then outstanding, shall not at any one time exceed S$1,000,000,000 (or its equivalent in another currency or currencies));
(vi) any Mezzanine Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Mezzanine Indebtedness (provided the aggregate outstanding principal amount of all such Mezzanine Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$1,000,000,000 (or its equivalent in another currency or currencies));
(vii) any Permitted Aircraft/Watercraft Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Permitted Aircraft/Watercraft Indebtedness (provided the aggregate outstanding principal amount of all such Permitted Aircraft/Watercraft Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$300,000,000 (or its equivalent in another currency or currencies));
(viii) any Permitted FF&E Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Permitted FF&E Indebtedness (provided the aggregate outstanding principal amount of all such Permitted FF&E Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$500,000,000 (or its equivalent in another currency or currencies));
(ix) any Purchase Money Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Purchase Money Indebtedness (provided the aggregate outstanding principal amount of all such Purchase Money Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$30,000,000 (or its equivalent in another currency or currencies));
(x) any Permitted Refinancing Indebtedness or RP/CP Hivedown Refinancing Indebtedness;
(xi) any Financial Indebtedness owed by any member of the Borrower Group to another member of the Borrower Group;
(xii) to the extent that such incurrence does not result in the incurrence by any member of the Borrower Group of any obligation for the payment of Financial Indebtedness of others (other than other members of the Borrower Group), any Financial Indebtedness of a member of the Borrower Group incurred solely in respect of:
(A) performance bonds, completion guarantees, standby letters of credit or bankers' acceptances, letters of credit in order to provide security for workers' compensation claims, payment obligations in connection with self insurance or similar requirements, surety and similar bonds and statutory claims of lessors, licensees, contractors, franchisees or customers in each case to the extent the Financial Indebtedness in respect of such facilities are on terms more favourable than those under the Ancillary Facilities; and
(B) bonds securing the performance of judgments or a stay of process in proceedings to enforce a contested liability or in connection with any order or decree in any legal proceeding, provided that such Financial Indebtedness described in this sub-paragraph (xii) was incurred in the ordinary course of business of the member of the Borrower Group and the aggregate principal amount outstanding of all such Financial Indebtedness pursuant to this sub-paragraph (xii) does not at any one time exceed S$120,000,000 (or its equivalent in another currency or currencies);
(xiii) any Financial Indebtedness arising from any agreement entered into by any member of the Borrower Group providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred or assumed in connection with a sale, lease, transfer or other disposition of any asset permitted pursuant to paragraph (c) of Clause 22.5 (Disposals);
(xiv) any Financial Indebtedness in respect of derivative transactions entered into pursuant to Clause 22.8 (Hedging);
(xv) any Financial Indebtedness permitted by paragraph (b) of Clause 22.7 (Loans and guarantees);
(xvi) investments permitted pursuant to paragraph (b) of Clause 22.15 (Acquisitions and investments) to the extent they constitute Financial Indebtedness;
(xvii) any Financial Indebtedness of any member of the Borrower Group, to the extent constituting or covered by a guarantee, bond, letter of credit or other instrument issued under any Ancillary Facility; and
(xviii) any Financial Indebtedness existing on the date of this Agreement and listed in Schedule 12 (Existing Indebtedness), and any replacement, renewal, refinancing, refunding or extension of that Financial Indebtedness in whole or in part by the member of the Borrower Group that originally incurred such Financial Indebtedness except to the extent the principal amount of that Financial Indebtedness exceeds the amount stated in that Schedule.
(c) For the avoidance of doubt, nothing in paragraph (a) above shall prohibit the establishment by any member of the Borrower Group (whether as issuer or guarantor) of a medium term note programme (an “MTN Programme”) provided that the incurrence by a member of the Borrower Group of any Financial Indebtedness under any MTN Programme shall be subject to the provisions of this Clause 22.6.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Las Vegas Sands Corp)
Financial Indebtedness. (a) No Obligor shall Except as provided in paragraph (and the Company shall ensure that b) below, no other member of the Group will) may incur (or agree permit to incur) or have be outstanding any Financial IndebtednessIndebtedness or enter into any off-balance sheet financing arrangement.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans incurred under the Senior Finance Documents, the Securities and guarantees)any Bond Refinancing Debt;
(ii) any Financial Indebtedness arising of any person (the “acquired person”) acquired by a member of the Group after the First Drawdown Date which is incurred under arrangements in existence at the Finance Documentsdate of acquisition, but not incurred or increased or its maturity date extended in contemplation of, or since, that acquisition provided that notwithstanding anything else contained in this Agreement no member of the Group (excluding the acquired person and its Subsidiaries as at the date of acquisition) shall guarantee, indemnify or otherwise become liable for such Financial Indebtedness, provide Cash Cover in respect of or grant any Security Interest as security for such Financial Indebtedness;
(iii) any Financial Indebtedness under finance or capital leases of a company which becomes a member vehicles, plant, equipment or computers and any Financial Indebtedness under conditional sale agreements or other agreements for the acquisition of assets on deferred payment terms, provided that the aggregate capital value of all such assets so leased or acquired under outstanding leases or outstanding conditional sale agreements or agreements for the acquisition of assets by members of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was does not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Groupexceed €75,000,000;
(iv) any Financial Indebtedness Treasury Transaction permitted under Clause 23.19 pursuant to Subclause 23.13 (HedgingTreasury Transactions);
(v) any loan permitted under Subclause 23.14 (Loans out);
(vi) the loan of €125,000,000 by SPV B.V. made under the SPV B.V./Parent Loan Agreement;
(vii) guarantees permitted under Subclause 23.12 (Third party guarantees);
(viii) any Financial Indebtedness to the extent covered by a guarantee, bond Documentary Credit or a letter of credit or guarantee issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viiiix) any Financial Indebtedness (other than falling within paragraph (g) consisting of the definition of Financial IndebtednessRemaining Debt in an aggregate principal amount at any time outstanding not exceeding €190,000,000;
(x) provided that any Financial Indebtedness referred to under the Cash Pooling Facilities in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the an aggregate outstanding principal amount of which across the Group does not at any time not exceeding €60,000,000;
(xi) any Financial Indebtedness consisting of letters of credit and bank guarantees to support rental obligations, performance bonds or similar obligations;
(xii) any Financial Indebtedness required by the Structure Memorandum;
(xiii) any Financial Indebtedness incurred or outstanding pursuant to or in connection with a Permitted Receivables Securitisation; or
(xiv) in addition to the aforementioned, Financial Indebtedness of members of the Group which in aggregate does not exceed [***] (€50,000,000 or its equivalent in another currency or currencies)at any time.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor The Borrower shall (not, and the Company shall ensure that no other member of the Group will) incur (not permit any Subsidiary thereof to, create, incur, assume or agree allow to incur) or have remain outstanding any Financial Indebtedness., except:
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising created under the Finance Documents;
(iiib) Financial Indebtedness existing on the date hereof and set forth in the Disclosure Schedule;
(c) Financial Indebtedness of each Borrower to the Parent or any Subsidiary thereof and of any Subsidiary to the Parent, each Borrower or any other Subsidiary of Parent;
(d) Guarantees incurred in the ordinary course of business by each Borrower or any Subsidiary thereof of Financial Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of each Borrower or any other Subsidiary provided that the Indebtedness guaranteed is permitted to be incurred under this Agreement;
(e) Financial Indebtedness incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capitalised Lease Obligations and any Financial Indebtedness assumed in connection with the acquisition of any such assets or secured by a company which becomes a member of Lien on any such assets prior to the Group after the date of this Agreement, where the acquisition thereof; provided that (1) such Financial Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (2) the aggregate principal amount of Capitalised Lease Obligations and Indebtedness incurred pursuant to this clause (e) shall not exceed $25,000,000 at any time outstanding;
(f) Financial Indebtedness of any Person that becomes a Subsidiary of Borrower after the date on which hereof; provided that company (i) such Financial Indebtedness exists at the time such Person becomes a member of the Group if:
(A) the Financial Indebtedness was Subsidiary and is not incurred created in contemplation of or in connection with such Person becoming a Subsidiary, (ii) the Parent is in compliance, on a pro forma basis after giving effect to the acquisition of that companysuch Subsidiary with the covenants in Clause 24.1 and (iii) the aggregate principal amount of Financial Indebtedness incurred pursuant to this clause (f) shall not exceed $10,000,000 at any time outstanding;
(Bg) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] respect of that company becoming a member of the GroupHedging Agreements permitted pursuant hereto;
(ivh) any Financial Indebtedness permitted under Clause 23.19 of each Borrower or any Subsidiary in respect of letters of credit constituting reimbursement obligations (Hedgingi) with respect to letters of credit in respect of workers’ compensation claims or self insurance obligations, or (ii) obtained in the ordinary course of business so long as the aggregate amount of the reimbursement obligations (contingent or otherwise) in respect thereof is expressly limited to $7,000,000;
(i) Financial Indebtedness of each Borrower or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of Indebtedness for borrowed money);
(vj) any Financial Indebtedness to of each Borrower or any Subsidiary arising from the extent covered honouring by a guaranteebank or other financial institution of a check, bond draft or letter similar instrument drawn against insufficient funds in the ordinary course of credit issued under an Ancillary Facilitybusiness, provided that such Indebtedness is extinguished within five Business Days of its incurrence;
(vik) Permitted Existing Financial IndebtednessIndebtedness of Foreign Subsidiaries in an aggregate principal amount at any time outstanding not exceeding $25,000,000;
(viil) Financial Indebtedness arising from incurred by each Borrower or any Subsidiary representing deferred compensation to employees of each Borrower or any Subsidiary incurred in the issuance or issuances ordinary course of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecuredbusiness;
(Bm) Financial Indebtedness assumed pursuant to a Permitted Acquisition consummated after the date hereof in an aggregate amount not to exceed $10,000,000 at any time outstanding;
(n) Financial Indebtedness incurred by each Borrower or any Subsidiary in connection with any Permitted Acquisition consisting of obligations in respect of indemnification, the adjustment of the purchase price or similar adjustments;
(o) Financial Indebtedness consisting of obligations of each Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such bond ranks pari passu withPerson in connection with Permitted Acquisitions;
(p) Financial Indebtedness incurred by Borrower or any Subsidiary in respect of netting services, overdraft protections and similar arrangements in each case in connection with cash management and deposit accounts;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations of each Borrower or any Subsidiary thereof contained in supply arrangements, in each case, in the ordinary course of business;
(r) Refinancing Indebtedness of each Borrower or any Subsidiary thereof incurred in exchange for, or subordinated the net proceeds of which are used to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any refund, refinance or replace Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred of each Borrower to in paragraphs any Subsidiary thereof or of any Subsidiary to each Borrower or any other Subsidiary) that was permitted to be incurred under clause (ha), (b), (e), (f), (k), (m), (r) or (js), of this Clause 25.15;
(s) of Permitted Subordinated Indebtedness, without any limitation as to amount, so long as each Borrower and the definition of Subsidiaries are in Pro Forma Compliance;
(t) other Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) aboveof each Borrower or any Subsidiary thereof, the in an aggregate outstanding principal amount of which across the Group does not at any time exceed [***] outstanding pursuant to this Clause 25.15 not in excess of $15,000,000; and
(u) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or its equivalent in another currency or currencies)contingent interest on obligations described above.
Appears in 1 contract
Samples: Multicurrency Facility Agreement (Gulfmark Offshore Inc)
Financial Indebtedness. (a) 28.8.1 No Obligor shall (and the Company shall ensure that no other member of the Group will) incur (or agree allow to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) 28.8.2 Sub-clause 28.8.1 above does not apply to:
(ia) any Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising incurred under the Finance Documents;
(iiib) any Existing Financial Indebtedness and any refinancing thereof (to the extent the aggregate amount outstanding is not increased as a result of a company which becomes a or pursuant to the refinancing);
(c) trade credit in the ordinary course of trading;
(d) Financial Indebtedness to the extent owed by one member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a another member of the Group;
(ive) any Financial Indebtedness permitted under not otherwise described in this sub-clause 28.8.2 to the extent it is (i) required to be applied in prepayment and cancellation of the Facilities pursuant to sub-clause 12.2.1 to 12.2.4 inclusive of Clause 23.19 12.2 (HedgingMandatory prepayment and Cancellation out of certain proceeds) or (ii) is applied in voluntary prepayment and cancellation of the Facilities pursuant to Clause 11 (Illegality, Voluntary Prepayment and Cancellation);
(vf) a derivative transaction entered into in the ordinary course of treasury operations and not for speculative purposes;
(g) Financial Indebtedness incurred with the consent of the Majority Lenders;
(h) any Financial Indebtedness of New River or its Subsidiaries existing at the time of the Acquisition (and any refinancing thereof (to the extent covered by that the aggregate amount outstanding is not increased as a guaranteeresult of or pursuant to the refinancing)) if that Financial Indebtedness was not created in contemplation of the Acquisition and (other than in relation to the New River Convertible Bond), bond or letter if that Financial Indebtedness is repaid within six months of credit issued under an Ancillary Facilitythe Acquisition;
(vii) any Permitted Existing Financial IndebtednessSecuritisation;
(viij) Financial Indebtedness arising from unsecured loan notes issued by any member of the issuance Group (including unsecured loan notes guaranteed by the Company and issued by another member of the Group) pursuant to a loan note alternative to an offer which complies with all of the following conditions: (i) the offer is an offer made by or issuances on behalf of one a member of the Group to acquire (inter alia) all the ordinary shares in a public company which are not owned by the offeror or more convertible by any member of the Group, or regular bonds a scheme of arrangement proposed by such a public company for a corresponding purpose; (ii) the offer is for cash consideration or includes a cash alternative; and (iii) the offer is subject to and complies with the UK Takeover Code or any law or regulation which replaces it provided that such loan notes will only fall within this sub-paragraph (j) to the extent that the aggregate principal amount outstanding of such loan notes at any time does not exceed an amount equal to the aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any of the Available Commitments of all the Revolving Facility Lenders under the Revolving Facility at such bond issued is unsecuredtime;
(Bk) any until such bond ranks pari passu with, time as (i) all amounts outstanding under or subordinated in respect of Facility A and Facility B have been repaid in full and (ii) to the Facilities; and
(C) extent that the proceeds are applied Total Revolving Facility Commitments have been reduced to US$500,000,000 in accordance with Clause 9.5 subclause 12.2 (Capital Market Issue ProceedsMandatory prepayment and cancellation out of certain proceeds) and Clause 9.8 other Financial Indebtedness, the principal amount of which (Application when aggregated with the principal amount of Capital Market Issue Proceedsany other Financial Indebtedness incurred by any member of the Group other than any permitted under paragraphs (a) to (j) above) does not, at any time, exceed US$200,000,000 (or its equivalent in another currency or currencies); and
(viiil) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs following (i) the repayment in full of all amounts outstanding under Facility A and Facility B and (ii) the reduction of the Total Revolving Facility Commitments to US$500,000,000 (viin accordance with subclause 12.2 (Mandatory prepayment and cancellation out of certain proceeds), subclause 11.2 (Voluntary Cancellation) aboveor subclause 11.3 (Voluntary Prepayment of Loans)) other Financial Indebtedness, the aggregate outstanding principal amount of which across (when aggregated with the principal amount of any other Financial Indebtedness incurred by any member of the Group other than any permitted under paragraphs (a) to (j) above) does not not, at any time time, exceed [***] US$500,000,000 (or its equivalent in another currency or currencies).
Appears in 1 contract
Samples: Facilities Agreement (Shuttle Corp)
Financial Indebtedness. (a) No Obligor Except as permitted under paragraph (b) below, no Loan Party shall (and the Company Parent shall ensure that no other member of the Group Restricted Subsidiary will) incur (or agree to incur) or have outstanding Incur any Financial Indebtedness (including Acquired Financial Indebtedness) other than Financial Indebtedness permitted under paragraph (b) below.
(b) Paragraph (a) above does not apply toto Financial Indebtedness which is:
(i) Incurred after the date of this Agreement if on the date of such Incurrence and after giving pro forma effect thereto (including pro forma application of the proceeds thereof) the ratio of Adjusted Total Secured Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)Consolidated EBITDA does not exceed 2.0:1;
(ii) Financial Indebtedness arising under Incurred pursuant to any Existing Credit Facilities Agreement in force on the date of this Agreement or the Finance DocumentsDocuments which, for the avoidance of doubt, shall not exceed the maximum amount capable of being Incurred under all such Existing Credit Facilities Agreements or the Finance Documents on the date hereof) and any Guarantee Obligations in respect of such Financial Indebtedness;
(iii) Financial Indebtedness represented by the Senior Notes including any Guarantee Obligations in respect thereof;
(iv) Guarantee Obligations of the Parent or any Restricted Subsidiary of Financial Indebtedness of a company which becomes the Parent or any Loan Party so long as the Incurrence of such Financial Indebtedness is permitted under this Clause 23.21 or arises under any performance or similar bond guaranteeing the performance by a member of the Group after under any contract entered into in the date ordinary course of this Agreementtrade or the endorsement of a negotiable instrument in the ordinary course of trade or arises under any Permitted Guarantee;
(v) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes) for the purpose of limiting interest-rate risk, where exchange-rate risk or commodity-pricing risk arising in the Financial Indebtedness is incurred prior ordinary course of trade but not for investment or speculative purposes (as determined in good faith by the board of directors or senior management or the Parent);
(vi) arising under a loan by a Loan Party to the date on which that company becomes another Loan Party or made by a member of the Restricted Group ifwhich is not a Loan Party to a member of the Restricted Group;
(vii) arising under a loan by a Loan Party to a member of the Restricted Group which is not a Loan Party so long as the aggregate amount of Financial Indebtedness under any such loans (excluding loans in respect of payments for goods and services provided) shall not exceed USD 25,000,000 at any time;
(viii) Financial Indebtedness represented by Finance Lease Obligations or Purchase Money Obligations in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Financial Indebtedness Incurred at the time of Incurrence is permitted under paragraph (b)(i) above and paragraph (o) of the definition of “Permitted Security”; or
(ix) at any person acquired by the Parent or a Restricted Subsidiary after the Closing Date which is Incurred under arrangements in existence at the date of acquisition but not Incurred or increased or having its maturity date extended in contemplation or since that acquisition and outstanding only for a period of three months following the date of the acquisition, provided that in the case of any item referred to in paragraphs (b)(i) to (ix) above:
(A) the financial covenants referred to in Clause 22.2 (Financial condition) will not be breached if recalculated on a proforma basis as if such Financial Indebtedness was not incurred in contemplation had been Incurred at the beginning of the acquisition Relevant Period, in respect of that companywhich such financial covenants were last tested;
(B) to the extent such Financial Indebtedness is repaidsecured by Security or Quasi-Security, prepaid the Security or cancelled in full within [***] of that company becoming a member Quasi-Security is permitted under paragraph (d), (e), (n) or (o) of the Groupdefinition of “Permitted Security”;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied amount of Financial Indebtedness outstanding from India Business Companies will not exceed USD 90,000,000 (or its equivalent in accordance with Clause 9.5 (Capital Market Issue Proceedsother currencies) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Security or Quasi-Security for such Financial Indebtedness (other than falling within is permitted under paragraph (gn) of the definition “Permitted Security” and, if applicable, paragraph (o) or paragraph (p) of the definition of “Permitted Security”;
(D) Financial IndebtednessIndebtedness owed by a Loan Party to another member of the Group or a Holding Company will be subordinated to all claims of the Finance Parties against such Loan Parties; and
(E) provided that any Material Company which is neither a Loan Party nor an Indian Business Company may only Incur Financial Indebtedness referred to in paragraphs (b)(iv) (excluding Guarantee Obligations of any Financial Indebtedness referred to in paragraphs (hi), (ii) or (jiii) above), (v), (vi), (vii), (viii) (to the extent that Financial Indebtedness of the type falling within paragraph (viii) of the definition of Financial Indebtedness shall only be counted once for this purposesuch Material Companies does not exceed USD 1,000,000 in aggregate) not falling within paragraphs or (i) to (viix) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies).
Appears in 1 contract
Financial Indebtedness. (a) No Except as permitted under paragraph (b) below, no Obligor shall (shall, and the Company shall ensure procure that no other member of the Group will) , incur (or agree to incur) or have outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply toto Financial Indebtedness:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)arising under any Finance Document;
(ii) Financial Indebtedness arising under the Finance Documents;
(iii) any Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond Bank Guarantee or a letter of credit credit, guarantee or similar instrument issued under an Ancillary Facility;
(iii) arising under a foreign exchange transaction for spot or forward delivery or interest hedging transaction entered into in connection with protection against fluctuation in currency or interest rates where the exposure arises in the ordinary course of trade or in respect of Utilisations, but not under a transaction for investment or speculative purposes;
(iv) arising under loans or guarantees expressly permitted pursuant to paragraph (b) of Clause 26.9 (Loans out) or paragraph (b) of Clause 26.10 (Guarantees out);
(v) incurred by the Company or any Permitted Financial Indebtedness Subsidiaries if the Leverage Ratio for the most recent Testing Period was less than or equal to 3.00:1 (in the financial year 2011) or 2.50:1 (in any Testing Period thereafter) as determined on the basis of the most recent financial statements delivered in accordance with Clause 24.1 (Financial statements) after taking into account the effect of the relevant Financial Indebtedness on a pro forma basis for the relevant Testing Period, provided that the net proceeds resulting from such Financial Indebtedness are directly on-lent to the Company, a Permitted Financial Indebtedness Subsidiary or an Unlimited Guarantor;
(vi) arising under the Initial Bond, provided that the net proceeds resulting from the Initial Bond are directly on-lent to the Company, a Permitted Existing Financial IndebtednessIndebtedness Subsidiary or an Unlimited Guarantor;
(vii) arising under any additional bonds or other instruments issued by the Company or any Permitted Financial Indebtedness arising Subsidiaries, provided that the net proceeds resulting from such additional bonds or other instruments are directly on-lent to the issuance Company, a Permitted Financial Indebtedness Subsidiary or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided thatUnlimited Guarantor and (after such proceeds may have been further on-lent) used:
(A) any such bond issued is unsecured;to finance acquisitions permitted pursuant to paragraph (b) of Clause 26.6 (Acquisitions); or
(B) any such bond ranks pari passu with, or subordinated to reduce the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); andTotal Facility A Commitments;
(viii) of any Financial Indebtedness (other than falling within paragraph (g) person acquired by a member of the definition Group after the Signing Date which is incurred under arrangements in existence at the date of Financial Indebtednessthe acquisition, but not incurred or increased or its maturity date extended in contemplation of, or since, that acquisition, and outstanding only for a period of nine (9) months following the date of acquisition;
(ix) under finance or capital leases, provided that any Financial Indebtedness referred to in paragraphs (h) or (j) the aggregate capital value of the definition of Financial Indebtedness shall only be counted once for all items so leased under outstanding leases permitted under this purpose) not falling within paragraphs (i) to paragraph (vi) above, the aggregate outstanding principal amount by members of which across the Group does not at any time exceed [***] EUR 15,000,000 (or its equivalent in another currency or currencies)) at any time;
(x) incurred with the prior written consent of the Majority Lenders; or
(xi) not permitted by paragraphs (i) to (x) above where the outstanding principal amount of all indebtedness incurred in reliance on this paragraph (xi) does not exceed EUR 60,000,000 (or its equivalent in another currency or currencies) at any time.
Appears in 1 contract
Samples: Multicurrency Revolving Credit and Bank Guarantee Facilities (Elster Group SE)
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that Except as provided below, no other member of the Group will) may incur (or agree permit to incur) or have outstanding subsist any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred incurred under this Agreement (including under any Ancillary Facility) or the Subordinated Intercompany Loan Agreement, in force as at the date hereof, and subject to in paragraph Clause 23.37 (b) Capitalisation of Clause 23.6 (Loans and guaranteesthe Subordinated Intercompany Loan);
(ii) any Financial Indebtedness arising of any person acquired by a member of the Group which is incurred under arrangements in existence at the Finance Documentsdate of acquisition, but only for a period of 6 months from the date of acquisition and not established in contemplation of that acquisition;
(iii) any Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
derivative transaction permitted under Clause 23.24 (A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the GroupTreasury transactions);
(iv) any Financial Indebtedness loan permitted under Clause 23.19 23.25 (HedgingLoans out);; 87
(v) any Financial Indebtedness to the extent covered by a guarantee, bond Letter of Credit or letter of credit issued under an Ancillary Facility;; or
(vi) Permitted Existing Financial Indebtedness not otherwise permitted under the preceding sub-paragraphs which in aggregate does not exceed L10,000,000 or its equivalent at any time.
(c) The Company will procure that neither Enodis plc nor Topco will incur any Financial Indebtedness, other than:
(i) in the case only of Enodis plc, any Financial Indebtedness evidenced by Bonds or Bond Exchange Notes issued by Enodis plc in compliance with Clauses 23.28 (Bridge Loans, Bonds and Exchange Notes) and any refinancing thereof provided that such refinancing is on terms materially no more onerous than the Bonds or Bond Exchange Notes and 23.25(v) (Loans out);
(viiii) Financial Indebtedness arising from in the issuance or issuances case only of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu withEnodis plc, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness incurred under the Bridge Facility or under the Bridge Exchange Notes; or
(other than falling within paragraph (giii) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies)between Enodis plc and Topco.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (and the The Company shall ensure that no Group Company (other member than a Sappi Manufacturing Group Company and each of Sappi International SA, the Group willCompany and the Borrower (for so long as such entity is an Obligor)) shall incur (or agree to incur) or have outstanding any Financial Indebtedness other than Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness under any Finance Document or referred to in paragraph Schedule 10 (b) of Clause 23.6 (Loans and guaranteesExisting External Indebtedness);
(ii) Financial Indebtedness arising under the Finance Documents;
(iii) any Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation respect of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid any derivative or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness hedging transaction permitted under pursuant to Clause 23.19 21.17 (Hedging);
(viii) incurred pursuant to any sale and leaseback transaction where the aggregate principal amount of Financial Indebtedness to the extent covered which all such sale and leaseback transactions relate does not exceed Euro 100,000,000 (or its equivalent in any currency or currencies) at any time;
(iv) arising in circumstances permitted in Clause 21.13 (Loans and Guarantees);
(v) of any person acquired by a guaranteeGroup Company after the date of this Agreement which is incurred under arrangements in place at the date of acquisition but not incurred or increased or having its maturity date extended in contemplation of, bond or letter since, that acquisition, and outstanding only for a period of credit issued under an Ancillary Facilityno longer than three months following the date of acquisition;
(vi) Permitted Existing Financial Indebtednessraised under any current account, overdraft, letter of credit, foreign exchange, SWIFT, and BACS facilities made available by local banks, the aggregate principal amount of which does not exceed Euro 100,000,000 (or its equivalent in any currency or currencies) at any time;
(vii) Financial Indebtedness arising from under any cash pooling or management agreement in the issuance or issuances ordinary course of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecuredbanking arrangements for the purpose of netting debt and credit balances between Group Companies;
(Bviii) any such bond ranks pari passu withuntil the date of the first Utilisation of the RCF Facility, under the Existing RCF Facility;
(ix) arising under the New Financings or subordinated the loan by PE Paper Escrow GmbH to the FacilitiesBorrower of the proceeds of the Bonds and to the extent not already included within paragraph (a)(x) below, the Available Financings;
(x) arising under any invoice discounting, factoring or securitisation arrangement where the aggregate principal amount of Financial Indebtedness raised under all such invoice discounting, factoring or securitisation arrangements does not exceed Euro 600,000,000 at any time;
(xi) arising under finance leases, the aggregate principal amount of which does not exceed Euro 50,000,000 (or its equivalent in any currency or currencies) at any time;
(xii) arising under forward sale agreements, deferred purchase agreements and deferred payment arrangements entered into pursuant to an employee share option scheme, unit trust or management incentive scheme; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purposexiii) not falling within included in paragraphs (i) to (vixii) above, the aggregate outstanding principal amount of above inclusive but which across the Group does not at any time exceed [***] exceed, for the Group, Euro 25,000,000 (or its equivalent in another any currency or currencies)) in aggregate principal amount at any time.
Appears in 1 contract
Samples: Facility Agreement (Sappi LTD)
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that no other member of the Group willwhich is not an Obligor (a "Non-Obligor") shall incur (or agree allow to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred in respect of intra-Group loans made available by an Obligor to in paragraph (b) another member of Clause 23.6 (Loans and guarantees)the Group that is not an Obligor;
(ii) subject to Clause 21.16 (Guarantors), any Financial Indebtedness arising under incurred pursuant to the Finance DocumentsRBL Facility Agreement, the RCF, the High Yield Notes, the IG Notes, the Target Senior Bonds and or Target Hybrid Bonds;
(iii) any Financial Indebtedness in relation to cash collateralised letters of a company which becomes a member credit and performance bonds issued on behalf of the Group after the date of this Agreementany Non-Obligor, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
not exceeding U.S.$100,000,000 (Aor its equivalent in any other currency or currencies) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Groupaggregate;
(iv) any Financial Indebtedness permitted incurred under Clause 23.19 (Hedging)any Hedging Agreement;
(v) any Financial Indebtedness incurred under commercial payment card facilities entered into by members of the Group, subject to the extent covered by a guarantee, bond an aggregate cap of U.S.$3,000,000 (or letter of credit issued under an Ancillary Facilityits equivalent in any other currency or currencies);
(vi) Permitted Existing any Financial IndebtednessIndebtedness incurred under any financing in relation to an acquisition permitted under this Agreement, in an amount not exceeding U.S.$500,000,000 (or its equivalent in other currency or currencies) in aggregate, subject to intercreditor or other subordination agreements being put in place between the Lenders and the providers of such Financial Indebtedness which are satisfactory to the Majority Lenders (acting reasonably);
(vii) any Financial Indebtedness arising from incurred pursuant to section 8a of the issuance German Partial Retirement Act (Altersteilzeitgesetz) or issuances section 7e of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
the Fourth Book of the German Social Code (A) any such bond issued is unsecuredSozialgesetzbuch IV);
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any other Financial Indebtedness (other than falling within paragraph (g) which has been incurred with the prior approval of the definition of Financial IndebtednessMajority Lenders; and
(ix) provided that any other Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) Group not falling within paragraphs (i) to (viviii) above, the aggregate outstanding principal amount of which across the Group does above not at any time exceed [***] exceeding U.S.$100,000,000 (or its equivalent in another any other currency or currencies)) in aggregate.
Appears in 1 contract
Samples: Bridge Facility Agreement
Financial Indebtedness. (a) No 25.6.1 Except as provided in Clause 25.6.2, no Obligor may, and each Obligor shall (and the Company shall ensure procure that no other member of the Group will) shall, at any time incur (or agree to incur) or have outstanding any Financial Indebtedness.
(b) Paragraph (a) above 25.6.2 Clause 25.6.1 does not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising under the Finance Documents;
(iiiA) any Financial Indebtedness of a company which becomes a member of incurred under the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecuredFinance Documents or;
(B) any Financial Indebtedness accruing under the $81,250,000 convertible senior notes due 2012 of Endeavour International Corporation and any Financial Indebtedness incurred under any arrangement (“refinancing arrangements”) entered into for the purposes of refinancing and repaying the Financial Indebtedness incurred under such bond ranks pari passu with, or subordinated convertible senior notes (provided that (i) the aggregate principal amount of the Financial Indebtedness under such refinancing arrangements and (to the Facilities; andextent that the Financial Indebtedness incurred under such convertible senior notes is only refinanced in part) any outstanding Financial Indebtedness under such convertible senior notes, does not exceed $81,250,000 and (ii) no payments of principal are payable under the refinancing arrangements before the Final Maturity Date);
(C) Financial Indebtedness incurred under any Permitted Hedging Agreement or any guarantee given by a member of the proceeds are applied Group in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application respect of Capital Market Issue Proceeds); anda Permitted Hedging Agreement;
(viiiD) any Financial Indebtedness owed by an Obligor to another Obligor;
(other than falling within paragraph (gE) of the definition of Financial Indebtedness) provided that any Financial Indebtedness which is subordinated to amounts due to the Finance Parties under the Finance Documents pursuant to a subordination agreement approved by the Majority Lenders;
(F) any Financial Indebtedness incurred under the $40,000,000 11.5% unsecured convertible loan notes due 2014 issued by Endeavour Energy Luxembourg S.a.r.l (provided that no payments of interest or principal under such notes are payable before the Final Maturity Date);
(G) any Financial Indebtedness incurred under the First Lien Credit Agreement provided that the aggregate principal amount of the Financial Indebtedness under the First Lien Credit Agreement does not exceed $225,000,000;
(H) any Financial Indebtedness incurred under the subordinated loan note issued by the Company referred to in paragraphs (h) or (j) of the definition of waiver letter dated 16 November 2009 between BNP Paribas and the Obligors entered into pursuant to the First Lien Credit Agreement provided that such Financial Indebtedness shall only be counted once for this purposeis incurred and repaid in accordance with the terms of such waiver letter;
(I) not falling within paragraphs (iany Financial Indebtedness incurred other than under Clauses 25.6.2(A) to (vi25.6.2(H) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (in aggregate) $10,000,000 (or its equivalent in another currency one or more other currencies); and
(J) any other Financial Indebtedness incurred with the prior consent of the Majority Lenders.
Appears in 1 contract
Samples: Junior Credit Agreement (Endeavour International Corp)
Financial Indebtedness. (a) No Obligor party hereto shall, and each Obligor party hereto shall (and the Company shall ensure procure that no other member of the Group will) , incur (or agree to incur) or have outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)incurred under any Finance Document;
(ii) Financial any Indebtedness arising under for Borrowed Money owing by a member of the Finance DocumentsGroup (that is not an Obligor) to a member of the Group (that is not an Obligor), provided that if there is any difference between the Borrower’s direct or indirect ownership (expressed as a percentage) in the equity capital of such first-mentioned member of the Group and the Borrower’s direct or indirect ownership (expressed as a percentage) in the equity capital of such latter-mentioned member of the Group, such Indebtedness for Borrowed Money is on arm’s length terms;
(iii) any Financial Indebtedness for Borrowed Money of a company which becomes a any member of the Group that is subsisting as at the date of this Agreement and set out in Schedule 7 (Existing Indebtedness), provided that the aggregate principal amount of such Indebtedness for Borrowed Money does not exceed the amount set out (in respect of such Indebtedness for Borrowed Money) in Schedule 7 (Existing Indebtedness) and is not increased at any time after the date of this Agreement, where ;
(iv) any Indebtedness for Borrowed Money of any member of the Financial Indebtedness Target Group that is incurred prior to subsisting as at the date on which that company time when the Target becomes a member of the Group if:
(A) Group, provided that the Financial aggregate principal amount of such Indebtedness was for Borrowed Money is not incurred in contemplation of increased at any time after the acquisition of that company;
(B) time when the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming Target becomes a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered for Borrowed Money incurred by a guarantee, bond or letter member of credit issued under an Ancillary Facility;
the Group (vi“Refinancing”) Permitted Existing Financial Indebtedness;
(vii) Financial to refinance any Indebtedness arising from for Borrowed Money of such member of the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than Group falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (hb)(iii) or (jb)(iv) (the “Refinanced Financial Indebtedness”), provided that (A) the aggregate principal amount of such Refinancing does not exceed the definition outstanding principal amount of such Refinanced Financial Indebtedness shall only be counted once for this purposeso refinanced and is not increased at any time after the first incurrence of such Refinancing, (B) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across such Refinanced Financial Indebtedness is permanently reduced by the aggregate principal amount of such Refinancing promptly upon the incurrence of such Refinancing and (C) such Refinancing is incurred by the same member of the Group does that has incurred such Refinanced Financial Indebtedness;
(vi) any Indebtedness for Borrowed Money incurred by an Onshore Group Member provided that such incurrence would not at result in any time exceed [***] non-compliance with Clause 20.2 (Financial condition);
(vii) any currency and/or interest rate hedging entered into by any Obligor with respect to the Facility;
(viii) any Treasury Transaction entered into by any Onshore Group Member on arm’s length terms to hedge exposures arising in the ordinary course of business and not for speculative purposes; and
(ix) any Indebtedness for Borrowed Money incurred by any member of the Group (other than an Onshore Group Member) where all of the proceeds of such Indebtedness for Borrowed Money are applied in prepayment of the Facility in accordance with Clause 8.2 (Application of mandatory prepayments), provided that (in the case of any such Indebtedness for Borrowed Money incurred by the Offeror) all of the Loan(s) shall be prepaid in full and all other amounts outstanding under the Finance Documents will be repaid in full pursuant to such prepayment and no Finance Party shall be under any obligation (actual or its equivalent in another currency or currencies)contingent) to make available any further Loan following such prepayment.
Appears in 1 contract
Financial Indebtedness. The Borrower will not, and will not permit any of its Subsidiaries to, contract, create, incur, assume or suffer to exist any Financial Indebtedness, except that:
(a) No Obligor shall (The Borrower and each Subsidiary Guarantor may incur and remain liable for the Financial Indebtedness incurred pursuant to this Agreement and the Company shall ensure that no other member of the Group will) incur (or agree to incur) or have outstanding any Financial Indebtedness.Credit Documents;
(b) Paragraph (a) above does not apply to:
(i) the Borrower and each Subsidiary Guarantor may incur and remain liable for intercompany Financial Indebtedness referred permitted pursuant to in paragraph Section 8.05(b) and the Borrower’s Subsidiaries (bother than any Subsidiary Guarantor) of Clause 23.6 (Loans may incur and guaranteesremain liable for intercompany Financial Indebtedness permitted pursuant to Section 8.05(d);
(c) the Borrower and each Subsidiary Guarantor may incur Financial Indebtedness in connection with the purchase of ballast water treatment equipment for any vessel owned by the Borrower or any of its Subsidiaries; provided that (i) the terms and conditions of such Financial Indebtedness shall be reasonably satisfactory to the Administrative Agent and (ii) the aggregate principal amount of Financial Indebtedness arising under the Finance Documentsincurred pursuant to this Section 8.04(b) shall not exceed $1,000,000 in respect of each Collateral Vessel;
(iiid) any the Borrower and each Subsidiary Guarantor may remain liable for Financial Indebtedness of a company which becomes a member of in connection with the Group after the date of this Other Loan Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any and other Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilitieshereunder and set forth on Schedule VIII hereto; and
(Ce) the proceeds are applied in accordance with Clause 9.5 Borrower (Capital Market Issue Proceedsbut not any Subsidiary Guarantor) may incur and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any remain liable for Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for not otherwise permitted under this purpose) not falling within paragraphs Section 8.04 so long as (i) no Default or Event of Default exists at the time of such incurrence and after giving effect thereto and (ii) the Borrower and its Subsidiaries shall be in pro forma compliance with the Financial Covenants both before and after giving effect to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies)such Financial Indebtedness.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (and the The Company shall ensure that no other member of the Group will) incur (shall incur, create or agree permit to incur) subsist or have outstanding any Financial Indebtedness.
(b) The Company shall ensure that no member of the Group shall:
(i) incur, create or permit to subsist or have outstanding any guarantee or indemnity in respect of any indebtedness for monies borrowed by any Non-Recourse Entity; or
(ii) give any legally binding commitments in relation to a Non-Recourse Entity to make funding arrangements for the purpose of meeting such Non-Recourse Entity’s liabilities during the operational phase of a Non-Recourse Transaction.
(c) Paragraph (a) above does not apply toto any:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)arising under or permitted by the Finance Documents;
(ii) Financial Indebtedness incurred by a Non-Recourse Entity arising under the Finance Documentsany Non-Recourse Transactions;
(iii) any Financial Indebtedness arising under the $9,600,000 loan made between the Fujairah Petroleum Company LLC as lender and VTTI Fujairah Terminals Ltd (VTTI FTL) FZC (previously Fujairah Refinery Company Limited);
(iv) Financial Indebtedness existing between members of the Group provided that Financial Indebtedness owed by members of the Group (other than Non-Recourse Entities) to Non-Recourse Entities shall, to the extent that it exceeds EUR10,000,000 (or its equivalent), be subordinated to the Loans on terms satisfactory to the Agent (acting reasonably) but, notwithstanding the foregoing, on the basis that payments (of principal, interest or otherwise) with respect to such Financial Indebtedness shall be permitted prior to the occurrence of an Acceleration Event;
(v) Financial Indebtedness of a company which becomes any person acquired by a member of the Group after the date of this Agreement, where the Financial Indebtedness Agreement which is incurred prior to under arrangements in existence at the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was acquisition, but not incurred or increased or having its maturity date extended in contemplation of, or since, that acquisition, and outstanding only for a period of six Months following the acquisition date of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facilityacquisition;
(vi) Permitted Existing Financial IndebtednessSubordinated Debt;
(vii) Financial Indebtedness arising from under or in connection with a foreign exchange transaction for spot or forward delivery entered into in connection with protection against fluctuation in currency rates where that foreign exchange exposure arises in the issuance ordinary course of trade but not a foreign exchange transaction for investment or issuances of one speculative purposes or more convertible otherwise arising under or regular bonds incurred in connection with an aggregate maximum subscription amount other hedging transactions not exceeding EUR [***] provided that:
(A) any such bond issued is unsecuredprohibited by the Finance Documents;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness arising under or in respect of a Permitted Guarantee;
(other than falling within paragraph (gix) Financial Indebtedness arising under a finance or capital leases of vehicles, plant, equipment or computers, and any refinancing of the definition of Financial Indebtedness) same, in each case provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate capital value of all such items so leased under outstanding principal amount leases by members of which across the Group does not exceed EUR5,000,000 (or its equivalent in other currencies) at any time;
(x) Financial Indebtedness arising in respect of deferred consideration for any acquisition not prohibited by the terms of this Agreement;
(xi) Financial Indebtedness arising under any local banking facilities provided that the aggregate amount outstanding under all such facilities does not exceed EUR5,000,000 at any time;
(xii) Financial Indebtedness arising in connection with any cash pooling arrangement not prohibited by the terms of this Agreement;
(xiii) Financial Indebtedness arising in respect of performance bonds, bid bonds, completion guarantees and similar obligations incurred by any member of the Group in the ordinary course of its trade;
(xiv) Financial Indebtedness arising under any indemnity, adjustment of purchase price or similar obligation granted or incurred in connection with a disposal permitted by this Agreement or an acquisition not prohibited by the terms of this Agreement;
(xv) Financial Indebtedness incurred by a member of the Group arising under any issuance of bonds, notes, debentures or similar instruments on a debt capital market provided that (a) the aggregate amount of proceeds net of all costs and taxes incurred in relation thereto (“Issuance Proceeds”) of all such issuances do not exceed USD400,000,000 (or its equivalent, calculated at the time of receipt, in another currency or other currencies) from the date of this Agreement and (b) the relevant bonds, notes, debentures or other similar instruments have a maturity date no earlier than the Termination Date;
(xvi) Financial Indebtedness arising under any Non-Credit Replacing Guarantee provided that the aggregate face value of all Non-Credit Replacing Guarantees does not exceed [***] EUR200,000,000 at any time; or
(xvii) unsecured Financial Indebtedness not falling within sub-paragraphs (b)(i) to (xvi) above if the aggregate amount does not exceed EUR20,000,000 (or its equivalent in another currency or currencies)) at any time.
Appears in 1 contract
Samples: Facility Agreement
Financial Indebtedness. Restriction on the incurrence of Financial Indebtedness by Group. Permitted exceptions to include (a) No Obligor shall (and the Company shall ensure that no other member of the Group will) incur (or agree to incur) or have outstanding any Financial Indebtedness.
(b) Paragraph (a) above does but not apply limited to:):
(i) Financial Indebtedness referred indebtedness of any person acquired by the Group (or indebtedness attaching to the assets of such person) pursuant to a Permitted Acquisition (whether secured on pari passu basis with the Facility or on a junior basis or senior unsecured, guaranteed or unguaranteed) subject to compliance of the financial covenants then required as of the last day of the most recently ended Relevant Period (pro forma for such incurrence, full utilisation of and application of proceeds of such indebtedness), which is in existence at the time of acquisition and not incurred or increased in contemplation of the acquisition and is discharged within 4 months of completion of the acquisition unless otherwise permitted to remain outstanding pursuant to another paragraph (b) of Clause 23.6 (Loans and guaranteesthis definition);
(ii) Financial Indebtedness arising (A) indebtedness between members of the Group, (B) group cash pooling and daylight exposures under the Finance Documents;ordinary course banking and treasury activities, (C) vendor financing and (D) deferred consideration in connection with acquisitions (earn-outs or similar arrangements and deposits held on behalf of clients shall not be considered indebtedness); and
(iii) any Financial Indebtedness Permitted Additional Debt (provided that, the outstanding principal amount of a company which becomes a member such Permitted Additional Debt, when aggregated with outstanding principal amount of the Permitted PRC Indebtedness, shall not exceed US$45,000,000 (or its equivalent));
(iv) any Refinancing Indebtedness;
(v) any secured or unsecured financial indebtedness of any Group Member in the PRC, provided that the Net Leverage Ratio of the Group would be complied with if recalculated on a pro forma basis, after giving effect to the incurrence of such financial indebtedness, full utilisation of and application of proceeds of such indebtedness for the most recent Test Date as at the date of this Agreementon which such Financial Indebtedness is incurred, where the provided that if such Financial Indebtedness is incurred prior to the date on which First Test Date, the maximum Net Leverage Ratio for that company becomes a member most recent Relevant Period shall be deemed to be the maximum Net Leverage Ratio permitted under the section entitled “Financial covenants” as at the First Test Date, and provided further that, the outstanding principal amount of such Permitted PRC Indebtedness, when aggregated with outstanding principal amount of the Group if:
Permitted Additional Debt, shall not exceed US$45,000,000 (Aor its equivalent)) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial PRC Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viiivi) a general indebtedness basket for any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, where the aggregate outstanding principal amount of which across the Group does not exceed an amount to be agreed at the time of incurrence. Any Permitted Financial Indebtedness in connection with loans made by a Group Member to another Group Member over a threshold to be agreed and any shareholder debt shall be subordinated to the Facility at the terms of the Intercreditor Agreement or at terms otherwise satisfactory to the Agent. Any Permitted Financial Indebtedness in connection with a Permitted Acquisition may be on a certain funds basis, and the applicable requirements shall be tested (and may be deemed satisfied) as at the time exceed [***] (or its equivalent in another currency or currencies)of the agreement to acquire the relevant target.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (and Except as provided below, the Company shall ensure that no other member of the Group will) not, and shall not permit its Subsidiaries to, incur (or agree permit to incur) or have be outstanding any Financial Indebtedness.
(b) Paragraph (aSection 6.9(a) above does not apply toto any:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)incurred under the Credit Agreement;
(ii) Financial Indebtedness arising under the Finance DocumentsPermitted Transactions;
(iii) any Financial Indebtedness Permitted Letters of a company which becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the GroupCredit;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to refinancing of the extent covered by a guaranteeABL Loan Credit Agreement in full, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) the aggregate principal amount of such Financial Indebtedness (i) will not at any time exceed an amount equal to the sum of (x) the amount of the commitment for revolving loans (as such bond issued commitment is unsecuredspecified in the ABL Loan Credit Agreement) under the ABL Loan Credit Agreement then in effect plus (y) $75,000,000 and (ii) will not be less than eighty percent (80%) of the amount of the Revolving Loan Commitment (as such term is defined in the ABL Loan Credit Agreement as in effect as of the date of this Agreement), or such lesser amount as permitted by Barclays, acting in a commercially reasonable manner, taking into account commodity market conditions at the time;
(B) such incurrence will be effected by the HIE Parties pursuant to definitive documentation in form and substance and otherwise satisfactory to Barclays in its reasonable discretion (the Refinancing Credit Agreement), which documentation will (i) provide for a maturity date that is not earlier than the maturity date of the original ABL Loan Credit Agreement and (ii) be on terms that are consistent with the then-prevailing market terms and pricing for asset backed revolving loan agreements;
(C) prior to the incurrence of such Financial Indebtedness, each holder of any such bond ranks pari passu with, Financial Indebtedness and any agent or subordinated trustee thereof will have agreed to be bound by the Facilitiesterms and conditions of the Intercreditor Agreement; and
(CD) prior to the proceeds are applied incurrence of such Financial Indebtedness, the HIE Parties will have delivered evidence that any Security Interest granted for the benefit of the holders of the loan obligations under the ABL Loan Credit Agreement has been (or will be on the date of such refinancing) terminated and released in accordance with Clause 9.5 (Capital Market Issue Proceeds) full and Clause 9.8 (Application that all of Capital Market Issue Proceeds)such loan obligations will be prepaid, discharged and cancelled in full on or by the date of such refinancing; and
(viiiv) Financial Indebtedness approved by Barclays.
(c) Except as set forth on Schedule 5, (a) the Company shall not, and shall not permit its Subsidiaries to, extend, incur or permit to be outstanding any Financial Indebtedness between the Company and its Subsidiaries, on the one hand, and the Retail Subsidiary or Retail Holdco, on the other hand, and (other than falling within paragraph (gb) of the definition of Financial Indebtedness) provided that Company shall not, and shall not permit its Subsidiaries to, extend or incur any Financial Indebtedness referred to in paragraphs (h) or (j) respect of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies)Retail Business.
Appears in 1 contract
Financial Indebtedness. (a) No Except as permitted under paragraph (b) or paragraph (c) below, no Obligor shall (and the Company shall ensure that no other member of the Group will) incur (or agree allow to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)which is incurred under the Senior Finance Documents;
(ii) Financial Indebtedness arising which is incurred under the Bridge Finance Documents in the form delivered as a condition precedent to this Agreement (or, in the case of the “Extended Loan Credit Agreement” and the Exchange Documents” (each as defined in the Bridge Facility Agreement), on terms consistent with those set forth in schedule 13 and 14 of the Bridge Facility Agreement) as amended from time to time in accordance with this Agreement (and to the extent permitted under the Intercreditor Agreement);
(iii) any Financial Indebtedness arising under the High Yield Notes Documents as amended from time to time in accordance with this Agreement, provided that, upon their issuance, the Financial Indebtedness arising under the Bridge Facility Agreement is repaid in full or in part;
(iv) any Financial Indebtedness arising under:
(i) any on-loan of the proceeds of the PIK Facility made by PIKCo to the Company; or
(ii) the High Yield Inter-Company Loan Agreement (if any), that is, in each case, subordinated pursuant to the Intercreditor Agreement;
(v) Capitalised Lease Obligations incurred by the Company or any of its Subsidiaries provided that such Capitalised Lease Obligations are with another member of the Group or:
(A) do not result in a company breach of the undertaking as to maximum Capital Expenditure in paragraph (d) of Clause 24.2 (Financial condition);
(B) are on arm’s length terms; and
(C) to the extent that the aggregate amount of the principal element of such Capitalised Lease Obligations, calculated in accordance with the Accounting Principles, does not at any time exceed €75,000,000 (or its equivalent in other currencies);
(vi) monies borrowed under a loan from another member of the Group which becomes is permitted under Clause 25.13 (Loans or credit), or any guarantee given by a member of the Group which is permitted under Clause 25.14 (No guarantees or indemnities);
(vii) Financial Indebtedness to the extent covered by a Letter of Credit or other letter of credit, guarantee or indemnity issued under an Ancillary Facility or a Fronted Ancillary Facility;
(viii) Financial Indebtedness in respect of any transaction which is:
(A) a Hedging Agreement; or
(B) a Treasury Transaction permitted by Clause 25.27 (Hedging Arrangements and Treasury Transactions);
(ix) any Financial Indebtedness arising under any cash management or cash pooling arrangement to the extent entered into in the ordinary course of its banking arrangements for the purpose of netting balances of members of the Group at the end of each day and provided that at all times following the date falling three Months after the Closing Date, the aggregate of debit balances of members of the Group other than Obligors under all such arrangements that are supported by Obligors does not exceed €125,000,000 (or its equivalent in other currencies) in aggregate at any time;
(x) the discounting of bills or notes in the ordinary course of trading, provided that, for avoidance of doubt, this does not permit the entering into of receivables discounting facilities on a with recourse basis;
(xi) any Financial Indebtedness arising under any Vendor Financing;
(xii) any Financial Indebtedness under an Investor Document or a Permitted Subordinated Debt Document as amended from time to time in accordance with this Agreement;
(xiii) any Financial Indebtedness incurred by any member of the Group as a result of the implementation or completion of any step set out in the Structure Memorandum;
(xiv) any Financial Indebtedness of the Target Group outstanding on the Closing Date provided such indebtedness is repaid or prepaid within three Months of the Closing Date (save as otherwise permitted in this sub-paragraph (b));
(xv) any Financial Indebtedness under the Target Bonds and the 2006 Target Bonds;
(xvi) any Financial Indebtedness incurred for the purpose of repaying or redeeming amounts outstanding under or otherwise acquiring any Target Bonds provided that:
(A) the scheduled maturity date of such Financial Indebtedness does not fall prior to the Termination Date in respect of Facility C;
(B) the borrower of such Financial Indebtedness shall be the borrower of the Target Bonds to be repaid, redeemed or otherwise acquired; and
(C) any guarantee or Security provided to any creditor of such Financial Indebtedness shall (to the extent that any such guarantee or Security was not provided to the creditors of the Target Bonds being repaid or redeemed) be on terms which require the release of such guarantee or Security in that event that, pursuant to any fair value sale or other disposal, the relevant Obligor is to leave the Group in connection with any enforcement action taken in respect of the Facilities;
(xvii) any Financial Indebtedness incurred which falls under paragraph (g) of the definition of Financial Indebtedness;
(xviii) Financial Indebtedness of any person acquired by a member of the Group after the Closing Date which is outstanding under arrangements in existence at the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group ifacquisition (provided that:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming entity by a member of the Group;
(ivB) any the principal amount of such Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount is not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu withincreased in contemplation of, or subordinated to after the Facilitiesdate of, the acquisition (otherwise than by the capitalisation of interest); and
(C) such Financial Indebtedness is repaid within 6 Months of the proceeds date of the acquisition);
(xix) any Financial Indebtedness of HTCC;
(xx) any loan made by a Holdco to any member of the Group in connection with the payment of Taxes which are applied in accordance with Clause 9.5 attributable to the business of the Group which are on terms satisfactory to the Facility Agent (Capital Market Issue Proceedsacting reasonably);
(xxi) any Financial Indebtedness incurred under the “Qualified Technological Equipment Lease” US cross-border sale and Clause 9.8 (Application leaseback transactions entered into by one or more members of Capital Market Issue Proceeds)the Target Group prior to the date of this Agreement; and
(viiixxii) any Financial Indebtedness (other than falling within paragraph (g) of the definition Company or any of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of its Subsidiaries not otherwise permitted by the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within preceding paragraphs (i) to (vixxi) above, the (inclusive) in an aggregate outstanding principal amount of which across the Group does outstanding not at any time exceed [***] exceeding €100,000,000 (or its equivalent in another currency other currencies) at any time.
(c) The Company may not, prior to the Closing Date, incur any Financial Indebtedness for the purpose of financing Market Purchases unless:
(i) such Financial Indebtedness is Permitted Subordinated Debt; or
(ii) such Financial Indebtedness is provided by third party lenders on terms such that it will be capable of being refinanced on, and any Security provided in support of that Financial Indebtedness will be released on, the Closing Date. The Company shall be obliged:
(A) to refinance any Financial Indebtedness incurred by it under sub-paragraph (ii) above, through a Utilisation of the Facilities;
(B) to cancel any available facility in respect of Market Purchases made available to it in accordance with sub-paragraph (ii) above;
(C) procure the release of any Security which it has granted in support of any Financial Indebtedness incurred by it under sub-paragraph (ii) above; and
(D) provide a certificate from the relevant third party lender that it has no further claims against the Company in respect of any such Financial Indebtedness incurred by it under, or currencies)facility made available to in accordance with sub-paragraph (ii) above, in each case on or before the first Utilisation Date.
Appears in 1 contract
Samples: Senior Facilities Agreement (Nordic Telephone CO ApS)
Financial Indebtedness. The Company will not permit any Subsidiary other than the Previous Parent to create, incur, assume or suffer to exist any Financial Indebtedness, except:
(a) No Obligor shall (and the Company shall ensure that no other member of the Group will) incur (or agree to incur) or have outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising under the Finance Documents;
(iiib) any Financial Indebtedness of under the US Facility Agreement and any renewal and refinancing thereof, provided that the committed amount thereof is not increased and no other Subsidiary (other than a company which Subsidiary that becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company borrower thereunder) becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred obligated in contemplation of the acquisition of that companyrespect thereof;
(Bc) the Financial Indebtedness is repaid, prepaid owed to the Company or cancelled in full within [***] of that company becoming a member another Subsidiary of the GroupCompany;
(ivd) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guaranteeperformance bonds, bond surety bonds or letter of credit issued obligations to provide security under an Ancillary Facilityworker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation, and bank overdrafts, in each case, incurred in the ordinary course of business;
(vie) Permitted Existing Financial IndebtednessIndebtedness of any Subsidiary existing as of the date hereof (other than Financial Indebtedness described in paragraphs (a) or (b) above), and any renewal and refinancing thereof, provided that the principal amount thereof is not increased;
(viif) Financial Indebtedness arising from under any Hedging Agreements entered into in the issuance or issuances ordinary course of one or more convertible or regular bonds with an aggregate maximum subscription amount business and not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilitiesfor speculative purposes; and
(Cg) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any other Financial Indebtedness (other than falling within paragraph (g) of in an aggregate amount outstanding at any time not to exceed €2,000,000,000, minus the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition amount of Financial Indebtedness shall only be counted once for then outstanding under this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at Agreement and any time exceed [***] (renewal or its equivalent in another currency or currencies)refinancing thereof.
Appears in 1 contract
Samples: Facility Agreement (Aon Corp)
Financial Indebtedness. The Borrower will not, and will not permit any of its Subsidiaries to, contract, create, incur, assume or suffer to exist any Financial Indebtedness, except that:
(a) No Obligor shall (The Borrower and each Subsidiary Guarantor may incur and remain liable for the Financial Indebtedness incurred pursuant to this Agreement and the Company shall ensure that no other member of the Group will) incur (or agree to incur) or have outstanding any Financial Indebtedness.Credit Documents;
(b) Paragraph (a) above does not apply to:
(i) the Borrower and each Subsidiary Guarantor may incur and remain liable for intercompany Financial Indebtedness referred permitted pursuant to in paragraph Section 8.05(b) and the Borrower’s Subsidiaries (bother than any Subsidiary Guarantor) of Clause 23.6 (Loans may incur and guaranteesremain liable for intercompany Financial Indebtedness permitted pursuant to Section 8.05(d);
(c) the Borrower and each Subsidiary Guarantor may incur Financial Indebtedness in connection with the purchase of ballast water treatment equipment for any vessel owned by the Borrower or any of its Subsidiaries; provided that (i) the terms and conditions of such Financial Indebtedness shall be reasonably satisfactory to the Administrative Agent and (ii) the aggregate principal amount of Financial Indebtedness arising under the Finance Documentsincurred pursuant to this Section 8.04(b) shall not exceed $1,000,000 in respect of each Collateral Vessel;
(iiid) any the Borrower and each Subsidiary Guarantor may remain liable for Financial Indebtedness of a company which becomes a member of in connection with the Group after the date of this AgreementOther Loan Agreements, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any and other Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilitieshereunder and set forth on Schedule VIII hereto; and
(Ce) the proceeds are applied in accordance with Clause 9.5 Borrower (Capital Market Issue Proceedsbut not any Subsidiary Guarantor) may incur and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any remain liable for Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for not otherwise permitted under this purpose) not falling within paragraphs Section 8.04 so long as (i) no Default or Event of Default exists at the time of such incurrence and after giving effect thereto and (ii) the Borrower and its Subsidiaries shall be in pro forma compliance with the Financial Covenants both before and after giving effect to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies)such Financial Indebtedness.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor Except as permitted under paragraph (b) below, no Loan Party shall (and the Company Parent shall ensure that no other member of the Group Restricted Subsidiary will) incur (or agree to incur) or have outstanding Incur any Financial Indebtedness (including Acquired Financial Indebtedness) other than Financial Indebtedness permitted under paragraph (b) below.
(b) Paragraph (a) above does not apply toto Financial Indebtedness which is:
(i) Incurred after the date of this Agreement if on the date of such Incurrence and after giving pro forma effect thereto (including pro forma application of the proceeds thereof):
(A) the ratio of Adjusted Total Secured Financial Indebtedness to Consolidated EBITDA does not exceed 2.0:1;
(B) the financial covenants referred to in Clause 22.2 (Financial condition) will not be breached if recalculated on a pro forma basis as if such Financial Indebtedness had been Incurred at the beginning of the Relevant Period, in respect of which such financial covenants were last tested;
(C) if such Financial Indebtedness is secured by Security or Quasi-Security over any assets of a Restricted Group Company, that Security or Quasi-Security is permitted under paragraph (bo) of Clause 23.6 the definition of “Permitted Security” and, if applicable, also permitted under paragraph (Loans and guaranteesn) or paragraph (p), thereof; and
(D) the amount of Financial Indebtedness outstanding from India Business Companies at any time will not exceed USD 90,000,000 (or its equivalent in other currencies);
(ii) Financial Indebtedness arising under Incurred pursuant to any Existing Credit Facilities Agreement in force on the date of this Agreement or the Finance DocumentsDocuments which, for the avoidance of doubt, shall not exceed the maximum amount capable of being Incurred under all such Existing Credit Facilities Agreements or the Finance Documents on the date hereof) and any guarantees in respect of such Financial Indebtedness;
(iii) Financial Indebtedness represented by the Senior Notes including any Guarantee Obligations in respect thereof;
(iv) Guarantee Obligations of the Parent or any Restricted Subsidiary of Financial Indebtedness of a company which becomes the Parent or any Loan Party so long as the Incurrence of such Financial Indebtedness is permitted under this Clause 23.21 or arises under any performance or similar bond guaranteeing the performance by a member of the Group after under any contract entered into in the date ordinary course of this Agreement, where trade or the Financial Indebtedness is incurred prior to endorsement of a negotiable instrument in the date on which that company becomes a member ordinary course of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid trade or cancelled in full within [***] of that company becoming a member of the Group;
(iv) arises under any Financial Indebtedness permitted under Clause 23.19 (Hedging)Permitted Guarantee;
(v) any Financial Indebtedness to Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes) for the extent covered purpose of limiting interest rate risk, exchange rate risk or commodity pricing risk arising in the ordinary course of trade but not for investment or speculative purposes (as determined in good faith by a guarantee, bond the board of directors or letter of credit issued under an Ancillary Facilitysenior management or the Parent);
(vi) Permitted Existing Financial Indebtednessarising under a loan by a Loan Party to another Loan Party or made by a member of the Restricted Group which is not a Loan Party to a Loan Party;
(vii) arising under a loan by a Loan Party to a member of the Restricted Group which is not a Loan Party so long as the aggregate amount of Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) under any such bond issued is unsecuredloans (excluding loans in respect of payments for goods and services provided) shall not exceed USD 25,000,000 at any time;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (represented by Finance Lease Obligations or Purchase Money Obligations in an aggregate outstanding principal amount which, when taken together with the principal amount of all other than falling within Financial Indebtedness Incurred at the time of Incurrence is permitted under paragraph (gb)(i) above and paragraph (o) of the definition of Financial Indebtedness“Permitted Security”; or
(ix) at any person acquired by the Parent or a Restricted Subsidiary after the Closing Date which is incurred under arrangements in existence at the date of acquisition but not Incurred or increased or having its maturity date extended in contemplation or since that acquisition and outstanding only for a period of three months following the date of the acquisition, provided that in the case of any item referred to in paragraphs (b)(i) to (ix) above: (1) the financial covenants referred to in Clause 22.2 (Financial condition) will not be breached; (2) to the extent such Financial Indebtedness is secured by Security or Quasi-Security, the Security or Quasi-Security is permitted under paragraph (n) or (o) of the definition of “Permitted Security”; (3) the amount of Financial Indebtedness outstanding from India Business Companies will not exceed USD 90,000,000 and any Security or Quasi-Security for such Financial Indebtedness is permitted under paragraph (n) of the definition “Permitted Security,” and, if applicable, paragraph (o) or paragraph (p) of the definition of “Permitted Security”; (4) Financial Indebtedness owed by a Loan Party to another member of the Group or a Holding Company will be subordinated to all claims of the Finance Parties against such Loan Parties; and (5) any Material Company which is not a Guarantor and is not an Indian Business Company may only Incur Financial Indebtedness referred to in paragraphs (b)(iv) (excluding Guarantee Obligations of any Financial Indebtedness referred to in paragraphs (hi), (ii) or (jiii) above), (v), (vi), (vii), (viii) (to the extent that Financial Indebtedness of the type falling within paragraph (viii) of the definition of Financial Indebtedness shall only be counted once for this purposesuch Material Companies does not exceed USD 1,000,000 in aggregate) not falling within paragraphs or (i) to (viix) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies).
Appears in 1 contract
Samples: Facilities Agreement (Igate Corp)
Financial Indebtedness. (a) No Obligor Except as permitted under paragraph (b) or paragraph (c) below, the Company shall not (and the Company shall ensure that no other member of the Group will) incur (or agree allow to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)which is incurred under the PIK Finance Documents or the PIK Documents;
(ii) Financial Indebtedness arising of any member of the Midco Group which is incurred under the Bridge Finance DocumentsDocuments or the Senior Finance Documents (to the extent permitted under the Intercreditor Agreement);
(iii) any Financial Indebtedness of any member of the Midco Group arising under the High Yield Notes Documents as amended from time to time in accordance with this Agreement;
(iv) any Financial Indebtedness arising under any on-loan of the proceeds of the PIK Facility made by the Company to Midco including any Financial Indebtedness arising under the PIK Notes Inter-Company Loan Agreement;
(v) Capitalised Lease Obligations incurred by Midco or any of its Subsidiaries provided that such Capitalised Lease Obligations are with another member of the Group or:
(A) do not result in a company breach of the undertaking as to maximum Capital Expenditure in paragraph (d) of Clause 19.2 (Financial condition) of the Bridge Facility Agreement;
(B) are on arm's length terms; and
(C) to the extent that the aggregate amount of the principal element of such Capitalised Lease Obligations, calculated in accordance with the Accounting Principles, does not at any time exceed €75,000,000 (or its equivalent in other currencies);
(vi) monies borrowed under a loan from another member of the Group which becomes is permitted under Clause 20.12 (Loans or credit), or any guarantee given by a member of the Midco Group which is permitted under Clause 20.13 (No guarantees or indemnities);
(vii) Financial Indebtedness of any member of the Midco Group to the extent covered by a letter of credit issued under the Senior Facilities or other letter of credit, guarantee or indemnity issued under an Ancillary Facility or a Fronted Ancillary Facility (each as defined in the Senior Facilities Agreement);
(viii) Financial Indebtedness of any member of the Midco Group in respect of any transaction which is a Treasury Transaction permitted by Clause 20.26 (Treasury Transactions);
(ix) any Financial Indebtedness arising under any cash management or cash pooling arrangement to the extent entered into in the ordinary course of its banking arrangements for the purpose of netting balances of members of the Group at the end of each day and provided at all times following the date falling three Months after the Closing Date, that the aggregate of debit balances of members of the Group other than Senior Obligors under all such arrangements that are supported by Senior Obligors does not exceed €125,000,000 (or its equivalent in other currencies) in aggregate at any time;
(x) the discounting of bills or notes in the ordinary course of trading, provided that, for avoidance of doubt, this does not permit the entering into of receivables discounting facilities on a with recourse basis;
(xi) any Financial Indebtedness of any member of the Midco Group arising under any Vendor Financing;
(xii) any Financial Indebtedness under an Investor Document or a Permitted Subordinated Debt Document as amended from time to time in accordance with this Agreement;
(xiii) any Financial Indebtedness incurred by any member of the Group as a result of the implementation or completion of any step set out in the Structure Memorandum;
(xiv) any Financial Indebtedness of the Target Group outstanding on the Closing Date provided such indebtedness is repaid or prepaid within three Months of the Closing Date (save as otherwise permitted in this sub-paragraph (b);
(xv) any Financial Indebtedness of any member of the Midco Group under the Target Bonds and the 2006 Target Bonds;
(xvi) any Financial Indebtedness of any member of the Midco Group incurred for the purpose of repaying or redeeming amounts outstanding under or otherwise acquiring any Target Bonds provided that:
(A) the scheduled maturity date of such Financial Indebtedness does not fall prior to the date falling twelve years after the Closing Date; and
(B) the borrower of such Financial Indebtedness shall be the borrower of the Target Bonds to be repaid, redeemed or otherwise acquired;
(xvii) any Financial Indebtedness of any member of the Midco Group incurred which falls under paragraph (g) of the definition of Financial Indebtedness;
(xviii) Financial Indebtedness of any person acquired by a member of the Group after the Closing Date which is outstanding under arrangements in existence at the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group ifacquisition (provided that:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming entity by a member of the Group;
(ivB) any the principal amount of such Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount is not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu withincreased in contemplation of, or subordinated to after the Facilitiesdate of, the acquisition (otherwise than by the capitalisation of interest); and
(C) such Financial Indebtedness is repaid within three Months of the proceeds date of the acquisition);
(xix) any Financial Indebtedness of HTCC;
(xx) any loan made by a Holdco to any member of the Group in connection with the payment of Taxes which are applied in accordance with Clause 9.5 attributable to the business of the Group which are on terms satisfactory to the PIK Facility Agent (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceedsacting reasonably); and
(viiixxi) any Financial Indebtedness (other than falling within paragraph (g) incurred under the "Qualified Technological Equipment Lease" US cross-border sale and leaseback transactions entered into by one or more members of the definition Target Group prior to the date of Financial Indebtednessthis Agreement; and
(xxii) provided that any Financial Indebtedness referred to in paragraphs (h) of Midco or (j) any of its Subsidiaries not otherwise permitted by the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within preceding paragraphs (i) to (vixxi) above, the (inclusive) in an aggregate outstanding principal amount of which across the Group does outstanding not at any time exceed [***] exceeding €100,000,000 (or its equivalent in another currency other currencies) at any time.
(c) The Company may not, prior to the Closing Date, incur any Financial Indebtedness for the purpose of financing Market Purchases unless:
(i) such Financial Indebtedness is Permitted Subordinated Debt (including Permitted Subordinated Debt as defined in the Bridge Facility Agreement; or
(ii) such Financial Indebtedness is provided by third party lenders on terms such that it will be capable of being refinanced on, and any Security provided in support of that Financial Indebtedness will be released on, the Closing Date.
(iii) The Company shall be obliged:
(A) to refinance any Financial Indebtedness incurred by it under sub-paragraph (ii) above, through a Utilisation of the Senior Facilities;
(B) to cancel any available facility in respect of Market Purchases made available to it in accordance with sub-paragraph (ii) above;
(C) procure the release of any Security which it has granted in support of any Financial Indebtedness incurred by it under sub-paragraph (ii) above; and
(D) provide a certificate from the relevant third party lender that it has no further claims against the Company in respect of any such Financial Indebtedness incurred by it under, or currencies)facility made available to in accordance with sub-paragraph (ii) above, in each case on or before the first Utilisation Date.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (The Borrower will not, and the Company shall ensure will procure that no other member of the Group will) , incur (or agree permit to incur) or have outstanding subsist any Financial Indebtedness.
(b) Paragraph (a) above does not apply toIndebtedness other than:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)indebtedness under the Senior Finance Documents;
(ii) any existing Financial Indebtedness arising set forth in Schedule K and any refinancing of any such Financial Indebtedness marked by an asterisk in Schedule K; provided that the principal amount of such refinancing Financial Indebtedness does not exceed the principal amount being refinanced and the obligor of the new Financial Indebtedness remains the same as the obligor of the refinanced Financial Indebtedness;
(iii) Financial Indebtedness incurred in accordance with the Hedging Policy and pursuant to any (a) Hedging Agreement in effect as of the date hereof and set forth in Schedule L, intended to hedge against interest rate or foreign exchange rate fluctuations, (b) Hedging Agreement intended to hedge against interest rate or foreign exchange rate fluctuations relating to any Financial Indebtedness under the Senior Finance Documents, (c) Hedging Agreement intended to hedge against interest rate or foreign exchange rate fluctuations relating to any interest amounts payable under any High Yield Debt Documents and (d) Hedging Agreement intended to hedge against any foreign exchange rate fluctuations relating to the principal outstanding under any High Yield Debt Documents; provided that any such Hedging Agreement as is described in this sub-clause (d) is unsecured and subordinated to the Financial Indebtedness under the Senior Finance Documents;
(iii) any Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from consisting of vendor financings where the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, payment terms exceed 180 days so long as the aggregate amount outstanding principal amount of which across the Group thereunder does not at any time exceed [***] the Euro Equivalent of euro50,000,000;
(or v) during the UMTS Pre-Approval Period:
(A) (x) Subordinated Debt (other than Shareholder Loans) of an Obligor (and any Subordinated Debt of the Borrower incurred from the onlending of such Subordinated Debt of the Obligor) so long as after giving pro forma effect thereto, the Borrower will be in compliance with its equivalent undertakings contained in another currency or currenciesClause 21 (Financial Undertakings).; and
Appears in 1 contract
Samples: Facility Agreement (Polska Telefonia Cyfrowa Sp Zoo)
Financial Indebtedness. (a) No Obligor Subject to paragraph (c) of this Clause 10.6, other than pursuant to the Security Documents, the Borrowers shall not incur any Financial Indebtedness except (and the Company shall ensure that no other subject to paragraph (b) of this Clause 10.6,) any such indebtedness owed to any member of the Group willGuarantor Group, provided that:
(i) such inter-group Financial Indebtedness is unsecured and fully subordinated in right of payment to the rights of each of the Finance Parties under the Security Documents in accordance with paragraph (b) of this Clause 10.6; and
(ii) each Borrower may incur (or agree to incur) or have outstanding Financial Indebtedness in the ordinary course of operating the Vessel owned by it provided that the aggregate of such Financial Indebtedness does not exceed US$1,000,000 in the case of each such Vessel at any Financial Indebtednesstime.
(b) Paragraph (a) above does not apply to:
(i) To the extent permitted under the foregoing provisions of this Clause 10.6, any Borrower may service Financial Indebtedness referred owed to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising under the Finance Documents;
(iii) any Financial Indebtedness of a company which becomes a other member of the Guarantor Group after in accordance with the date terms of this Agreementsuch Financial Indebtedness, where the provided that, on any day on which an amount remains due and payable by a Security Party under any Security Document, such amount shall be discharged in preference to any such Financial Indebtedness is incurred prior owed by such Borrower to the date on which that company becomes a another member of the Guarantor Group if:
(A) which is also due and payable on such day and notwithstanding the forgoing provisions of this Clause 10.6, following the occurrence of an Event of Default which is continuing unremedied or unwaived, any payment by a Borrower in respect of Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a owed to another member of the Group;Guarantor Group shall require the prior consent of the Agent.
(ivc) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by Any Borrower may enter into an interest rate hedge, currency swap or similar arrangement for a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription notional amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated the Facility Outstandings as applicable from time to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies)time.
Appears in 1 contract
Samples: Secured Reducing Revolving Loan Facility Agreement (Teekay Shipping Corp)
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that no other member of the Group will) will incur (or agree allow to incur) or have be outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply toIndebtedness other than:
(i) Financial Indebtedness referred to under the Finance Documents (including any amount owing in paragraph (b) respect of Clause 23.6 (Loans and guaranteesthe Ancillary Facilities);
(ii) Financial Indebtedness arising under normal trade credit granted to it in the Finance Documentsordinary course of business;
(iii) equipment leases and hire purchase transactions entered into in the ordinary course of business where the total annual Financial Indebtedness for such leases and transactions for the Obligors as a whole does not exceed €50,000 at any one time;
(iv) operating leases entered into in the ordinary course of business where the total annual Financial Indebtedness for such operating leases for the Obligors as a whole does not exceed €1,000,000 at any one time.
(v) Financial Indebtedness owing by one Obligor to another Obligor;
(vi) Financial Indebtedness owing by one non-Obligor to another non-Obligor;
(vii) Financial Indebtedness owing by a non-Obligor to an Obligor, where the proceeds of the intra-Group loans creating that Financial Indebtedness are on-lent, within 24 hours, to an Obligor, to facilitate tax beneficial structuring arrangements within the Group (Financial Indebtedness arising from that on-lending also being permitted under this provision);
(viii) Financial Indebtedness owing by any Obligor to a non-Obligor, not exceeding in aggregate the sum of €500,000;
(ix) the CIT Facility to the extent available to WC Designs;
(x) the High Yield Bonds, so long as the interest rate is no greater than 11 per cent. per annum;
(xi) the Existing Group Indebtedness, provided that it is repaid in accordance with the terms of this Agreement;
(xii) any Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior New Subsidiary until up to 120 days following the date on which that company New Subsidiary becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(ivxiii) any Financial Indebtedness permitted under Clause 23.19 existing at the date of this Agreement and details of which are set out in Schedule 9 (HedgingExisting Financial Indebtedness);
(vxiv) any Financial Indebtedness with respect to (i) a customs guarantee issued for a member of the extent covered Group by Mizuho Corporate Bank, Limited in Japan, provided that the amount of the liability of the Group with respect to that guarantee is not increased above its current liability (being no more than Yen 152,000,000) and (ii) a guarantee, bond customs guarantee of £400,000 with The Royal Bank of Scotland plc or letter of credit issued under an Ancillary a replacement thereof;
(xv) the WW Subordinated Facility;
(vixvi) Permitted Existing Financial Indebtednessthe granting of guarantees and indemnities permitted by paragraph (b) below;
(viixvii) Financial Indebtedness arising from outstanding under an Additional Subordinated Facility, provided that the issuance or issuances amount of one or more convertible or regular bonds such Financial Indebtedness, when aggregated with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any all other Financial Indebtedness (outstanding at that time under all other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) aboveAdditional Subordinated Facilities, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] €10,000,000 (or its equivalent in another currency any other currency);
(xviii) the Ancillary Facilities;
(xix) under the Xxxxxxxxx Sale and Leaseback;
(xx) the Xxxxxxxxx Subordinated Facility;
(xxi) any other Financial Indebtedness outstanding at any time which in aggregate does not exceed €1,000,000 (or currenciesits equivalent in any other currency); or
(xxii) any other Financial Indebtedness incurred with the prior written consent of the Required Lenders.
(b) The Company shall not, and shall procure that no member of the Group shall, grant any guarantee or indemnity or similar assurance against financial loss
Appears in 1 contract
Financial Indebtedness. No Obligor party hereto shall, and each Obligor party hereto shall procure that none of its Subsidiaries will, incur or allow to remain outstanding any Financial Indebtedness other than:
(a) No Obligor shall (and the Company shall ensure that no other member of the Group will) incur (or agree to incur) or have outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising from time to time under any of the Finance Documents;
(iiib) any Financial Indebtedness of a company which becomes a Cayman Co or any member of the Group (incorporated outside the PRC) arising from time to time under any of the Transaction Warrant Documents, provided that no amendment has been made to any Transaction Warrant Document (from the form approved by the Arranger prior to the delivery of the first Utilisation Request hereunder) that has the effect of increasing the aggregate amount that may become payable or owing under the Transaction Warrant Documents (except with the prior written consent of the Majority Lenders);
(c) any Financial Indebtedness of the Borrower under any Treasury Transaction entered into by the Borrower with a Swap Counterparty for the purpose of hedging the Borrower’s exposure to fluctuations in interest rates and/or currency exchange rates (including without limitation any such exposure in connection with the Facility) and not for any speculative purpose;
(d) any Financial Indebtedness of the Borrower under any Equipment Leasing Contract and/or the Capital Leasing Contract (in each case on the terms subsisting as at the date of this Agreement and notified to the Facility Agent prior to the date of this Agreement), provided that the aggregate outstanding principal and/or capital amount of each such Financial Indebtedness is not increased after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:; and/or
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(ive) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness owed by Parentco to the extent covered by a guaranteeSponsor, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(Ai) any such bond issued Financial Indebtedness is unsecured;
(B) any such bond ranks pari passu with, constituted by a loan made by Parentco on or subordinated after 15 December 2009 but prior to the Facilitiesdate of the first Utilisation Request under this Agreement, and all of the proceeds of such loan are contributed by Parentco towards the registered capital of the Borrower prior to the date of the first Utilisation Request under this Agreement; and
(Cii) all of Parentco’s obligations under and in respect of such Financial Indebtedness are (at all times with effect from the proceeds are applied in accordance with Clause 9.5 date of the first Utilisation under this Agreement) subordinated to the Secured Obligations pursuant to a Subordination Deed between the Sponsor, Parentco and the Security Agent, (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within this paragraph (ge)) of the definition of Financial Indebtedness) provided that being “Permitted Sponsor Subordinated Debt”), (any Financial Indebtedness referred to in falling within any of paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (ia) to (vie) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currenciesbeing “Permitted Financial Indebtedness”).
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall Except as provided in paragraph (and the Company shall ensure that b) below, no other member of the Group will) may incur (or agree permit to incur) or have be outstanding any Financial IndebtednessIndebtedness or enter into any off-balance sheet financing arrangement.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans incurred under the Senior Finance Documents, the Securities and guarantees)any Bond Refinancing Debt;
(ii) any Financial Indebtedness arising of any person (the “acquired person”) acquired by a member of the Group after the First Drawdown Date which is incurred under arrangements in existence at the Finance Documentsdate of acquisition, but not incurred or increased or its maturity date extended in contemplation of, or since, that acquisition provided that notwithstanding anything else contained in this Agreement no member of the Group (excluding the acquired person and its Subsidiaries as at the date of acquisition) shall guarantee, indemnify or otherwise become liable for such Financial Indebtedness, provide Cash Cover in respect of or grant any Security Interest as security for such Financial Indebtedness;
(iii) any Financial Indebtedness under finance or capital leases of a company which becomes a member vehicles, plant, equipment or computers and any Financial Indebtedness under conditional sale agreements or other agreements for the acquisition of assets on deferred payment terms, provided that the aggregate capital value of all such assets so leased or acquired under outstanding leases or outstanding conditional sale agreements or agreements for the acquisition of assets by members of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was does not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Groupexceed €150,000,000;
(iv) any Financial Indebtedness arising under any Treasury Transaction permitted under Clause 23.19 pursuant to Subclause 23.13 (HedgingTreasury Transactions);
(v) any Financial Indebtedness arising under any loan permitted under Subclause 23.14 (Loans out) and Subclause 23.16 (Dividends);
(vi) any Financial Indebtedness arising under the loan of €125,000,000 by SPV B.V. made under the SPV B.V./Parent Loan Agreement;
(vii) any Financial Indebtedness arising under guarantees permitted under Subclause 23.12 (Third party guarantees);
(viii) any Financial Indebtedness to the extent covered by a guarantee, bond Documentary Credit or a letter of credit or guarantee issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viiiix) any Financial Indebtedness (other than falling within paragraph (g) consisting of the definition of Financial IndebtednessRemaining Debt in an aggregate principal amount at any time outstanding not exceeding €190,000,000;
(x) provided that any Financial Indebtedness referred to under the Cash Pooling Facilities in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the an aggregate outstanding principal amount of which across the Group does not at any time not exceeding €60,000,000;
(xi) any Financial Indebtedness consisting of letters of credit and bank guarantees to support rental obligations, performance bonds or similar obligations;
(xii) any Financial Indebtedness required by the Structure Memorandum;
(xiii) any Financial Indebtedness incurred or outstanding pursuant to or in connection with a Permitted Receivables Securitisation;
(xiv) any Financial Indebtedness incurred by members of the Group to another member of the Group to the extent the payment of dividends or other payments are contemplated under Clause 23.16(a) (Dividends) (without double-counting); or
(xv) in addition to the aforementioned, Financial Indebtedness of members of the Group which in aggregate does not exceed [***] (€50,000,000 or its equivalent in another currency or currencies)at any time.
Appears in 1 contract
Samples: Senior Credit Facility (Smurfit Kappa Acquisitions)
Financial Indebtedness. (a) No Obligor The Borrower shall (not, and the Company shall ensure that no other member of the Group will) incur (not permit any Subsidiary thereof to, create, incur, assume or agree allow to incur) or have remain outstanding any Financial Indebtedness., except:
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising created under the Finance Documents;
(iiib) Financial Indebtedness existing on the date hereof and set forth in the Disclosure Schedule;
(c) Financial Indebtedness of the Borrower to the Parent or any Subsidiary thereof and of any Subsidiary to the Parent, the Borrower or any other Subsidiary of Parent;
(d) Guarantees incurred in the ordinary course of business by the Borrower or any Subsidiary thereof of Financial Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary provided that the Indebtedness guaranteed is permitted to be incurred under this Agreement;
(e) Financial Indebtedness incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capitalised Lease Obligations and any Financial Indebtedness assumed in connection with the acquisition of any such assets or secured by a company which becomes a member of Lien on any such assets prior to the Group after the date of this Agreement, where the acquisition thereof; provided that (1) such Financial Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (2) the aggregate principal amount of Capitalised Lease Obligations and Indebtedness incurred pursuant to this clause (e) shall not exceed $25,000,000 at any time outstanding;
(f) Financial Indebtedness of any Person that becomes a Subsidiary of Borrower after the date on which hereof; provided that company (i) such Financial Indebtedness exists at the time such Person becomes a member of the Group if:
(A) the Financial Indebtedness was Subsidiary and is not incurred created in contemplation of or in connection with such Person becoming a Subsidiary, (ii) the Parent is in compliance, on a pro forma basis after giving effect to the acquisition of that companysuch Subsidiary with the covenants in Clause 22.1 and (iii) the aggregate principal amount of Financial Indebtedness incurred pursuant to this clause (f) shall not exceed $10,000,000 at any time outstanding;
(Bg) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] respect of that company becoming a member of the GroupHedging Agreements permitted pursuant hereto;
(ivh) any Financial Indebtedness permitted under Clause 23.19 of the Borrower or any Subsidiary in respect of letters of credit constituting reimbursement obligations (Hedgingi) with respect to letters of credit in respect of workers’ compensation claims or self insurance obligations, or (ii) obtained in the ordinary course of business so long as the aggregate amount of the reimbursement obligations (contingent or otherwise) in respect thereof is expressly limited to $7,000,000;
(i) Financial Indebtedness of the Borrower or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of Indebtedness for borrowed money);
(vj) any Financial Indebtedness to of the extent covered Borrower or any Subsidiary arising from the honouring by a guaranteebank or other financial institution of a check, bond draft or letter similar instrument drawn against insufficient funds in the ordinary course of credit issued under an Ancillary Facilitybusiness, provided that such Indebtedness is extinguished within five Business Days of its incurrence;
(vik) Permitted Existing Financial IndebtednessIndebtedness of Foreign Subsidiaries in an aggregate principal amount at any time outstanding not exceeding $25,000,000;
(viil) Financial Indebtedness arising from incurred by the issuance Borrower or issuances any Subsidiary representing deferred compensation to employees of one the Borrower or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecuredSubsidiary incurred in the ordinary course of business;
(Bm) Financial Indebtedness assumed pursuant to a Permitted Acquisition consummated after the date hereof in an aggregate amount not to exceed $10,000,000 at any time outstanding;
(n) Financial Indebtedness incurred by the Borrower or any Subsidiary in connection with any Permitted Acquisition consisting of obligations in respect of indemnification, the adjustment of the purchase price or similar adjustments;
(o) Financial Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such bond ranks pari passu withPerson in connection with Permitted Acquisitions;
(p) Financial Indebtedness incurred by Borrower or any Subsidiary in respect of netting services, overdraft protections and similar arrangements in each case in connection with cash management and deposit accounts;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations of the Borrower or any Subsidiary thereof contained in supply arrangements, in each case, in the ordinary course of business;
(r) Refinancing Indebtedness of the Borrower or any Subsidiary thereof incurred in exchange for, or subordinated the net proceeds of which are used to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any refund, refinance or replace Financial Indebtedness (other than falling within paragraph (g) Financial Indebtedness of the definition Borrower to any Subsidiary thereof or of Financial Indebtednessany Subsidiary to the Borrower or any other Subsidiary) provided that any Financial Indebtedness referred was permitted to in paragraphs be incurred under clause (ha), (b), (e), (f), (k), (m), (r) or (js), of this Clause 23.16;
(s) Permitted Subordinated Indebtedness, without any limitation as to amount, so long as the Borrower and the Subsidiaries are in Pro Forma Compliance;
(t) other Financial Indebtedness of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) aboveBorrower or any Subsidiary thereof, the in an aggregate outstanding principal amount of which across the Group does not at any time exceed [***] outstanding pursuant to this Clause 23.16 not in excess of $15,000,000; and
(u) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or its equivalent in another currency or currencies)contingent interest on obligations described above.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall Except as permitted under paragraph (and b) below, the Company shall ensure not (and shall procure that no other member none of the Group its Subsidiaries will) incur any Financial Indebtedness in respect of any new loan facility (whether syndicated or agree to incurbilateral) or have outstanding any new issue of debt securities (“Relevant Financial Indebtedness.
(b”) Paragraph (a) above does not apply toafter the date of the Third Amendment Agreement where such Relevant Financial Indebtedness is to be used to finance:
(i) Financial Indebtedness referred to any acquisition (other than acquisitions in paragraph (b) the ordinary course of Clause 23.6 (Loans and guaranteestrading);
(ii) Financial Indebtedness arising under payment of any dividends or other distribution or payment to (directly or indirectly) the Finance Documentsshareholders of CEMEX Parent (including any payment in connection with any redemption, repurchase, defeasance, retirement or repayment of the share capital of CEMEX Parent);
(iii) any Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is Capital Expenditure incurred prior to the date on which that company becomes a member of the Group ifby CEMEX Parent or its Subsidiaries exceeding an aggregate amount of:
(A) US$40,000,000 (or its equivalent in other currencies) for the Financial Indebtedness was not incurred in contemplation of the acquisition of that companyfinancial year ending 31 December 2009;
(B) US$60,000,000 (or its equivalent in other currencies) for the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilitiesfinancial year ending 31 December 2010; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] US$60,000,000 (or its equivalent in another currency other currencies) for the financial year ending 31 December 2011, (and for these purposes “Capital Expenditure” means Maintenance Capital Expenditure and Expansion Capital Expenditure taken together (where “Maintenance Capital Expenditure” means expenses or currenciesinvestments made for the maintenance or replacement of existing plant and equipment used for the business of CEMEX Parent or its Subsidiaries and “Expansion Capital Expenditure” means expenses or investments which is not Maintenance Capital Expenditure and is made for the expansion of any production or distribution facilities of CEMEX Parent or its Subsidiaries)) and provided that this Clause 23.21 (Financial Indebtedness) shall only apply if:
(i) on the date of any incurrence of Relevant Financial Indebtedness and, for these purposes only, after giving effect thereto on a pro forma basis (as if such Relevant Financial Indebtedness had been incurred on the first day of the Relevant Period for which the ratio of Net Borrowings to Adjusted EBITDA has then been most recently tested pursuant to Clause 22.3 (Financial testing)), the ratio of Net Borrowings to Adjusted EBITDA is greater than or equal to 3.5 to 1.0; or
(ii) an Event of Default has occurred and is continuing or would result from the incurrence of such Relevant Financial Indebtedness.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor Except as permitted under paragraph (b) below, Borrower shall not (and the Company shall ensure that no other member of the Group will) incur (or agree allow to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply toto Financial Indebtedness which is:
(i) incurred while no Event of Default is continuing or would result from such incurrence, the outstanding amount of which does not exceed $5,000,000 (or its equivalent in other currencies) for any members of the Group domiciled in one country for use in such country and $25,000,000 (or its equivalent in other currencies) in aggregate for the Group in any Financial Indebtedness referred to in paragraph (b) Year of Clause 23.6 (Loans and guarantees)Borrower;
(ii) Financial Indebtedness arising incurred while no Event of Default is continuing or would result from such incurrence under the Finance Documents;
(iii) any Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid finance or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) capital leases provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate capital value of all such items so leased under outstanding principal amount leases by members of which across the Group does not at any time exceed [***] $20,000,000 (or its equivalent in another currency other currencies) at any time; or
(iii) Permitted Financial Indebtedness or currenciesa Permitted Transaction. Notwithstanding the foregoing, neither Borrower nor CME BV shall incur Permitted Financial Indebtedness in order to refinance, refund, replace, exchange or repay the Revolving Loans, 2014 Third Party Loans, 2015 Third Party Loans and/or 2016 Third Party Loans hereunder unless (i) Borrower shall first present to Time Warner a reasonably detailed description of the proposed refinancing (the “Proposed Refinancing”), including information as to the commercial terms, covenants and events of default, along with whatever additional information or support Time Warner shall reasonably request, (ii) Time Warner shall within two weeks following receipt of such proposal respond to Borrower with (x) its rejection of the Proposed Refinancing, to the extent it requires participation by Time Warner, (y) confirmation that it is not making a counter-proposal to the Proposed Refinancing contemplated in next clause, or (z) at Time Warner’s option, with a reasonably detailed counter-proposal to the Proposed Refinancing, including information as to the commercial terms, covenants and events of default, along with whatever additional information or support Borrower shall reasonably request and (iii) Borrower shall respond to Time Warner’s refinancing counter-proposal within two weeks; provided, if the commercial terms, covenants and events of default (taken as a whole) of Time Warner’s refinancing counter-proposal are substantially similar or more favorable to Borrower than those in the Proposed Refinancing, Borrower and Time Warner shall work in good faith to implement Time Warner’s counter-proposal (and not the Proposed Refinancing or an alternate third-party refinancing proposal) within 120 days following Borrower’s response to Time Warner’s counter-proposal; provided further, if Time Warner does not respond in a timely manner to the Proposed Refinancing or responds with a rejection or confirmation, in each case as provided in clause (ii) above, then Borrower may implement and must consummate the Proposed Refinancing within 120 days after the expiry of the two week period or the date of such rejection or confirmation, as applicable, under clause (ii) above, subject to compliance with the terms set forth in this Agreement (including the terms set forth in the definition of Permitted Refinancing Indebtedness). To the extent the Proposed Refinancing is not consummated within the 120-day time period set forth in the immediately preceding sentence, any Permitted Financial Indebtedness incurred in order to refinance, refund, replace, exchange or repay the Revolving Loans, 2014 Third Party Loans, 2015 Third Party Loans and/or 2016 Third Party Loans shall again become subject to the right of first offer procedure set forth in this paragraph and Borrower shall present to Time Warner a reasonably detailed description of a new Proposed Refinancing.
Appears in 1 contract
Samples: Revolving Loan Facility Credit Agreement (Central European Media Enterprises LTD)
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that Except as provided below, no other member of the Group will) may incur (or agree permit to incur) or have be outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)incurred under the Finance Documents;
(ii) any Financial Indebtedness arising incurred under the Finance DocumentsSubclause 23.11 (Loans and Guarantees);
(iii) any Financial Indebtedness under the Existing Facilities provided that such Financial Indebtedness shall be prepaid and cancelled in full within five days from the first Utilisation Date of a company which becomes the Tranche A Loan;
(iv) any Onshore PRC Bank Borrowing of a member of the Group after not exceeding, when aggregated with the Onshore PRC Bank Borrowings of all other members of the Group, RMB500,000,000 or its equivalent at any time during the period from the date of this Agreement, where the Financial Indebtedness is incurred prior Agreement to the Final Maturity Date, provided that Onshore Bank Borrowing exceeding RMB500,000,000 in aggregate will be allowed if the Facility Agent (acting on the instructions of the Majority Lenders) is satisfied that such borrowing will be used to prepay the Tranche A Facility within five days of the date on which that company becomes a of such borrowing;
(v) any derivative transaction protecting against or benefiting from fluctuations in any rate or price entered into (A) in connection with this Agreement; or (B) in the ordinary course of business of the relevant member of the Group if:
(A) the Financial Indebtedness was not incurred but not, in contemplation of the acquisition of that companyany event, for speculative purposes;
(Bvi) the any Financial Indebtedness is repaidincurred under an issued letter of credit (as defined in paragraph (b) of Subclause 3.4 (Tranche D Facility — Letters of Credit));
(vii) any Financial Indebtedness incurred under any counter-indemnity obligation in respect of any guarantee granted by a bank or financial institution in favour of a governmental body or authority or public utilities company in Hong Kong, prepaid or cancelled in full within [***] provided that the amount of that company becoming a such Financial Indebtedness shall not at any time exceed the US$ equivalent of HK$10,000,000 calculated on the basis of the Agent’s Spot Rate of Exchange on the date of calculation by such member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) incurred in connection with the forward sale of non-HK Dollar cheques by a member of the definition of Financial Indebtedness) Group to a bank or financial institution, provided that any Financial Indebtedness referred to in paragraphs (h) or (j) the amount of the definition of such Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] the US$ equivalent of HK$30,000,000 calculated on the basis of the Agent’s Spot Rate of Exchange on the date of calculation by such member of the Group; and
(or its equivalent in another currency or currenciesix) any Financial Indebtedness incurred with the prior written consent of the Facility Agent (acting on the instructions of the Majority Lenders).
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (and the Company Parent shall ensure that no other member of the Group will) incur (or agree permit to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred incurred pursuant to in paragraph (b) any factoring arrangement by any member of Clause 23.6 (Loans and guarantees)the Group for so long as such obligation is not classified as borrowings under GAAP;
(ii) any Financial Indebtedness arising under incurred pursuant to any Finance Documents and any refinancing thereof except, in each case, to the extent the principal amount of such Financial Indebtedness (other than any upfront fees, original issue discount and the amount of reasonable expenses incurred in connection therewith) exceeds the amount incurred pursuant to any Finance Documents;
(iii) any Financial Indebtedness of a company which becomes a member of the Group after existing as at the date of this AgreementAgreement listed in Schedule 8 (Existing Security and Financial Indebtedness) and any refinancing thereof except, where in each case, to the extent the principal amount of such Financial Indebtedness is incurred prior to (other than any upfront fees, original issue discount and the date on which that company becomes a member amount of the Group if:
(A) the Financial Indebtedness was not reasonable expenses incurred in contemplation of connection therewith) exceeds the acquisition of amount stated in that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the GroupSchedule;
(iv) any Financial Indebtedness permitted under between any members of the Group referred to in paragraph (b) of Clause 23.19 21.11 (HedgingLoans and guarantees);
(v) any Financial Indebtedness incurred pursuant to any hedging transactions entered into by any member of the extent covered by a guaranteeGroup for the purpose of fixing or hedging interest rate, bond commodity or letter currency risk in the ordinary course of credit issued business for bona fide hedging purposes, provided that the notional principal amount of any such obligations under an Ancillary Facility;such hedging transactions with respect to interest rates does not exceed the amount of Financial Indebtedness or other liability to which such obligation relates; or
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness the principal amount of which (when aggregated with the principal amount of any other than falling within paragraph (g) Financial Indebtedness incurred by any member of the definition of Financial Indebtedness) provided that Group, including any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within incurred under paragraphs (i) to (viiv) above but excluding any Financial Indebtedness incurred under paragraph (v) above, ) from time to time complies with the aggregate outstanding principal amount financial covenant set out in paragraph (b) of which across Clause 20.2 (Financial condition) (tested on a pro forma basis by reference to the Group does not at any time exceed [***] (or its equivalent in another currency or currenciesthen most recent Filed Financial Statements after giving effect to the arrangements contemplated by such transaction).
Appears in 1 contract
Samples: Secured Facility Agreement (Amkor Technology, Inc.)
Financial Indebtedness. The Issuers shall not, and shall not permit any Note Party or any member of the GMHI Group to, incur, issue or at any time be liable with respect to any Financial Indebtedness, except:
(a) No Obligor shall (this Note and the Company shall ensure that no other member of the Group will) incur (or agree to incur) or have outstanding any Financial Indebtedness.Obligations;
(b) Paragraph the Senior Notes (a) above does not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guaranteesany Permitted Refinancing thereof);
(iic) Financial Indebtedness arising under existing on the Finance Documentsdate hereof to the extent listed in Schedule 11.2 (and any Permitted Refinancing thereof);
(iiid) (x) any Qualifying Debt Transaction and convertible debt securities issued pursuant to a Qualifying Equity Transaction, so long as the Issuers have complied with Section 6.2 with respect to such Qualifying Debt Transaction or Qualifying Equity Transaction and (y) any Permitted Refinancing thereof;
(e) unsecured Financial Indebtedness of a company which becomes Note Party or any member of the GMHI Group owing to a Note Party or any Subsidiary of a Note Party (subject in the case of any such Financial Indebtedness involving a member of the GMHI Group after the date of this Agreement, where the Financial Indebtedness with a Person who is incurred prior to the date on which that company becomes not a member of the GMHI Group if:
(A) to the Financial Indebtedness was not incurred prepayment requirements being satisfied as set forth in contemplation of the acquisition of that companySection 6.2(e)(i)(y));
(Bf) the Guarantees of Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a any Note Party by any member of the GMHI Group;
(ivg) Operating Indebtedness of any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to member of the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the FacilitiesGMHI Group; and
(Ch) the proceeds are applied Capitalized Lease Obligations in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) an aggregate principal amount not to exceed at any time outstanding $10,000,000. If any Financial Indebtedness (other than falling within paragraph (gthe Obligations and Capitalized Lease Obligations) of the definition Note Parties is secured by a Lien on any assets of any Person or receives the benefit of guarantees or is otherwise an obligation of any Note Party or other Person (including, for the avoidance of doubt, a full recourse guarantee or direct obligation of a Note Party or other Person) that the Holder does not have (including as to scope of direct or guaranteed obligations), the Issuers shall concurrently with the incurrence or issuance of such Financial Indebtedness cause the Obligations to be subject to the benefit of the same group of obligors (including as to scope of any such direct or guaranteed obligations) and secured by any such assets on the same basis as such Financial Indebtedness) provided that . If the Note Parties shall hereafter be required to cause the Obligations to be secured equally and ratably with any Financial Indebtedness referred pursuant to this Section 11.2, the Administrative Issuer will promptly deliver to the Holder an officer’s certificate signed by a Responsible Officer to the effect that the foregoing covenant has been complied with, and an opinion of counsel to the Administrative Issuer from counsel that is reasonably acceptable to the Holder to the effect that in paragraphs (h) the opinion of such counsel the foregoing covenant has been complied with and that any instruments executed by the Note Party or (j) any other Person in the performance of the definition foregoing covenant comply with the requirements of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies)foregoing covenant.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (and Restriction on the Company shall ensure that no other member incurrence of the Group will) incur (or agree to incur) or have outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to. Permitted exceptions to include:
(i) any Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)which constitutes New Shareholder Injections;
(ii) any Financial Indebtedness arising from Portfolio Company Liabilities and/or any liabilities under the Finance DocumentsMerger Documents or the Consortium Agreement provided that such Financial Indebtedness will be funded by New Shareholder Injections;
(iii) any Financial Indebtedness incurred for the purpose of a company any Permitted Acquisition which becomes a member is not incurred under paragraph (vi) below and the incurrence of the Group after the date of this Agreement, where the such Financial Indebtedness is incurred prior consented to by the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the GroupMajority Lenders;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging)Refinancing Indebtedness;
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facilityindebtedness between Group Members;
(vi) Permitted Existing any other Financial Indebtedness;Indebtedness which do not fall under any other paragraphs hereunder, provided that the aggregate principal amount of indebtedness pursuant to this paragraph (vi) shall not exceed US$200,000,000 at any time; and
(vii) Financial Indebtedness arising from any Onshore Acquisition Facility where the issuance or issuances net proceeds of one or more convertible or regular bonds such financial indebtedness is used primarily for the purpose of repaying and/or refinancing the Term Facility as part of Debt Push-down. Any permitted financial indebtedness in connection with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) loans made by a Group Member to another Group Member over a threshold to be agreed and any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or shareholder debt shall be subordinated to the Facilities; and
(C) Term Facility at the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) terms of the definition of Financial IndebtednessIntercreditor Agreement or at terms otherwise satisfactory to the Agent. Any permitted financial indebtedness in connection with a Permitted Acquisition may be on a certain funds basis, and the applicable requirements shall be tested (and may be deemed satisfied) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) as at the time of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) agreement to (vi) above, acquire the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies)relevant target.
Appears in 1 contract
Samples: Commitment Letter (Centurium Capital Partners 2018, L.P.)
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that Except as provided below, no other member of the Group will) may incur (or agree to incur) or have outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)incurred under the Finance Documents;
(ii) Financial Indebtedness arising under any derivative transaction protecting against fluctuations in any rate or price entered into in the Finance Documentsordinary course of business (and not for speculative purposes);
(iii) any Financial Indebtedness of a company which becomes incurred by a member of the Group after to replace or renew on substantially similar terms (but without increasing the date actual principal amount outstanding thereunder at the time of this Agreement, where the replacement or renewal and excluding any Financial Indebtedness is incurred redeemed or repaid directly or indirectly from the making of a Credit) facilities existing prior to the date on 24th February, 2003 which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Groupfall due for final repayment;
(iv) any Financial Indebtedness permitted under Clause 23.19 owed by a Non-Obligor (Hedging)other than a Subsidiary of a Borrower) to any other member of the Group;
(v) any Financial Indebtedness owed by a Guarantor to another member of the Group provided that the claims of the member of the Group against that Guarantor have been subordinated to the extent covered by satisfaction of the Facility Agent (under a guarantee, bond Subordination Agreement or letter of credit issued under an Ancillary Facilityotherwise);
(vi) Permitted Existing any Financial IndebtednessIndebtedness owed by a Borrower or any Subsidiary of a Borrower to another member of the Group at the date of this Agreement provided that the claim of the member of the Group against that Borrower or Subsidiary of a Borrower have been subordinated to the satisfaction of the Facility Agent (under a Subordination Agreement or otherwise);
(vii) Financial Indebtedness arising from owed by a member of the issuance Group (other than an Obligor or issuances a Subsidiary of one a Borrower) to any person not being a member of the Group which in aggregate at any time does not exceed (euro)50,000,000 or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) its equivalent at any such bond issued is unsecuredtime;
(Bviii) any such bond ranks pari passu with, other Financial Indebtedness of any member of the Group (other than a Borrower or subordinated to any Subsidiary of a Borrower) where the Facilities; and
(C) the net proceeds are applied in or towards prepayment of the Credits in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue ProceedsMandatory prepayment - debt or equity or capital markets issue); and;
(viiiix) any Financial Indebtedness permitted by Clause 21.13 (other than falling within paragraph Loans out); or
(gx) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) owed by any member of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the Group under finance or capital leases which in aggregate outstanding principal amount of which across the Group does not at any time does not exceed [***] (euro)50,000,000 or its equivalent in another currency or currencies)at any time.
(c) The Stop and Shop Supermarket Company undertakes not to make any payment to Pentateuch CV.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure procure that no other member of the Bank Group will) incur (shall), without the prior written consent of an Instructing Group incur, create or agree permit to incur) subsist or have outstanding any Financial Indebtedness.Indebtedness or enter into any agreement or arrangement whereby it is entitled to incur, create or permit to subsist any Financial Indebtedness other than in either case:
(a) Financial Indebtedness arising under or pursuant to the Finance Documents (including in respect of any outstanding Documentary Credit and arising in respect of any Alternative Baseball Financing) and under or pursuant to the Bridge Finance Documents;
(b) Paragraph Existing Financial Indebtedness provided that the Existing Credit Facilities shall be repaid in full immediately upon the making of the first Advance under this Agreement;
(ac) above does not apply toFinancial Indebtedness arising in respect of:
(i) Financial Indebtedness referred to the Existing High Yield Notes and the subordinated unsecured guarantee given by the Company in paragraph (b) of Clause 23.6 (Loans and guarantees)respect thereof;
(ii) Financial Indebtedness arising under the Finance DocumentsNew High Yield Notes and any subordinated unsecured guarantee granted by the Company in respect of such New High Yield Notes provided that the New High Yield Notes and such guarantee will be subject to the provisions of the HYD Intercreditor Agreement;
(iii) the Additional High Yield Notes and any subordinated unsecured guarantee granted by the Company in respect of such Additional High Yield Notes, provided that the Additional High Yield Notes and such guarantee will be subject to the provisions of the HYD Intercreditor Agreement or will be subordinated pursuant to another intercreditor arrangement satisfactory to the Facility Agent or on terms substantially identical to the HYD Intercreditor Agreement mutatis mutandis (the Supplemental Additional High Yield Notes Intercreditor Agreement), provided, that no Default or Event of Default is outstanding or occurs as a result of the issuance of the Additional High Yield Notes, and provided further that the proceeds thereof (after deducting all reasonable fees, commissions, costs and expenses incurred by any member of the Group in connection with such raising) are applied as required by Clause 12.5(a)(ii) (Repayment from Debt Proceeds);
(iv) any High Yield Refinancing and any guarantee given by any member of the Bank Group in respect thereof, provided that such guarantee is given on a subordinated unsecured basis and is subject to the terms of the HYD Intercreditor Agreement or given on subordination terms consistent with those contained in the HYD Intercreditor Agreement;
(d) Financial Indebtedness of any member of the Bank Group falling within, and permitted by Clause 25.3 (Loans and Guarantees);
(e) Financial Indebtedness arising under any Hedging Agreements permitted under Clause 25.12 (Limitations on Hedging);
(f) Financial Indebtedness arising in relation to either an Asset Passthrough or a Funding Passthrough;
(g) Financial Indebtedness of any company which became or becomes a member of the Bank Group after the date of this AgreementOriginal Execution Date, where the such Financial Indebtedness is incurred arose prior to the date on which that such company became or becomes a member of the Group Bank Group; if:
(Ai) the such Financial Indebtedness was not incurred created in contemplation of the acquisition of that such company;
(Bii) the aggregate principal amount of all of the Financial Indebtedness assumed in reliance on this paragraph (g) either (1) does not exceed 85 million (or its equivalent in other currencies) outstanding at any time or (2) to the extent such Financial Indebtedness does exceed 85 million, an amount equal to such excess is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Grouprepaid promptly thereafter;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(viih) Financial Indebtedness arising from in respect of any guarantee given by the issuance Company or issuances TCN or any other member of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] the Bank Group in respect of the relevant borrowers obligations under any Parent Debt (Guaranteed Parent Debt), provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(Ci) the proceeds of such Guaranteed Parent Debt are applied contributed into the Bank Group in accordance with Clause 9.5 24.15 (Capital Market Issue ProceedsContributions to the Bank Group) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs applied either (i) to (vi) above, the aggregate outstanding principal amount of which across towards the Group does not at Business or in a business whose primary operations are directly related to the Group Business or (ii) towards the refinancing of any time exceed [***] (or its equivalent in another currency or currencies).outstanding Indebtedness of the Bank Group; and
Appears in 1 contract
Financial Indebtedness. (a) No Except as permitted under paragraph (b) or paragraph (c) below, no Obligor shall (and the Company Borrower shall ensure that no other member of the Group will) incur (or agree allow to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)which is incurred under the Bridge Finance Documents;
(ii) Financial Indebtedness arising which is incurred under the Senior Finance DocumentsDocuments (to the extent permitted under the Intercreditor Agreement);
(iii) any Financial Indebtedness arising under the High Yield Notes Documents as amended from time to time in accordance with this Agreement;
(iv) any Financial Indebtedness arising under:
(i) any on-loan of the proceeds of the PIK Facility made by PIKCo to the Borrower; or
(ii) the High Yield Inter-Company Loan Agreement (if any), that is, in each case, subordinated pursuant to the Intercreditor Agreement.
(v) Capitalised Lease Obligations incurred by the Borrower or any of its Subsidiaries provided that such Capitalised Lease Obligations are with another member of the Group or:
(A) do not result in a company breach of the undertaking as to maximum Capital Expenditure in paragraph (d) of Clause 19.2 (Financial condition);
(B) are on arm’s length terms; and
(C) to the extent that the aggregate amount of the principal element of such Capitalised Lease Obligations, calculated in accordance with the Accounting Principles, does not at any time exceed €75,000,000 (or its equivalent in other currencies);
(vi) monies borrowed under a loan from another member of the Group which becomes is permitted under Clause 20.13 (Loans or credit), or any guarantee given by a member of the Group which is permitted under Clause 20.14 (No guarantees or indemnities);
(vii) Financial Indebtedness to the extent covered by a letter of credit issued under the Senior Facilities or other letter of credit, guarantee or indemnity issued under an Ancillary Facility or a Fronted Ancillary Facility (each as defined in the Senior Facilities Agreement);
(viii) Financial Indebtedness in respect of any transaction which is a Treasury Transaction permitted by Clause 20.27 (Treasury Transactions);
(ix) any Financial Indebtedness arising under any cash management or cash pooling arrangement to the extent entered into in the ordinary course of its banking arrangements for the purpose of netting balances of members of the Group at the end of each day and provided that at all times following the date falling three Months after the Closing Date, the aggregate of debit balances of members of the Group other than Senior Obligors under all such arrangements that are supported by Senior Obligors does not exceed €125,000,000 (or its equivalent in other currencies) in aggregate at any time;
(x) the discounting of bills or notes in the ordinary course of trading, provided that, for avoidance of doubt, this does not permit the entering into of receivables discounting facilities on a with recourse basis;
(xi) any Financial Indebtedness arising under any Vendor Financing;
(xii) any Financial Indebtedness under an Investor Document or a Permitted Subordinated Debt Document as amended from time to time in accordance with this Agreement;
(xiii) any Financial Indebtedness incurred by any member of the Group as a result of the implementation or completion of any step set out in the Structure Memorandum;
(xiv) any Financial Indebtedness of the Target Group outstanding on the Closing Date provided such indebtedness is repaid or prepaid within three Months of the Closing Date (save as otherwise permitted in this sub-paragraph (b));
(xv) any Financial Indebtedness under the Target Bonds and the 2006 Target Bonds;
(xvi) any Financial Indebtedness incurred for the purpose of repaying or redeeming amounts outstanding under or otherwise acquiring any Target Bonds provided that:
(A) the scheduled maturity date of such Financial Indebtedness does not fall prior to the date falling 108 months after the Closing Date; and
(B) the borrower of such Financial Indebtedness shall be the borrower of the Target Bonds to be repaid, redeemed or otherwise acquired;
(xvii) any Financial Indebtedness incurred which falls under paragraph (g) of the definition of Financial Indebtedness;
(xviii) Financial Indebtedness of any person acquired by a member of the Group after the Closing Date which is outstanding under arrangements in existence at the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group ifacquisition (provided that:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming entity by a member of the Group;
(ivB) any the principal amount of such Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount is not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu withincreased in contemplation of, or subordinated to after the Facilitiesdate of, the acquisition (otherwise than by the capitalisation of interest); and
(C) such Financial Indebtedness is repaid within 6 Months of the proceeds date of the acquisition);
(xix) any Financial Indebtedness of HTCC;
(xx) any loan made by Holdco to any member of the Group in connection with the payment of Taxes which are applied in accordance with Clause 9.5 attributable to the business of the Group which are on terms satisfactory to the Bridge Facility Agent (Capital Market Issue Proceedsacting reasonably);
(xxi) any Financial Indebtedness incurred under the “Qualified Technological Equipment Lease” US cross-border sale and Clause 9.8 (Application leaseback transactions entered into by one or more members of Capital Market Issue Proceeds)the Target Group prior to the date of this Agreement; and
(viiixxii) any Financial Indebtedness (other than falling within paragraph (g) of the definition Borrower or any of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of its Subsidiaries not otherwise permitted by the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within preceding paragraphs (i) to (vixxi) above, the (inclusive) in an aggregate outstanding principal amount of which across the Group does outstanding not at any time exceed [***] exceeding €100,000,000 (or its equivalent in another currency other currencies) at any time.
(c) The Borrower may not, prior to the Closing Date, incur any Financial Indebtedness for the purpose of financing Market Purchases unless:
(i) such Financial Indebtedness is Permitted Subordinated Debt; or
(ii) such Financial Indebtedness is provided by third party lenders on terms such that it will be capable of being refinanced on, and any Security provided in support of that Financial Indebtedness will be released on, the Closing Date.
(d) The Borrower shall be obliged:
(A) to refinance any Financial Indebtedness incurred by it under sub-paragraph (ii) above, through an Initial Loan;
(B) to cancel any available facility in respect of Market Purchases made available to it in accordance with sub-paragraph (ii) above;
(C) procure the release of any Security which it has granted in support of any Financial Indebtedness incurred by it under sub-paragraph (ii) above; and
(D) provide a certificate from the relevant third party lender that it has no further claims against the Borrower in respect of any such Financial Indebtedness incurred by it under, or currencies)facility made available to in accordance with sub-paragraph (ii) above,
(e) in each case on or before the first Utilisation Date.
Appears in 1 contract
Samples: Bridge Facility Agreement (Nordic Telephone CO ApS)
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that no other member of the Restricted Group will) may incur (or agree permit to incur) or have be outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply toIndebtedness other than:
(i) Financial Indebtedness referred owed by a member of the Restricted Group to in paragraph (b) another member of Clause 23.6 (Loans and guarantees);the Restricted Group; and
(ii) Financial Indebtedness arising permitted under paragraphs (b), (c) and (d) below.
(b) Except as provided in clause (d) below, no Obligor or a member of the Finance DocumentsOnshore Group which is a Restricted Subsidiary may incur or permit to be outstanding any Financial Indebtedness other than Financial Indebtedness which at the time of, and after, such incurrence or permission to be outstanding the Company is in compliance with:
(i) Clause 19.3 (Gearing) as calculated by reference to the most recently delivered financial statements adjusted by including such Financial Indebtedness and all Consolidated Total Borrowings incurred by the Restricted Group since the date of the most recently delivered financial statements up to the proposed date of incurrence or permission to be outstanding of such Financial Indebtedness;
(ii) Clause 19.4 (Leverage) as calculated by reference to the most recently delivered financial statements adjusted by including such Financial Indebtedness and all Consolidated Total Borrowings incurred by the Restricted Group since the date of the most recently delivered financial statements up to the proposed date of incurrence or permission to be outstanding of such Financial Indebtedness and tested against the multiple of Consolidated EBITDA applicable to the Measurement Period that is first to expire after such time; and
(iii) Clause 19.6 (Interest cover) as calculated by reference to the most recently delivered financial statements adjusted by including the finance costs of such Financial Indebtedness and all other finance costs incurred by the Restricted Group since the date of the most recently delivered financial statements up to the proposed date of incurrence or permission to be outstanding of such Financial Indebtedness.
(c) Except as provided in clause (d) below, no member of the Onshore Group which is a Restricted Subsidiary may incur any Financial Indebtedness of a company other than Financial Indebtedness which becomes at the time of, and after, such incurrence, the Company is in compliance with Clause 19.5 (Onshore Leverage) as calculated by reference to the most recently delivered financial statements adjusted by including such Financial Indebtedness and all Consolidated Total Onshore Borrowings incurred by a member of the Onshore Group after which is a Restricted Subsidiary since the date of the most recently delivered financial statements up to the proposed date of incurrence or permission to be outstanding of such Financial Indebtedness.
(d) In addition to any Financial Indebtedness permitted to be incurred under paragraphs (a) through (c) above, members of the Restricted Group may incur Financial Indebtedness:
(i) that refinances the Restricted Group’s existing Financial Indebtedness as of the date of this Agreement, where so long as such Financial Indebtedness (i) has an aggregate outstanding principal amount not greater than the aggregate principal amount of the Financial Indebtedness is incurred prior to being refinanced plus accrued interest, fees and expenses, premiums and make-whole payments related thereto, (ii) has a weighted average maturity (measured as of the date on which of such refinancing) and maturity no shorter than that company becomes a member of the Group if:
(A) the Financial Indebtedness was being refinanced, (iii) is not incurred in contemplation of secured by a Security Interest on any assets other than the acquisition of that company;
(B) collateral securing the Financial Indebtedness is repaidbeing refinanced, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any the obligors of which are the same as the obligors of the Financial Indebtedness permitted under Clause 23.19 (Hedging);
being refinanced and (v) any is otherwise on terms no less favourable to the Restricted Group, taken as a whole, than those of the Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilitiesbeing refinanced; and
(Cii) the proceeds are applied which in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (US$10,000,000 or its equivalent in another currency or currencies)currencies at any time.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall Except as provided in paragraph (and the Company shall ensure that b) below, no other member of the Group will) may incur (or agree permit to incur) or have be outstanding any Financial IndebtednessIndebtedness or enter into any off-balance sheet financing arrangement; provided, however, that any Obligor may incur Financial Indebtedness if on the date of such incurrence (using the figures in the then-last delivered Compliance Certificate as a basis-point) and after giving effect thereto and, where such Financial Indebtedness is to be used for the purposes of a Permitted Acquisition, on a pro forma basis as if such proposed Permitted Acquisition had been effected (including any cost savings and synergies reasonably expected to be achieved in the second year following such Permitted Acquisition), the ratio of the Consolidated Total Net Borrowings to Consolidated Pro Forma EBITDA is less than 4.00:1.00.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans incurred under the Senior Finance Documents, the Securities and guarantees)any Bond Refinancing Debt;
(ii) any Financial Indebtedness arising of any person (the “acquired person”) acquired by a member of the Group after the First Drawdown Date which is incurred under arrangements in existence at the Finance Documentsdate of acquisition, but not incurred or increased or its maturity date extended in contemplation of, or since, that acquisition provided that notwithstanding anything else contained in this Agreement no member of the Group (excluding the acquired person and its Subsidiaries as at the date of acquisition) shall guarantee, indemnify or otherwise become liable for such Financial Indebtedness, provide Cash Cover in respect of or grant any Security Interest as security for such Financial Indebtedness;
(iii) any Financial Indebtedness under finance or capital leases of a company which becomes a member vehicles, plant, equipment or computers and any Financial Indebtedness under conditional sale agreements or other agreements for the acquisition of assets on deferred payment terms, provided that the aggregate capital value of all such assets so leased or acquired under outstanding leases or outstanding conditional sale agreements or agreements for the acquisition of assets by members of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was does not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Groupexceed €150,000,000;
(iv) any Financial Indebtedness arising under any Treasury Transaction permitted under Clause 23.19 pursuant to Subclause 23.13 (HedgingTreasury Transactions);
(v) any Financial Indebtedness arising under any loan permitted under Subclause 23.14 (Loans out) and Subclause 23.16 (Dividends);
(vi) any Financial Indebtedness arising under the loan of €125,000,000 by SPV B.V. made under the SPV B.V. Loan Agreement;
(vii) any Financial Indebtedness arising under guarantees permitted under Subclause 23.12 (Third party guarantees);
(viii) any Financial Indebtedness to the extent covered by a guarantee, bond Documentary Credit or a letter of credit or guarantee issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viiiix) any Financial Indebtedness (other than falling within paragraph (g) consisting of the definition of Financial IndebtednessRemaining Debt in an aggregate principal amount at any time outstanding not exceeding €190,000,000;
(x) provided that any Financial Indebtedness referred to under the Cash Pooling Facilities in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the an aggregate outstanding principal amount of which across the Group does not at any time not exceeding €60,000,000;
(xi) any Financial Indebtedness consisting of letters of credit and bank guarantees to support rental obligations, performance bonds or similar obligations;
(xii) any Financial Indebtedness required by the Structure Memorandum;
(xiii) any Financial Indebtedness incurred or outstanding pursuant to or in connection with a Permitted Receivables Securitisation;
(xiv) any Financial Indebtedness incurred by members of the Group to another member of the Group to the extent the payment of dividends or other payments are contemplated under Clause 23.16(a) (Dividends) (without double-counting); or
(xv) in addition to the aforementioned, Financial Indebtedness of members of the Group which in aggregate does not exceed [***] (€50,000,000 or its equivalent in another currency or currencies)at any time.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall Except as provided in paragraph (and the Company shall ensure that b) below, no other member of the Group will) may incur (or agree permit to incur) or have be outstanding any Financial IndebtednessIndebtedness or enter into any off-balance sheet financing arrangement.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness referred to incurred under the Finance Documents, the Seller Loan Note Instrument or the Capex Loan as in paragraph (b) force at the date of Clause 23.6 (Loans and guarantees)this Agreement;
(ii) any Financial Indebtedness arising of any person acquired by a member of the Group after Closing which is incurred under arrangements in existence at the Finance Documentsdate of acquisition, but not incurred or increased or its maturity date extended in contemplation of, or since, that acquisition, and outstanding only for a period of three months following the date of acquisition;
(iii) any Financial Indebtedness under finance or capital leases entered into before Closing provided that the terms of a company all such leases are disclosed to the Facility Agent before the date 30 days after Closing and that the terms which becomes a member apply to such leases after Closing remain those in existence before Closing, unless changed with the consent of the Group after Majority Lenders and provided also that the date aggregate capital value of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was all items so leased under all such leases entered into before Closing does not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Groupexceed $5,000,000;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging)finance or capital leases entered into after Closing, provided that the aggregate capital value of all such items so leased under outstanding leases by members of the Group does not exceed USD500,000 at any time;
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued Treasury Transaction permitted under an Ancillary FacilityClause 19.13 (Treasury transactions);
(vi) Permitted Existing any Financial IndebtednessIndebtedness permitted under Clause 19.12 (Third party guarantees) or Clause 19.14 (Loans out);
(vii) any Financial Indebtedness arising from expressly permitted in writing by the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecuredMajority Lenders;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within of any member or members of the Group not otherwise permitted by this paragraph (gb) which in aggregate (when taken together with the amount of any other indebtedness which has the definition benefit of Financial Indebtednessa Security Interest permitted under Clause19.5(c)(viii) provided that (Negative pledge)) does not exceed USD500,000 at any time; or
(ix) any Financial Indebtedness referred to in paragraphs (h) or (j) incurred by a member of the definition Group in the ordinary course of business and owed to another member of the Merix Group which is a party to the Group Subordination Agreement.
(c) This Subclause 19.7 shall not prohibit any member of the Group from incurring Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount proceeds of which across are at the Group does not at any same time exceed [***] (or its equivalent used to pay in another currency or currencies)full all amounts owing to the Finance Parties and the Agents by the Obligors under the Finance Documents.
Appears in 1 contract
Samples: Credit Agreement (Merix Corp)
Financial Indebtedness. (a) No Obligor shall (and the The Company shall ensure that no Group Company (other member than a Sappi Manufacturing Group Company and each of Sappi International SA, the Group willCompany and the Borrower (for so long as such entity is an Obligor)) shall incur (or agree to incur) or have outstanding any Financial Indebtedness other than Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness under any Finance Document or referred to in paragraph Schedule 10 (b) of Clause 23.6 (Loans and guaranteesExisting External Indebtedness);
(ii) Financial Indebtedness arising under the Finance Documents;
(iii) any Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation respect of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid any derivative or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness hedging transaction permitted under pursuant to Clause 23.19 21.17 (Hedging);
(viii) incurred pursuant to any sale and leaseback transaction where the aggregate principal amount of Financial Indebtedness to the extent covered which all such sale and leaseback transactions relate does not exceed Euro 100,000,000 (or its equivalent in any currency or currencies) at any time;
(iv) arising in circumstances permitted in Clause 21.13 (Loans and Guarantees);
(v) of any person acquired by a guaranteeGroup Company after the date of this Agreement which is incurred under arrangements in place at the date of acquisition but not incurred or increased or having its maturity date extended in contemplation of, bond or letter since, that acquisition, and outstanding only for a period of credit issued under an Ancillary Facilityno longer than three months following the date of acquisition;
(vi) Permitted Existing Financial Indebtednessraised under any current account, overdraft, letter of credit, foreign exchange, SWIFT, and BACS facilities made available by local banks, the aggregate principal amount of which does not exceed Euro 100,000,000 (or its equivalent in any currency or currencies) at any time;
(vii) Financial Indebtedness arising from under any cash pooling or management agreement in the issuance or issuances ordinary course of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecuredbanking arrangements for the purpose of netting debt and credit balances between Group Companies;
(Bviii) any such bond ranks pari passu withuntil the date of the first Utilisation of the RCF Facility, under the Existing RCF Facility;
(ix) arising under the New Financings or subordinated the loan by PE Paper Escrow GmbH to the FacilitiesBorrower of the proceeds of the Bonds and to the extent not already included within paragraph (a)(x) below, the Available Financings;
(x) arising under any invoice discounting, factoring or securitisation arrangement where the aggregate principal amount of Financial Indebtedness raised under all such invoice discounting, factoring or securitisation arrangements does not exceed Euro 600,000,000 at any time;
(xi) arising under finance leases, the aggregate principal amount of which does not exceed Euro 50,000,000 (or its equivalent in any currency or currencies) at any time;
(xii) arising under forward sale agreements, deferred purchase agreements and deferred payment arrangements entered into pursuant to an employee share option scheme, unit trust or management incentive scheme; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purposexiii) not falling within included in paragraphs (i) to (vixii) above, the aggregate outstanding principal amount of above inclusive but which across the Group does not at any time exceed [***] exceed, for the Group, Euro 25,000,000 (or its equivalent in another any currency or currencies)) in aggregate principal amount at any time.
(b) The Company shall ensure that the aggregate principal amount of Sappi Manufacturing Group Indebtedness does not exceed South African Rand 5.5 billion (or its equivalent in any currency or currencies) at any time.
Appears in 1 contract
Samples: Amending Agreement (Sappi LTD)
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that Except as provided below, no other member of the Group will(other than the Company) incur (or agree to incur) or may have outstanding or incur any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)incurred under the Finance Documents, the Mittal Bridge Facility or the Mittal Acquisition Facility;
(ii) any Financial Indebtedness arising under of any Subsidiary of the Finance DocumentsCompany or of the Target or its Subsidiaries outstanding as at the date of this Agreement, but only to the extent that:
(A) the principal amount of any such Financial Indebtedness is not increased;
(B) the maturity of any such Financial Indebtedness is not extended; and
(C) such Financial Indebtedness is not refinanced, in each case after the date of this Agreement;
(iii) any Financial Indebtedness of a company which becomes any person acquired by a member of the Group after which is incurred under arrangements in existence at the date of this Agreementacquisition, where but only for a period of six months from the date of acquisition and only to the extent the principal amount of the Financial Indebtedness is has not been incurred prior to or increased in contemplation of, or since, the date on which that company becomes a acquisition;
(iv) Financial Indebtedness owed by one member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that companyto another;
(Bv) the Financial Indebtedness is repaidunder any forward or spot delivery foreign exchange contracts or other derivative instruments relating to currency or interest rate hedging, prepaid in each case entered into for the sole purpose of hedging in the ordinary course of trading;
(vi) any Financial Indebtedness of the Target or cancelled its Subsidiaries on the date the Target forms part of the Group, incurred in full within [***] connection with the refinancing of that company becoming any Financial Indebtedness of Target or any of its Subsidiaries outstanding on the date Target becomes a member of the Group;
(ivvii) any Financial Indebtedness permitted outstanding under Clause 23.19 (Hedging)any notes or bonds issued by the Target Group of which the Mandated Lead Arrangers are aware on the date of this Agreement;
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Project Finance Indebtedness; or
(ix) Financial Indebtedness secured by a Security Interest permitted under Clause 20.5(b)(xvi) (Negative Pledge) and other than falling within paragraph (g) of the definition of Financial Indebtedness) , provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across all Financial Indebtedness covered by this sub paragraph does not exceed 15 per cent. of the book value of the consolidated assets of the Group does not at any time exceed [***] (or its equivalent in another currency or currencies).at any time. Table of Contents
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (and the The Company shall ensure that no Group Company (other member than a Sappi Southern Africa Group Company and each of SISA, the Group willCompany and the Borrower (for so long as such entity is an Obligor)) shall incur (or agree to incur) or have outstanding any Financial Indebtedness other than Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness under any Finance Document or to be referred to in paragraph Schedule 3 (bExisting Subsidiary External Indebtedness) of Clause 23.6 (Loans and guarantees)the Side Letter;
(ii) Financial Indebtedness arising under the Finance Documents;
(iii) any Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation respect of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid any derivative or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness hedging transaction permitted under pursuant to Clause 23.19 21.18 (Hedging);
(viii) incurred pursuant to any sale and leaseback transaction where the aggregate principal amount of Financial Indebtedness to the extent covered which all such sale and leaseback transactions relate does not exceed EUR 100,000,000 (or its equivalent in any currency or currencies) at any time;
(iv) arising in circumstances permitted in Clause 21.13 (Loans and Guarantees);
(v) of any person acquired by a guaranteeGroup Company after the date of this Agreement which is incurred under arrangements in place at the date of acquisition but not incurred or increased or having its maturity date extended in contemplation of, bond or letter since, that acquisition, and outstanding only for a period of credit issued under an Ancillary Facilityno longer than three months following the date of acquisition;
(vi) Permitted Existing Financial Indebtednessraised under any current account, overdraft, letter of credit, foreign exchange, SWIFT, and BACS facilities made available by local banks, the aggregate principal amount of which does not exceed EUR 100,000,000 (or its equivalent in any currency or currencies) at any time;
(vii) Financial Indebtedness arising from under any cash pooling or management agreement in the issuance or issuances ordinary course of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecuredbanking arrangements for the purpose of netting debt and credit balances between Group Companies;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) arising under the Existing Financings, this Facility or the loan by PE Paper Escrow GmbH to the Borrower of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) proceeds of the definition 2009 Bonds;
(ix) arising under any invoice discounting, factoring or securitisation arrangement where the aggregate principal amount of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) aboveraised under all such invoice discounting, the aggregate outstanding principal amount of which across the Group factoring or securitisation arrangements does not at any time exceed [***] EUR 600,000,000 (or its equivalent in another currency or currencies)) at any time;
(x) arising under finance leases, the aggregate principal amount of which does not exceed EUR 50,000,000 (or its equivalent in any currency or currencies) at any time;
(xi) arising under forward sale agreements, deferred purchase agreements and deferred payment arrangements entered into pursuant to an employee share option scheme, unit trust or management incentive scheme; and
(xii) not included in paragraphs (i) to (x) above inclusive but which does not exceed, for the Group, EUR 75,000,000 (or its equivalent in any currency or currencies) in aggregate principal amount at any time.
(b) The Company shall ensure that the aggregate principal amount of Sappi Southern Africa Group Indebtedness does not exceed South African Rand 6,500,000,000 (or its equivalent in any currency or currencies) at any time.
Appears in 1 contract
Financial Indebtedness. (aA) No Obligor shall (and the Company Borrower shall ensure that no other member of the Group will) incur (create, incur, assume, or agree to incur) or have outstanding be liable for any Financial Indebtedness.
(bB) Paragraph (aClause 19.5(A) above does not apply to:
(i1) Financial Indebtedness referred SVB credit card facilities and other ancillary facilities up to a maximum of £500,000 or its equivalent in paragraph other currencies (b) of Clause 23.6 (Loans and guaranteesin aggregate);
(ii2) $2,859,824 made available to the US Obligor under the US Paycheck Protection Program;
(3) the Obligor’s Financial Indebtedness arising to the Finance Parties under the Finance Documents;
(iii4) any Financial Indebtedness of the Original Borrower created under the Intra-Group Loan Note Instrument up to a company which becomes maximum aggregate amount of up to an amount equivalent to the product of the Original Facility Amount and the SPAC Conversion Multiple, and provided that:
(a) such Financial Indebtedness:
(i) is owed to the Borrower;
(ii) is at all times contractually subordinated in right of payment to amounts owing under the Facility Agreement; and
(iii) has a specified maturity falling after and is repaid or prepaid only after amounts owing under the Facility Agreement have been repaid or prepaid in full;
(b) no payment in relation to such Financial Indebtedness is permitted until all amounts owing under the Facility Agreement have been paid and discharged in full;
(c) the Borrower’s rights in respect of such Financial Indebtedness is subject to valid Transaction Security created pursuant to the Intra-Group Loan Note Charge; and
(d) any other terms of the Intra-Group Loan Note Instrument not specified in this item (4) are satisfactory in form and substance to the Arranger (acting reasonably);
(5) Financial Indebtedness in respect of rent deposits up to a maximum aggregate amount of £250,000 (or its equivalent in other currencies);
(6) Financial Indebtedness existing on the date of this Agreement that the Agent has previously approved in writing;
(7) unsecured Financial Indebtedness subordinated to the obligations due to the Finance Parties hereunder on terms satisfactory to the Agent and the Arranger (each acting reasonably);
(8) unsecured Financial Indebtedness to trade creditors incurred in the ordinary course of business;
(9) Financial Indebtedness incurred as a result of endorsing negotiable instruments received in the ordinary course of business;
(10) Financial Indebtedness arising under a foreign exchange transaction for spot or forward delivery entered into in connection with protection against fluctuation in currency rates where that foreign exchange exposure arises in the ordinary course of trade, but not a foreign exchange transaction for investment or speculative purposes;
(11) Financial Indebtedness arising under any derivative transaction entered into for the hedging of actual or projected real exposures arising in the ordinary course of trading activities of a member of the Group for a period of not more than 12 months and not for speculative purposes;
(12) of any person acquired by a member of the Group after the Closing Date which is incurred under arrangements in existence at the date of this Agreementacquisition, where the Financial Indebtedness is but not incurred prior to or increased or having its maturity date extended in contemplation of, or since, that acquisition, and outstanding only for a period of 3 months following the date on which of acquisition;
(13) under Finance Leases;
(14) under any other finance or capital leases (other than Finance Leases) of vehicles, plant, equipment or computers, provided that company becomes a member the aggregate capital value of all such items so leased under outstanding leases by members of the Group if:
does not exceed £500,000 (Aor its equivalent in other currencies) the Financial Indebtedness was not incurred in contemplation of the acquisition of that companyat any time;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose15) not falling within permitted by the preceding paragraphs (i) to (vi) above, and the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] £500,000 (or its equivalent equivalent) in another currency aggregate for the Group at any time; and
(16) extensions, refinancings, modifications, amendments and restatements of any items of Financial Indebtedness set out in paragraphs (1) to (9) above, provided that the principal amount thereof is not increased or currencies)the terms thereof are not modified to impose more burdensome terms upon any Obligor or any Subsidiary, as the case may be.
Appears in 1 contract
Samples: Term Facility Agreement (Rockley Photonics Holdings LTD)
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that Except as provided below, no other member of the Group will) may incur (or agree permit to incur) or have outstanding subsist any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred incurred under this Agreement (including under any Ancillary Facility) or the Subordinated Intercompany Loan Agreement, in force as at the date hereof, and subject to in paragraph Clause 23.37 (b) Capitalisation of Clause 23.6 (Loans and guaranteesthe Subordinated Intercompany Loan);
(ii) any Financial Indebtedness arising of any person acquired by a member of the Group which is incurred under arrangements in existence at the Finance Documentsdate of acquisition, but only for a period of 6 months from the date of acquisition and not established in contemplation of that acquisition;
(iii) any Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
derivative transaction permitted under Clause 23.24 (A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the GroupTreasury transactions);
(iv) any Financial Indebtedness loan permitted under Clause 23.19 23.25 (HedgingLoans out);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond Letter of Credit or letter of credit issued under an Ancillary Facility;; or
(vi) Permitted Existing Financial Indebtedness not otherwise permitted under the preceding sub-paragraphs which in aggregate does not exceed £10,000,000 or its equivalent at any time.
(c) The Company will procure that neither Enodis plc nor Topco will incur any Financial Indebtedness, other than:
(i) in the case only of Enodis plc, any Financial Indebtedness evidenced by Bonds or Bond Exchange Notes issued by Enodis plc in compliance with Clauses 23.28 (Bridge Loans, Bonds and Exchange Notes) and any refinancing thereof provided that such refinancing is on terms materially no more onerous than the Bonds or Bond Exchange Notes and 23.25(v) (Loans out);
(viiii) Financial Indebtedness arising from in the issuance or issuances case only of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu withEnodis plc, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness incurred under the Bridge Facility or under the Bridge Exchange Notes; or
(other than falling within paragraph (giii) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies)between Enodis plc and Topco.
Appears in 1 contract
Samples: Supplemental Agreement (Enodis PLC)
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure procure that no other member of the Bank Group will) incur (shall), without the prior written consent of an Instructing Group, incur, create or agree permit to incur) subsist or have outstanding any Financial Indebtedness.Indebtedness other than:
(a) Financial Indebtedness arising under or pursuant to the Relevant Finance Documents including under any Additional Facility (provided that the incurrence of any Financial Indebtedness under any such Additional Facility is not prohibited by this Agreement at the time of such incurrence and complies with the requirements of Clause 2.5 (Additional Facility));
(b) Paragraph Existing Financial Indebtedness provided that the Existing Senior Credit Facilities Agreement shall be repaid in full immediately upon the making of the first Advance under this Agreement;
(ac) above Financial Indebtedness arising in respect of:
(i) the Existing High Yield Notes, including the existing subordinated unsecured guarantees given by the Company and Intermediate Holdco in respect thereof;
(ii) any Additional High Yield Notes, including any subordinated unsecured guarantee granted by the Company and/or Intermediate Holdco in respect thereof in accordance with paragraph (e) of the definition of Additional High Yield Notes, provided that no Default or Event of Default is outstanding or occurs as a result of the issuance of such Additional High Yield Notes;
(iii) any High Yield Refinancing, including any subordinated unsecured guarantee granted by the Company and/or Intermediate Holdco in respect thereof in accordance with paragraph (e) of the definition of High Yield Refinancing, provided that no Default or Event of Default is outstanding or occurs as a result of such High Yield Refinancing; and
(iv) any Senior Secured Notes and any guarantee in respect thereof given by any member of the Bank Group that is an Obligor;
(d) Financial Indebtedness of any member of the Bank Group falling within, and permitted by Clause 25.3 (Loans and Guarantees);
(e) Financial Indebtedness arising under any Hedging Agreements permitted under Clause 25.12 (Limitations on Hedging);
(f) Financial Indebtedness arising in relation to either an Asset Passthrough or a Funding Passthrough;
(g) Financial Indebtedness of any company which became or becomes a member of the Bank Group after the Original Execution Date, where such Financial Indebtedness arose prior to the date on which such company became or becomes a member of the Bank Group; if:
(i) such Financial Indebtedness was not created in contemplation of the acquisition of such company;
(ii) the aggregate principal amount of all of the Financial Indebtedness assumed in reliance on this paragraph (g) either (A) does not apply to:exceed £85 million (or its equivalent in other currencies) outstanding at any time or (B) to the extent such Financial Indebtedness does exceed £85 million, an amount equal to such excess is repaid promptly thereafter;
(h) Financial Indebtedness arising in respect of any guarantee given by the Company or Intermediate Holdco in respect of the relevant borrower’s obligations under any Parent Debt, provided that any such guarantee is given on a subordinated unsecured basis and is subject to the terms of the HYD Intercreditor Agreement, the Group Intercreditor Agreement or any other applicable intercreditor agreement in form satisfactory to the Facility Agent;
(i) Financial Indebtedness referred which constitutes Subordinated Funding provided that each Obligor that is a debtor in respect of Subordinated Funding shall (and the Company shall procure that each member of the Bank Group that is a debtor in respect of Subordinated Funding shall) procure that the relevant creditor of such Subordinated Funding, to the extent not already a party at the relevant time, accedes to the Group Intercreditor Agreement and the HYD Intercreditor Agreement, as appropriate, in paragraph (b) such capacity, upon the granting of Clause 23.6 (Loans and guarantees)such Subordinated Funding;
(iij) Financial Indebtedness arising under the (i) Finance Documents;
Leases or (iiiii) any Financial Indebtedness of a company which becomes a member of the Group after the date of this AgreementVendor Financing Arrangements, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond that such Finance Leases and/or Vendor Financing Arrangements (x) comprise Existing Vendor Financing Arrangements or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance any refinancing or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu withrollover thereof, or subordinated to (y) comprise Finance Leases and/or Vendor Financing Arrangements entered into after the Facilities; and
Original Execution Date, provided that in the case of clauses (Cx) and (y) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group thereof does not at any time exceed [***] £165 million plus the principal amount of such Finance Leases and Vendor Financing Arrangements outstanding on the Original Execution Date; and provided further that, in each case, the relevant lessor or provider of Vendor Financing Arrangements does not have the benefit of any Encumbrance other than over the assets the subject of such Vendor Financing Arrangements and/or Finance Leases;
(k) Financial Indebtedness relating to deferral of PAYE taxes with the agreement of H.M. Revenue & Customs by any member of the Bank Group;
(l) Financial Indebtedness arising in respect of Existing Performance Bonds or any performance bond, guarantee, standby letter of credit or similar facility entered into by any member of the Bank Group to the extent that cash is deposited as security for the obligations of such member of the Bank Group thereunder;
(m) Financial Indebtedness not falling within paragraphs (a) to (l) above of any members of the Bank Group provided that the aggregate amount of such Financial Indebtedness outstanding at any time when taken together with the aggregate outstanding amount in respect of Finance Leases and Vendor Financing Agreements entered into after the Original Execution Date, does not exceed £330 million (or its equivalent in another currency other currencies) and further provided that in the case of any Financial Indebtedness constituted by an overdraft facility which operates on a gross/net basis, only the net amount of such facility shall count towards such aggregate amount;
(n) Financial Indebtedness of any Asset Securitisation Subsidiary incurred solely to finance any asset securitisation programme or currenciesprogrammes or one or more receivables factoring transactions otherwise permitted by Clause 25.6(j) (Disposals);
(o) Financial Indebtedness arising under tax-related financings designated in good faith as such by prior written notice from the Company to the Facility Agent, provided that the aggregate principal amount of such Financial Indebtedness outstanding at any time does not exceed £500 million; and
(p) Financial Indebtedness of any Obligor, provided that the pro forma Leverage Ratio (after giving effect to the incurrence of any such Financial Indebtedness pursuant to this paragraph (p) and the use of proceeds thereof and giving pro forma effect to any movement of cash out of the Bank Group since such date pursuant to Clause 25.5 (Dividends, Distributions and Share Capital) and any Permitted Payments) on the Quarter Date prior to any such incurrence would not exceed a ratio equal to the product of:
(i) the Leverage Ratio set out in column X of the Ratio Table in Clause 23.2(c) (Ratios) for the Quarter Date following the date of any such incurrence; and
(ii) 0.9, and, provided further that such Financial Indebtedness is subject to the terms of the HYD Intercreditor Agreement and the Group Intercreditor Agreement, or a Supplemental HYD Intercreditor Agreement as applicable.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure procure that no other member of the Bank Group will) incur (shall), without the prior written consent of an Instructing Group incur, create or agree permit to incur) subsist or have outstanding any Financial Indebtedness.Indebtedness or enter into any agreement or arrangement whereby it is entitled to incur, create or permit to subsist any Financial Indebtedness other than in either case:
(a) Financial Indebtedness arising under or pursuant to the Finance Documents (including in respect of any outstanding Documentary Credit and arising in respect of any Alternative Baseball Financing) and under or pursuant to the Bridge Finance Documents;
(b) Paragraph Existing Financial Indebtedness provided that the Existing Credit Facilities shall be repaid in full immediately upon the making of the first Advance under this Agreement;
(ac) above does not apply toFinancial Indebtedness arising in respect of:
(i) Financial Indebtedness the Existing High Yield Notes and the subordinated unsecured guarantee given by the Company in respect thereof;
(ii) the New High Yield Notes and any subordinated unsecured guarantee granted by the Company in respect of such New High Yield Notes provided that the New High Yield Notes and such guarantee will be subject to the provisions of the HYD Intercreditor Agreement and will be in substantially the form (mutatis mutandis) as the subordinated unsecured guarantee referred to in paragraph (bi) above;
(iii) the Additional High Yield Notes and any subordinated unsecured guarantee granted by the Company in respect of such Additional High Yield Notes, provided that the Additional High Yield Notes and such guarantee will be subject to the provisions of the HYD Intercreditor Agreement or will be subordinated pursuant to another intercreditor arrangement satisfactory to the Facility Agent or on terms substantially identical to the HYD Intercreditor Agreement mutatis mutandis (the “Supplemental Additional High Yield Notes Intercreditor Agreement”) and will be in substantially the form (mutatis mutandis) as the subordinated unsecured guarantee referred to in paragraph (i) above, provided, that no Default or Event of Default is outstanding or occurs as a result of the issuance of the Additional High Yield Notes, and provided further that the proceeds thereof (after deducting all reasonable fees, commissions, costs and expenses incurred by any member of the Group in connection with such raising) are applied as required by Clause 23.6 12.5(a)(ii) (Loans and guaranteesRepayment from Debt Proceeds);
(iiiv) any subordinated unsecured guarantees given by New Intermediate Holdco in respect of the Existing High Yield Notes, the New High Yield Notes and/or the Additional High Yield Notes, provided that such guarantees will be subject to the provisions of the HYD Intercreditor Agreement or a Supplemental Additional High Yield Notes Intercreditor Agreement and will be in substantially the form (mutatis mutandis) as the subordinated unsecured guarantee referred to in paragraph (i) above;
(v) any High Yield Refinancing and any guarantee given by any member of the Bank Group in respect thereof, provided that such guarantee is given on a subordinated unsecured basis and is subject to the terms of the HYD Intercreditor Agreement or given on subordination terms consistent with those contained in the HYD Intercreditor Agreement; and
(vi) any Senior Secured Notes and any guarantee in respect thereof given by any member of the Bank Group that is an Obligor.
(d) Financial Indebtedness of any member of the Bank Group falling within, and permitted by Clause 25.3 (Loans and Guarantees);
(e) Financial Indebtedness arising under the Finance Documentsany Hedging Agreements permitted under Clause 25.12 (Limitations on Hedging);
(iiif) any Financial Indebtedness arising in relation to either an Asset Passthrough or a Funding Passthrough;
(g) Financial Indebtedness of a any company which became or becomes a member of the Bank Group after the date of this AgreementOriginal Execution Date, where the such Financial Indebtedness is incurred arose prior to the date on which that such company became or becomes a member of the Group Bank Group; if:
(Ai) the such Financial Indebtedness was not incurred created in contemplation of the acquisition of that such company;
(Bii) the aggregate principal amount of all of the Financial Indebtedness assumed in reliance on this paragraph (g) either (1) does not exceed £85 million (or its equivalent in other currencies) outstanding at any time or (2) to the extent such Financial Indebtedness does exceed £85 million, an amount equal to such excess is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Grouprepaid promptly thereafter;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(viih) Financial Indebtedness arising from in respect of any guarantee given by the issuance Company or issuances TCN or any other member of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] the Bank Group in respect of the relevant borrower’s obligations under any Parent Debt (“Guaranteed Parent Debt”), provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(Ci) the proceeds of such Guaranteed Parent Debt are applied contributed into the Bank Group in accordance with Clause 9.5 24.15 (Capital Market Issue ProceedsContributions to the Bank Group) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs applied either (i) to (vi) above, the aggregate outstanding principal amount of which across towards the Group does not at Business or in a business whose primary operations are directly related to the Group Business or (ii) towards the refinancing of any time exceed [***] (or its equivalent in another currency or currencies).outstanding Indebtedness of the Bank Group; and
Appears in 1 contract
Financial Indebtedness. (a) No Obligor Subject to paragraph (b) below, the Parent shall (and procure that the Company shall ensure that no other member aggregate principal amount of outstanding Financial Indebtedness of the Group will(excluding any falling within paragraph (f) incur of the definition of Financial Indebtedness) does not exceed €75 million (or agree to incur) or have outstanding any Financial Indebtednessits equivalent).
(b) Paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred arising under or guaranteed pursuant to in paragraph (b) of Clause 23.6 (Loans and guarantees)a Facility or any Ancillary Facility;
(ii) Financial Indebtedness arising under or pursuant to the Finance DocumentsExisting Facility Agreement (provided that it will be repaid or prepaid or cash cover will be provided in respect thereof on the First Utilisation Date in accordance with the terms of this Agreement);
(iii) any Financial Indebtedness of unsecured overdraft, working capital and capital expenditure facilities to the extent that a company which becomes Documentary Credit has been issued, or a member guarantee has been issued under the Ancillary Facilities, in each case, in respect of the Group after the date principal amount of this Agreement, such facilities or where the Financial Indebtedness only BACS or other similar daylight banking accommodation is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Groupprovided;
(iv) any Financial Indebtedness permitted under Clause 23.19 agreed in writing by the Facility Agent (Hedgingacting on the instructions of the Majority Lenders);
(v) any Financial Indebtedness to arising under ancillary facilities provided under the extent Existing Facility Agreement which continue as at the First Utilisation Date and which are covered by a guarantee, bond Documentary Credit or letter of credit L/G issued under an this Agreement or a guarantee under any Ancillary Facility;Facility provided that the Obligors' Agent uses reasonable endeavours to procure that these arrangements are replaced with Ancillary Facilities or L/Gs as soon as reasonably practicable after the First Utilisation Date so long as the terms of such Ancillary Facilities, as the case may be, are competitive in light of market rates; and
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated up to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] €50 million (or its equivalent equivalent) in another currency aggregate in respect of the indemnity or currencies)reimbursement obligations of any member of the Group relating to letters of credit, guarantees, bonds or similar instruments issued by financial institutions to third parties in the ordinary course of trading of the relevant Group member, none of which shall be calculated into the €75 million (or equivalent) basket specified in paragraph (a) above.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor Except as permitted under paragraph (b) below and under Clause 22.28 (Treasury transactions), no Group Member shall (and the Company shall ensure that no other member of the Group will) incur (or agree to incur) or have outstanding remain liable under any Financial Indebtedness.
(b) Paragraph (a) above does not apply toto Financial Indebtedness which is:
(i) Financial Indebtedness referred to in paragraph under any of the Permitted Onshore Facilities (b) of Clause 23.6 (Loans and guaranteesother than any Future Onshore Bank Loan);
(ii) Financial Indebtedness arising under any Future Onshore Bank Loans, provided that the Finance Documentstotal outstanding principal amount under all Future Onshore Bank Loans and the refinancing of such Future Onshore Bank Loans (without double counting any Future Onshore Bank Loan that has been refinanced) shall not at any time exceed US$5,000,000 in aggregate unless the prior written consent of the Majority Lenders has been obtained (such consent not to be unreasonably withheld or delayed);
(iii) any Financial Subordinated Indebtedness incurred by the Borrower, provided that, if so requested by the Facility Agent (acting reasonably), the Borrower shall provide the Facility Agent with legal opinions in respect of a company which becomes a member of the Group after the date of this Agreement, where the Financial such Subordinated Indebtedness is incurred prior in form and substance satisfactory to the date on which that company becomes a member of the Group if:
it (A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Groupacting reasonably);
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging)the Convertible Notes;
(v) any Financial Indebtedness to under the extent covered by a guarantee, bond or letter of credit issued under an Ancillary FacilityLSSTD Loans;
(vi) Permitted Existing Financial IndebtednessIndebtedness under the Facilities;
(vii) incurred in the ordinary course of business by any Offshore Group Member if the aggregate amount of Financial Indebtedness arising from the issuance of all Offshore Group Members at any time is less than US$1,000,000 (or issuances of one its equivalent in any other currency or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceedscurrencies); and
(viii) any incurred with the prior written consent of the Majority Lenders. provided, in the case of paragraph (iv), such Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial is Subordinated Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies).
Appears in 1 contract
Samples: Facilities Agreement (3SBio Inc.)
Financial Indebtedness. (a) No Except as permitted under paragraph (b) below, no Obligor shall (and the Company shall ensure that no other member of the Group will) incur (or agree allow to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) above does shall not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising under the Finance Documents;
(ii) Financial Indebtedness outstanding on the date hereof that:
(A) is less than USD 2,000,000 (or its equivalent in any other currency or currencies) individually or USD 15,000,000 in the aggregate; or
(B) is listed in Schedule 17 (List of Existing Financial Indebtedness and Existing Security) and any refinancings, refundings, renewals or extensions thereof, provided that the amount of such Financial Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilised thereunder;
(iii) obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising under any Swap Agreement, provided that such obligations are (or were) entered into in the ordinary course of business and not for purposes of speculation;
(iv) Financial Indebtedness in respect of capital leases and purchase money obligations for fixed or capital assets and any refinancings, refundings, renewals or extensions thereof provided that the amount of such Financial Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilised thereunder provided that the only property subject to such capital leases and purchase money obligations is the property so acquired;
(v) Financial Indebtedness that may be deemed to exist pursuant to surety bonds, appeal bonds, supersedeas bonds or similar obligations incurred in the ordinary course of business;
(vi) so long as no Default has occurred and is continuing or would result therefrom at the time of incurrence, unsecured Financial Indebtedness of (x) the Company or any Guarantor and (y) any Borrower under and as defined in the Existing US Facility Agreement which is a Foreign Subsidiary, in the case of clause (y), in an aggregate principal amount not to exceed the greater of (i) USD 200,000,000 and (ii) 20% of Consolidated Tangible Assets (calculated as of the end of the immediately preceding Financial Quarter for which the Company’s financial statements were most recently delivered pursuant to paragraph (a) or (d) of Clause 19.1 (Financial statements) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to paragraph (a) or (d) of Clause 19.1 (Financial statements), the Original Financial Statements provided that, in each case, such Financial Indebtedness is not senior in right of payment to the payment of the Financial Indebtedness arising under this Agreement and the Finance Documents;
(vii) Financial Indebtedness of a company which Subsidiary of the Company to the Company or any of the Company’s other Subsidiaries or Financial Indebtedness of the Company to any Subsidiary of the Company in connection with loans or advances provided that each item of intercompany debt shall be unsecured and such Financial Indebtedness shall only be permitted under this sub-paragraph (b)(vii) to the extent it will be eliminated for the purposes of the consolidated financial statements of the Company in accordance with U.S. GAAP;
(viii) Financial Indebtedness arising as a result of the endorsement in the ordinary course of business of negotiable instruments in the course of collection;
(ix) Financial Indebtedness incurred in connection with the acquisition of all or a portion of Hill-Rom Company, Inc.’s interest in the real and personal property described in the Farm Agreement;
(x) guarantees by the Company of Financial Indebtedness of any Subsidiary of the Company and by any Subsidiary of the Company of Financial Indebtedness of the Company or any other Subsidiary of the Company provided that the Financial Indebtedness so guaranteed is permitted by this paragraph (b);
(xi) Financial Indebtedness owed to any person providing workers’ compensation, health, disability or other employee benefits or property, casualty, liability or other insurance to the Company or any Subsidiary of the Company, including pursuant to reimbursement or indemnification obligations to such person, in each case incurred in the ordinary course of business;
(xii) customary contingent indemnification obligations to purchasers in connection with any Disposal;
(xiii) Financial Indebtedness of any person that becomes a member Subsidiary of the Group Company after the date of this Agreement, where provided that such Financial Indebtedness exists at the time such person becomes a Subsidiary of the Company and is not created in contemplation thereof, and any refinancings, refundings, renewals or extensions thereof, provided that the amount of such Financial Indebtedness is incurred prior not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred reasonable premium or other reasonable amount paid and fees and expenses reasonably incurred, in contemplation of the acquisition of that companyconnection with such refinancing and by an amount equal to any existing commitments unutilised thereunder;
(Bxiv) the Financial Indebtedness is repaidin respect of netting services, prepaid or cancelled cash management obligations, overdraft protections and otherwise in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) connection with deposit accounts and Financial Indebtedness arising from the issuance honouring by a bank or issuances other financial institution of a cheque, draft or similar instrument inadvertently (except in the case of daylight overdrafts) being drawn against insufficient funds in the ordinary course of business;
(xv) Financial Indebtedness with respect to the deferred purchase price of property acquired and any refinancings, refundings, renewals or extensions thereof provided that the amount of such Financial Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to any existing commitments unutilised thereunder or by an amount equal to a reasonable premium or other reasonable amount paid and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilised thereunder;
(xvi) Financial Indebtedness incurred in respect of credit cards, credit card processing services, debit cards, stored value cards or purchase cards (including so-called “procurement cards” or “P-cards”) in each case, incurred in the ordinary course of business;
(xvii) contingent liabilities in respect of any indemnification obligations, adjustment of purchase price, non-compete, or similar obligations (other than guarantees of any Financial Indebtedness for borrowed money) of the Company or any Subsidiary of the Company incurred in connection with the consummation of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecuredacquisitions;
(Bxviii) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any other Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within covered under paragraphs (i) to (vixvii) above, the above in an aggregate outstanding principal amount of which across not to exceed the Group does not at any time exceed [***] greater of:
(A) USD 150,000,000 (or its equivalent in another any other currency or currencies); and
(B) 15 per cent. of Consolidated Tangible Assets (calculated as of the end of the immediately preceding Financial Quarter for which the Company’s financial statements were most recently delivered pursuant to Clause 19.1 (Financial statements), or if prior to the date of the delivery of the first financial statements to be delivered pursuant to Clause 19.1 (Financial statements), the Original Financial Statements) provided that for the avoidance of doubt, no Default or Event of Default shall be deemed to have occurred if, at the time of creation, incurrence, assumption or initial existence thereof, such Financial Indebtedness was permitted to be incurred pursuant to this sub-paragraph (xviii) notwithstanding a decrease after such time in the basket amount permitted under this sub-paragraph (xviii) as a result of a decrease in Consolidated Tangible Assets.
Appears in 1 contract
Samples: Syndicated L/G Facility Agreement (Hillenbrand, Inc.)
Financial Indebtedness. (a) No Obligor shall (and the The Company shall ensure not, and shall procure that no other member of the Group (other than Xxxxxxxxx) will) , incur (or agree to incur) or have outstanding owing by it any Financial Indebtedness.
(b) Paragraph (a) above does will not apply to:
(i) Financial Indebtedness referred owing by one Obligor to in paragraph (b) of Clause 23.6 (Loans and guarantees)another Obligor;
(ii) Financial Indebtedness arising under the Finance Documentsowing by a non-Obligor to another non-Obligor;
(iii) any Financial Indebtedness of owing by an Obligor to a company non-Obligor, which becomes a member of the Group after is outstanding on the date of this AgreementAgreement and disclosed to the Agent in advance of the Effective Date, where the and other Financial Indebtedness owing by an Obligor to a non-Obligor, provided no more than euro 2,000,000 in aggregate is incurred prior outstanding at any time in addition to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Groupcurrently outstanding;
(iv) any Financial Indebtedness owing by a non-Obligor to an Obligor, where the proceeds of the intra-Group loans creating that Financial Indebtedness are on-lent, within 24 hours, to an Obligor, to facilitate tax beneficial structuring arrangements within the Group (Financial Indebtedness arising from that on-lending also being permitted under Clause 23.19 (Hedgingthis provision);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied as described in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtednessthat term in Clause 1.1 (Definitions), so long as entered into for non-speculative hedging purposes in the ordinary course of the relevant company’s business;
(vi) the CIT Facility to the extent available to WC Designs;
(vii) the HYB Issue, so long as the interest rate is no greater than 11 per cent, per annum, provided the trustee of the HYB Issue accedes to the Intercreditor Agreement at the date of the HYB Issue and provided that the terms of the HYB Issue (as set out in the HYB Indenture) are substantially in the form of the draft initialised for identification by Xxxxxxxx Chance and Xxxxx & Overy;
(viii) any Financial Indebtedness referred existing at the date of this Agreement (including pursuant to in paragraphs (hthe U.S. Private Placement and any make-whole notes issued under it) or (j) but excluding the CIT Facility to the extent made available to All-Clad Metalcrafters, LLC and Waterford Wedgwood USA Inc., and that part of the definition of facility available to Waterford Wedgwood GmbH from Hypovereinsbank which facilities must be cancelled within three Business Days after the HYB Funding Date;
(ix) the bilateral lending facility currently made available by Mizuho in Japan, provided it is cancelled and repaid in full within three Business Days after the HYB Funding Date;
(x) Financial Indebtedness shall only be counted once with respect to a customs guarantee issued for this purpose) not falling within paragraphs (i) to (vi) abovea member of the Group by Mizuho in Japan, provided the aggregate outstanding principal amount of which across the liability of the Group does with respect to that guarantee is not increased above its current liability (being no more than Yen 152,000,000); and
(xi) any other Financial Indebtedness outstanding at any time which in aggregate does not exceed [***] euro 500,000 (or its equivalent in another currency or currenciesany other currency).
(c) The Company shall procure that Xxxxxxxxx and its subsidiaries shall not incur or have outstanding any Financial Indebtedness other than:
(i) loans from Waterford Wedgwood GmbH and Xxxxxx Limited to Xxxxxxxxx in existence at the date of this Agreement;
(ii) any other Financial Indebtedness (including the Xxxxxxxxx Facilities) which in aggregate does not exceed euro 20,000,000 reducing to euro 13,400,000 (or its equivalent in any other currency) no later than three Business Days after the HYB Funding Date;
(iii) the Xxxxxxxxx Factoring Facility; or
(iv) under the sale and leaseback arrangement proposed with respect to Spiegel House, Selb, Germany.
(d) The Company shall not, and shall procure that no member of the Group shall, grant any guarantee or indemnity or similar assurance against financial loss (guarantees) without the prior written consent of the Majority Banks. This paragraph (d) shall not prevent:
(i) the granting of guarantees in respect of which the actual and contingent liability of the members of the Group is not in aggregate in excess of euro 500,000 at any time;
(ii) the granting of guarantees in the ordinary course of business, which are not in respect of Financial Indebtedness and, in aggregate for all such guarantees the actual and contingent liability of the members of the Group is not in excess of euro 1,000,000 at any time;
(iii) the subsistence of guarantees in existence as at the date of the Second A&R Agreement;
(iv) the granting of guarantees in accordance with the Finance Documents; and
(v) the granting of any guarantee under the HYB Issue (subordinated on the terms of the Intercreditor Agreement) or the U.S. Private Placement, provided an equivalent guarantee is granted in favour of the Finance Parties in respect of the Obligors’ obligations under the Finance Documents.
(e) The Company shall not, and shall procure that no member of the Group will repay or prepay any Financial Indebtedness permitted by this Agreement, prior to its scheduled maturity.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Waterford Wedgwood PLC)
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that Except as provided below, no other member of the Group will) may incur (or agree to incur) or have outstanding any Financial IndebtednessIndebtedness or Intra-Group Debt.
(b) Paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)incurred under the Finance Documents;
(ii) any unsecured Financial Indebtedness arising owed by the Company, KAL or any other wholly beneficially owned Subsidiary of KAL to KAL or any of its wholly beneficially owned Subsidiaries which is:
(A) outstanding as at the date of this Agreement, the details of which are specified in Schedule 10 (Existing Intra-group Debt); or
(B) subordinated pursuant to a Subordination Agreement to the indebtedness owing to the Finance Parties under the Finance Documents;
(iii) any Financial Indebtedness guarantee, indemnity or similar assurance against liabilities of a company which becomes a member an Affiliate of KAL in the ordinary course of business of the Group after the date of this Agreement, where person incurring the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the GroupIndebtedness;
(iv) any Financial Indebtedness permitted incurred by the Company under Clause 23.19 (Hedging)the guarantee given by it in support of the HK$41,700,000 facility obtained by National Garments Manufacturing Pte Limited pursuant to a facility agreement dated 29 July 2004, so long as the maximum principal amount guaranteed by the Company does not at any time exceed HK$20,850,000;
(v) any subordinated Financial Indebtedness to the extent covered incurred by a guarantee, bond Relevant Obligor to a member of the Kellwood Group for the purpose of funding any acquisition pursuant to Subclause 19.10(b)(i) or letter of credit issued under an Ancillary Facility19.10(b)(ii) (Acquisitions);
(vi) Permitted Existing any Financial IndebtednessIndebtedness owed to any financial institution:
(A) which is fully subordinated to the indebtedness owing to the Finance Parties under the Finance Documents pursuant to a Subordination Agreement, on terms and conditions satisfactory to the Facility Agent; and
(B) where interest and fees payable on such Financial Indebtedness are charged at a rate not exceeding the normal prevailing market rate;
(vii) Financial Indebtedness arising any derivative transaction protecting against or benefiting from fluctuations in any rate or price entered into in the issuance or issuances ordinary course of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecuredbusiness;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness arising under any unsecured uncommitted lines of credit with a single financial institution, pursuant to which that financial institution is not committed or obliged at any time to extend any credit; or
(other than falling within paragraph (gix) of the definition of Financial Indebtedness) Indebtedness which in aggregate does not exceed US$12,500,000 or its equivalent at any time, provided that any Financial Indebtedness referred no agreement (in writing or otherwise) giving rise to in paragraphs (h) or (j) of the definition of such Financial Indebtedness shall only be counted once (A) provide for any terms, representations and warranties, covenants and conditions that are more restrictive to the borrower or more favourable to the lenders, as the case may be, than those under this purposeAgreement or (B) not falling within paragraphs contain any provision which may result in a breach of Clause 19.5 (i) Negative pledge), including any agreement to (vi) abovecreate, bring into effect or perfect any Security Interest as security for the aggregate outstanding principal amount payment of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies)such Financial Indebtedness.
Appears in 1 contract
Samples: Term and Revolving Credit Facility Agreement (Kellwood Co)
Financial Indebtedness. (a) No Obligor Borrower shall (and the Company shall ensure that no other member of the Group will) incur (or agree allow to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply toto Financial Indebtedness:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)arising under any Finance Document;
(ii) which is Existing Financial Indebtedness arising under the Finance DocumentsIndebtedness;
(iii) which is Target Financial Indebtedness;
(iv) the proceeds of which are applied in accordance with Clause 7.3 (Mandatory prepayment – equity or debt issue);
(v) permitted under Clause 20.6 (Loans or credit) or Clause 20.7 (No guarantees or indemnities);
(vi) arising under any Financial Indebtedness cash pooling, netting or set-off arrangement entered into by any member of a company which becomes the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances of members of the Group;
(vii) arising under any hedging or derivative transaction not prohibited by the terms of this Agreement (to be limited to (i) hedging of risks incurred in the ordinary course of its property investment business and (ii) non-speculative interest rate and currency hedging;
(viii) of any entity acquired by a member of the Group after the date of this Agreement, where the Financial Indebtedness Signing Date which is incurred prior to outstanding under arrangements in existence on the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition but not incurred or the principal amount increased (other than by the capitalisation of interest) or its maturity date extended in contemplation of, or since, that company;acquisition and outstanding only for a period of three months following the date of the acquisition; or
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(ivix) any Financial Indebtedness not permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vivii) above, the aggregate outstanding principal amount of which across (when aggregated with the principal amount of any other Financial Indebtedness allowed to remain outstanding by any member of the Group which is permitted under this paragraph (b)) does not at any time exceed [***] GBP 20,000,000 (or its equivalent in another currency or currencies)) at any time.
Appears in 1 contract
Samples: Facilities Agreement
Financial Indebtedness. (a) No Obligor shall Except as permitted under paragraph (and b) below, the Company Parent shall ensure that no other member of the Group will) which is not a Credit Party will incur (or agree allow to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply toto Financial Indebtedness which is:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)incurred under the Credit Documents;
(ii) any Financial Indebtedness arising under of a member of the Finance DocumentsGroup existing on the Second Amendment Effective Date (as amended, restated, replaced or refinanced from time to time but not increased other than as a result of the capitalization of interest);
(iii) any Financial Indebtedness (as amended, restated, replaced or refinanced from time to time) of a company which becomes any person acquired by a member of the Group on or after the Second Amendment Effective Date (including pursuant to the Transaction) which is incurred under arrangements in existence at the date of this Agreementacquisition, where the Financial Indebtedness is but not incurred prior to the date on which that company becomes or increased (other than as a member result of the Group if:
(Acapitalization of interest) the Financial Indebtedness was not incurred or its maturity date extended in contemplation of, or since, that acquisition (other than by way of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid a replacement or cancelled in full within [***] of that company becoming a member of the Grouprefinancing);
(iv) any Financial Indebtedness permitted arising under Clause 23.19 any hedging or derivative transaction entered into in the ordinary course of business and not for speculative purposes;
(Hedgingv) any Financial Indebtedness arising under any cash management agreement (including any short term exposure overdrafts and related liabilities arising from treasury, depositary, cash management services, cash pooling arrangements or in connection with any automated clearinghouse transfers of funds) entered into by a member of the Group in the ordinary course of its day to day business or banking arrangements;
(vi) any Financial Indebtedness arising as a result of or in connection with:
(A) any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of share capital (or any class of share capital);
(vB) the repayment or distribution of any dividend or share premium reserve; or
(C) the redemption, repurchase, defeasance, retirement or repayment any of share capital;
(vii) any Financial Indebtedness arising under a Permitted Guarantee, including any guarantee by a Credit Party of Financial Indebtedness that is otherwise permitted to exist or be incurred pursuant to the terms of the Credit Documents;
(viii) any Financial Indebtedness arising by operation of law as a result of the existence of a fiscal unity (fiscale eenheid) for Dutch tax purposes, or analogous arrangement in any other jurisdiction, in each case, of which any Credit Party is or has been a member;
(ix) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit or guarantee issued under an Ancillary FacilityFacility (as defined in the Facilities Agreement as in effect on the Second Amendment Effective Date);
(vix) Permitted Existing any Financial IndebtednessIndebtedness consisting of letters of credit and bank guarantees to support rental obligations, performance bonds, completion guarantees, surety bonds, custom bonds or similar obligations;
(viixi) any Financial Indebtedness incurred or outstanding pursuant to or in connection with a Permitted Receivables Securitization;
(xii) any Financial Indebtedness incurred under any lease (including any finance or capital lease, concession, license, operating lease or other arrangement (or guarantee thereof));
(xiii) any Financial Indebtedness arising from the issuance as a result of any judgment or issuances order of one a court, arbitral body or more convertible agency pursuant to or regular bonds in connection with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecuredlitigation, arbitration or administrative proceedings;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viiixiv) any Financial Indebtedness (including obligations in respect of letters of credit, bank guarantees and similar instruments) providing workers’ compensation, social security, health, disability or other than falling within paragraph employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such person, in each case incurred in the ordinary course of business;
(gxv) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to arising in the ordinary course of its day-to-day business as a result of participation in any customer-sponsored supply chain financing program;
(xvi) not permitted by the preceding paragraphs and the outstanding principal amount of which (h) or (j) when aggregated with the principal amount of any other indebtedness of any member of the definition of Financial Indebtedness shall only be counted once for this purpose) Group which is not falling within a Credit Party other than any indebtedness permitted under paragraphs (i) to (vixv) above, the aggregate outstanding principal amount of which across the Group ) does not at any time exceed [***] $3,000,000,000 (or its equivalent in another currency or currencies)) or, if higher, 7.5% of the Consolidated Total Assets in aggregate at any time.
Appears in 1 contract
Financial Indebtedness. (a) No TCN Group Obligor shall (and the Company TCN shall ensure procure that no other member of the TCN Group willshall) incur (incur, create or agree permit to incur) subsist or have outstanding any Financial Indebtedness.Indebtedness or enter into any agreement or arrangement whereby it is entitled to incur, create or permit to subsist any Financial Indebtedness other than in either case:
(a) Financial Indebtedness arising under or pursuant to the Finance Documents or the Senior Finance Documents;
(b) Paragraph Existing Financial Indebtedness, provided that all Existing Financial Indebtedness described in Section A of Part 3 of Schedule 10 (aExisting Financial Indebtedness) above shall be repaid immediately upon the making of the first Advance under this Agreement;
(c) in relation to an Integrated Merger Event:
(i) any Target Group Financial Indebtedness existing as at the effective date of the Integrated Merger Event;
(ii) any Target Group Refinancing Indebtedness existing as at or immediately following the effective date of the Integrated Merger Event; and
(iii) any Post Merger Target Group Refinancing;
(d) Financial Indebtedness of any member of the TCN Group falling within, and permitted by Clause 19.3 (Loans and Guarantees);
(e) Financial Indebtedness arising under any Hedging Agreements permitted under Clause 19.12 (Limitations on Hedging);
(f) Financial Indebtedness arising in respect of any guarantee given by TCN or any other member of the TCN Group in respect of the relevant borrower’s obligations under any Second Lien Refinancing or any other Telewest Global Debt, provided that, except at the option of TCN in the case of a Second Lien Refinancing, any such guarantee is given on a subordinated unsecured basis and is subject to the terms of a TGD Intercreditor Agreement, and provided further that if and to the extent required by Clause 7.5 (Repayment from Debt Proceeds), the Net Proceeds of such Telewest Global Debt are applied in the prepayment of the Outstandings;
(g) Financial Indebtedness (i) arising under Finance Leases or (ii) provided or arranged by a supplier (or its Affiliates) of assets (including equipment) and/or related services to the TCN Group (the “Vendor Financing Arrangements”), to the extent that such Finance Leases and/or Vendor Financing Arrangements (x) comprise Finance Leases and/or Vendor Financing Arrangements which were outstanding on the Closing Date, details of which are set out in Schedule 12 (Vendor Financing Arrangements) or any refinancing or rollover thereof, or (y) comprise Finance Leases and/or Vendor Financing Arrangements entered into after the Closing Date, in the case of clause (x) and (y) in an aggregate principal amount which, together with the aggregate principal amount of all outstanding Financial Indebtedness incurred under paragraph (m) below, does not apply to:at any time exceed £125,000,000 plus the principal amount of such Finance Leases and Vendor Financing Arrangements outstanding on the Closing Date; provided in each case that the relevant lessor or provider of Vendor Financing Arrangements does not have the benefit of any Encumbrance other than over the assets the subject of such Vendor Financing Arrangements and/or Finance Leases;
(h) Financial Indebtedness relating to deferral of PAYE taxes with the agreement of the Inland Revenue by any member of the TCN Group;
(i) Financial Indebtedness referred arising in respect of Existing Performance Bonds or any performance bond, guarantee, standby letter of credit or similar facility entered into by any member of the TCN Group to in paragraph (b) the extent that cash is deposited as security for the obligations of Clause 23.6 (Loans and guarantees)such member of the TCN Group thereunder;
(iij) Financial Indebtedness arising under other than in connection with the Finance Documents;
(iii) any Integrated Merger Event, Financial Indebtedness of a any company which became or becomes a member of the TCN Group after the date of this Agreement, where the such Financial Indebtedness is incurred arose prior to the date on which that such company became or becomes a member of the Group TCN Group; if:
(Ai) the such Financial Indebtedness was not incurred created in contemplation of the acquisition of that such company;; and
(ii) the aggregate principal amount of all Financial Indebtedness falling within this paragraph (j) either (A) does not exceed £12,000,000 (or its equivalent in other currencies) outstanding at any time or (B) to the extent such Financial Indebtedness does exceed £12,000,000, an amount equal to such excess is repaid, prepaid or cancelled in full within [***] of that repaid immediately upon such company becoming a member of the TCN Group;
(ivk) any Financial Indebtedness permitted under Clause 23.19 (Hedging)which constitutes Subordinated Funding provided that each member of the TCN Group that is a debtor in respect of Subordinated Funding shall procure that the relevant creditor of such Subordinated Funding, to the extent not already a party at the relevant time, accedes to the Principal Intercreditor Deed or any applicable TGD Intercreditor Agreement, as appropriate and in such capacity, upon the granting of such Subordinated Funding;
(vl) the TCN Notes, any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;Senior Debt Refinancing and any Second Lien Refinancing; or
(vi) Permitted Existing Financial Indebtedness;
(viim) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (ia) to (vil) above, of any member of the TCN Group provided that the aggregate amount of such Financial Indebtedness outstanding at any time, when taken together with the aggregate outstanding principal amount in respect of which across Finance Leases and Vendor Financing Arrangements in excess of the Group aggregate amount thereof outstanding as at the Closing Date, does not at any time exceed [***] £125,000,000 (or its equivalent in another currency or other currencies)) and the aggregate amount of any Financial Indebtedness, the proceeds of which are not required to be applied in prepayment of outstanding amounts pursuant to paragraph (a) of Clause 7.5 (Repayment from Debt Proceeds) by virtue of the exception in paragraph (b)(viii) of such Clause; and further provided that in the case of any Financial Indebtedness constituted by an overdraft facility which operates on a gross/net basis, only the net amount of such facility shall count towards such aggregate amount.
Appears in 1 contract
Samples: Second Lien Facility Agreement (Telewest Global Inc)
Financial Indebtedness. (a) No Obligor shall (and the Company Borrower shall ensure that no other member of the Group will) incur (or agree permit to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred incurred pursuant to in paragraph (b) of Clause 23.6 (Loans and guarantees)any Finance Documents;
(ii) any Financial Indebtedness arising under owed to another member of the Finance DocumentsGroup (including as a direct result of a Permitted Reorganisation);
(iii) any Financial the Existing Indebtedness of a company which becomes a member except to the extent the principal amount of the Group after the date of this Agreement, where the Financial Existing Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Groupexceeds USD300,000,000;
(iv) any Financial Indebtedness permitted that is subordinated to the claims of the Secured Parties under the Finance Documents pursuant to a Subordination Deed in accordance with Clause 23.19 21.14 (HedgingSubordination of shareholder loans) or otherwise on terms that are acceptable to the Agent (acting on the instructions of the Majority Lenders (acting reasonably));
(v) any Financial Indebtedness to raised by the extent covered issue of redeemable shares which are held by a guarantee, bond or letter another member of credit issued under an Ancillary Facilitythe Group;
(vi) Permitted Existing any Financial Indebtedness described in paragraph (g) of the definition of "Financial Indebtedness" incurred in the ordinary course of business and for non-speculative purposes only and any guarantees granted in respect of such Financial Indebtedness;
(vii) Financial Indebtedness arising from insurance contracts in the issuance form of financed insurance premiums in each case, in the ordinary course of business and other regular or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds)customary activities; and
(viii) any Financial Indebtedness (other than falling within paragraph (g) not permitted by the preceding paragraphs of this Clause and the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] USD1,000,000 (or its equivalent in another any other currency or currencies)) in aggregate (for any and all such Financial Indebtedness of any or all members of the Group) at any time.
Appears in 1 contract
Samples: Facility Agreement (PCGI Intermediate Holdings LTD)
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that no other member None of the Group will) Obligors shall, without the Agent’s prior written consent, incur (or agree allow to incur) or have remain outstanding any Financial IndebtednessIndebtedness the amount of which exceeds, when aggregated with (i) the amount of all Financial Indebtedness then owed by the Obligors, and (ii) the amount of all actual and contingent liabilities of Obligors under guarantees contemplated in paragraph (a) of Clause 18.7 (No guarantees or indemnities) (but without double counting), RUB 2,500,000,000 (or its equivalent).
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising under the Finance Documents;
(iiiii) any Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the constitutes Existing Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that companyIndebtedness;
(Biii) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Groupowed by an Obligor to another Obligor;
(iv) any Financial Indebtedness permitted owed by an Obligor under Clause 23.19 any operating arrangement (Hedgingincluding any lease of any warehouse, any warehouse equipment, vehicles or postal locker);
(v) any Financial Indebtedness under any trade credit extended to an Obligor by any of its suppliers on normal commercial terms and in the extent covered by a guarantee, bond or letter ordinary course of credit issued under an Ancillary Facilitythat Obligor’s trading activities;
(vi) Permitted Existing Financial Indebtedness;Sponsor Liabilities of an Obligor, provided that the aggregate amount of Sponsor Liabilities incurred by the Obligors does not, at any time exceed RUB 1,500,000,000 (or its equivalent) and each Special Purpose Company and each member of the Group in respect of which any such Sponsor Liabilities were incurred shall have executed for the benefit of the Finance Parties a guarantee or suretyship on terms substantially similar to those set out in Clause 15 (Guarantee and Indemnity) or in a Russian Suretyship (as the case may be); or
(vii) any Fintech Transaction provided that the Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated owed to the Facilities; and
(C) the proceeds are applied relevant Obligor in accordance respect of such Fintech Transaction does not, at any time, and when aggregated with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (owed at such time to all Obligors in respect of each other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred Fintech Transaction to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) abovewhich they are party, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies)RUB 100,000,000.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that Except as provided below, no other member of the Group will(other than the Company) incur (or agree to incur) or may have outstanding or incur any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)incurred under the Finance Documents, the Mittal Bridge Facility or the Mittal Refinancing Facility;
(ii) any Financial Indebtedness arising under of any Subsidiary of the Finance DocumentsCompany or of the Target or its Subsidiaries outstanding as at the date of this Agreement, but only to the extent that:
(A) the principal amount of any such Financial Indebtedness is not increased;
(B) the maturity of any such Financial Indebtedness is not extended; and
(C) such Financial Indebtedness is not refinanced, in each case after the date of this Agreement;
(iii) any Financial Indebtedness of a company which becomes any person acquired by a member of the Group after which is incurred under arrangements in existence at the date of this Agreementacquisition, where but only for a period of six months from the date of acquisition and only to the extent the principal amount of the Financial Indebtedness is has not been incurred prior to or increased in contemplation of, or since, the date on which that company becomes a acquisition;
(iv) Financial Indebtedness owed by one member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that companyto another;
(Bv) the Financial Indebtedness is repaidunder any forward or spot delivery foreign exchange contracts or other derivative instruments relating to currency or interest rate hedging, prepaid in each case entered into for the sole purpose of hedging in the ordinary course of trading;
(vi) any Financial Indebtedness of the Target or cancelled its Subsidiaries on the date the Target forms part of the Group, incurred in full within [***] connection with the refinancing of that company becoming any Financial Indebtedness of Target or any of its Subsidiaries outstanding on the date Target becomes a member of the Group;
(ivvii) any Financial Indebtedness permitted outstanding under Clause 23.19 (Hedging)any notes or bonds issued by the Target Group of which the Mandated Lead Arrangers are aware on the date of this Agreement;
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Project Finance Indebtedness; or
(ix) Financial Indebtedness secured by a Security Interest permitted under Clause 20.5(b)(xvi) (Negative Pledge) and other than falling within paragraph (g) of the definition of Financial Indebtedness) , provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across all Financial Indebtedness covered by this sub paragraph does not exceed 15 per cent. of the book value of the consolidated assets of the Group does not at any time exceed [***] (or its equivalent in another currency or currencies).at any time. Table of Contents
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall Except as provided in paragraph (and the Company shall ensure that b) below, no other member of the Group will) may incur (or agree permit to incur) or have be outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness referred incurred under the Finance Documents or any Additional Facility or any Shareholder Loans owing by KDG to in paragraph Luxco (b) or any other Holding Company of Clause 23.6 (Loans and guaranteesKDG);
(ii) any Financial Indebtedness arising of any person acquired by a member of the Group which is incurred under arrangements in existence at the Finance Documentsdate of acquisition, but not incurred or increased or its maturity date extended in contemplation of, or since, that acquisition, and outstanding only for a period of three months following the date of acquisition;
(iii) any Financial Indebtedness under any vendor financing programmes, sale and lease back arrangements, finance or capital leases of a company which becomes a member vehicles, plant, equipment or computers, provided that the aggregate amount of such Financial Indebtedness by members of the Group after the date of this Agreement, where the (when taken together with any other outstanding Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
permitted under sub-paragraph (Ab)(x) the Financial Indebtedness was below) does not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Groupexceed €80,000,000 at any time;
(iv) any Financial Indebtedness Treasury Transaction permitted under Clause 23.19 19.14 (HedgingTreasury Transactions);
(v) any Financial Indebtedness permitted under Clauses 19.13 (Third party guarantees) or 19.15 (Loans out);
(vi) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit or guarantee issued under an Ancillary Facility;
(vivii) Permitted Existing any Financial Indebtedness falling within paragraph (j) of the definition thereof (except to the extent the underlying obligation in respect of which an instrument contemplated by paragraph (j) has been issued itself constitutes Financial Indebtedness under any other paragraph of the definition of Financial Indebtedness);
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness expressly permitted in writing by the Majority Lenders;
(other than falling within paragraph (gix) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred owed by KDG or an Issuer incurred under the Indenture Documents or as Permitted KDG Debt (provided that the aggregate amount permitted to in paragraphs be incurred under this paragraph (hix) or (j) shall not exceed the indebtedness permitted to be incurred under the indenture governing the issuance of the definition €250,000,000 10.750 per cent. senior notes and the €610,000,000 10.625 per cent. senior notes (each due 2014 and issued by KDG) under the terms of that indenture as at the date of this Agreement);
(x) until the first Utilisation Date, any Financial Indebtedness shall only be counted once for under the Existing Facility; and
(xi) any Financial Indebtedness of any member or members of the Group not otherwise permitted by this purposeparagraph (b) not falling within paragraphs which in aggregate (i) to (vi) above, when taken together with the aggregate outstanding principal amount of which across the Group any other outstanding Financial Indebtedness permitted under sub-paragraph (b)(iii)) does not exceed €80,000,000 at any time exceed [***] (or its equivalent in another currency or currencies)time.
Appears in 1 contract
Samples: Senior Credit Agreement (Kabel Deutschland Vertrieb Und Service GmbH & Co. KG)
Financial Indebtedness. (a) 28.8.1 No Obligor shall (and the Company shall ensure that no other member of the Group will) incur (or agree allow to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) 28.8.2 Sub-clause 28.8.1 above does not apply to:
(ia) any Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising incurred under the Finance Documents;
(iiib) any Existing Financial Indebtedness and any refinancing thereof (to the extent the aggregate amount outstanding is not increased as a result of a company which becomes a or pursuant to the refinancing);
(c) trade credit in the ordinary course of trading;
(d) Financial Indebtedness to the extent owed by one member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a another member of the Group;
(ive) any Financial Indebtedness permitted under not otherwise described in this sub-clause 28.8.2 to the extent it is (i) required to be applied in prepayment and cancellation of the Facilities pursuant to sub-clause 12.2.1 to 12.2.4 inclusive of Clause 23.19 12.2 (HedgingMandatory prepayment and Cancellation out of certain proceeds) or (ii) is applied in voluntary prepayment and cancellation of the Facilities pursuant to Clause 11 (Illegality, Voluntary Prepayment and Cancellation);
(vf) a derivative transaction entered into in the ordinary course of treasury operations and not for speculative purposes;
(g) Financial Indebtedness incurred with the consent of the Majority Lenders;
(h) any Financial Indebtedness of New River or its Subsidiaries existing at the time of the Acquisition (and any refinancing thereof (to the extent covered by that the aggregate amount outstanding is not increased as a guaranteeresult of or pursuant to the refinancing)) if that Financial Indebtedness was not created in contemplation of the Acquisition and (other than in relation to the New River Convertible Bond), bond or letter if that Financial Indebtedness is repaid within six months of credit issued under an Ancillary Facilitythe Acquisition;
(vii) any Permitted Existing Financial IndebtednessSecuritisation;
(viij) Financial Indebtedness arising from unsecured loan notes issued by any member of the issuance Group (including unsecured loan notes guaranteed by the Company and issued by another member of the Group) pursuant to a loan note alternative to an offer which complies with all of the following conditions: (i) the offer is an offer made by or issuances on behalf of one a member of the Group to acquire (inter alia) all the ordinary shares in a public company which are not owned by the offeror or more convertible by any member of the Group, or regular bonds a scheme of arrangement proposed by such a public company for a corresponding purpose; (ii) the offer is for cash consideration or includes a cash alternative; and (iii) the offer is subject to and complies with the UK Takeover Code or any law or regulation which replaces itprovided that such loan notes will only fall within this sub-paragraph (j) to the extent that the aggregate principal amount outstanding of such loan notes at any time does not exceed an amount equal to the aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any of the Available Commitments of all the Revolving Facility Lenders under the Revolving Facility at such bond issued is unsecuredtime;
(Bk) any until such bond ranks pari passu with, time as (i) all amounts outstanding under or subordinated in respect of Facility A and Facility B have been repaid in full and (ii) to the Facilities; and
(C) extent that the proceeds are applied Total Revolving Facility Commitments have been reduced to US$500,000,000 in accordance with Clause 9.5 subclause 12.2 (Capital Market Issue ProceedsMandatory prepayment and cancellation out of certain proceeds) and Clause 9.8 other Financial Indebtedness, the principal amount of which (Application when aggregated with the principal amount of Capital Market Issue Proceedsany other Financial Indebtedness incurred by any member of the Group other than any permitted under paragraphs (a) to (j) above) does not, at any time, exceed US$200,000,000 (or its equivalent in another currency or currencies); and
(viiil) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs following (i) the repayment in full of all amounts outstanding under Facility A and Facility B and (ii) the reduction of the Total Revolving Facility Commitments to US$500,000,000 (viin accordance with subclause 12.2 (Mandatory prepayment and cancellation out of certain proceeds), subclause 11.2 (Voluntary Cancellation) aboveor subclause 11.3 (Voluntary Prepayment of Loans)) other Financial Indebtedness, the aggregate outstanding principal amount of which across (when aggregated with the principal amount of any other Financial Indebtedness incurred by any member of the Group other than any permitted under paragraphs (a) to (j) above) does not not, at any time time, exceed [***] US$500,000,000 (or its equivalent in another currency or currencies).
Appears in 1 contract
Samples: Facilities Agreement (Shire PLC)
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that no other member of the Group will) incur (or agree allow to incur) or have remain outstanding any Financial IndebtednessIndebtedness other than in the following circumstances:
(i) as permitted under paragraph (b) below;
(ii) with the prior written consent of the Facility Agent acting on the instructions of the Majority Lenders, which the Lenders shall confirm or decline within fifteen (15) Business Days of receipt of a request from the Company; or
(iii) if such Financial Indebtedness is incurred pursuant to, and remains in accordance with, this Agreement.
(b) Paragraph (a) above does not apply toto any Financial Indebtedness:
(i) up to a total maximum aggregate Financial Indebtedness of the Group of $25,000,000 in respect of Financial Indebtedness which is not Bridge Financing, as evidenced by the latest audited financial statements of the Parent;
(ii) up to a total maximum aggregate Financial Indebtedness of the Group of $50,000,000 in respect of Bridge Financing, as evidenced by the latest audited financial statements of the Parent;
(iii) incurred through a bond issuance by any member of the Group which is unsecured and has a tenor longer than the Facility A Termination Date;
(iv) arising under a foreign exchange transaction for spot or forward delivery entered into in connection with protection against fluctuation in currency rates where that foreign exchange exposure arises in the ordinary course of trade or in respect of Utilisations made in euro, but not a foreign exchange transaction for investment or speculative purposes;
(v) arising under a facility for issuing non-cash instruments with an overall aggregate limit of EUR3.5m, granted by HSH Nordbank AG in favour of OBTG; or
(vi) identified in Schedule 15 (Permitted Indebtedness).
(c) To the extent the Facility Agent acting on the instructions of the Majority Lenders consents in writing to the incurring of any Financial Indebtedness pursuant to this clause 24.18 (Financial Indebtedness), then subject to any terms and conditions attached to such consent, such Financial Indebtedness shall (unless the relevant consent expressly states to the contrary) not be considered to form part of the$25,000,000 and $50,000,000 baskets referred to in paragraph (b) of Clause 23.6 above (Loans and guarantees);
(ii) Financial Indebtedness arising under the Finance Documents;
(iii) any Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior it shall be considered to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness have been consented to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currenciesabsolutely).
Appears in 1 contract
Samples: Loan Agreement (Aegean Marine Petroleum Network Inc.)
Financial Indebtedness. (a) No Except as permitted under paragraph (b) below no Obligor shall (will, and the Company shall ensure each Obligor will procure that no other member none of the Group its Subsidiaries will) , incur (or agree to incur) incur or have allow to remain outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness referred arising under or pursuant to in paragraph (b) of Clause 23.6 (Loans and guarantees)the Transaction Documents;
(ii) Financial Indebtedness arising under the Finance Documentspermitted by Clauses 24.15 (Loans or credit), 24.20 (Factoring), 24.21 (No Guarantees or indemnities), 24.22 (Hedging Transactions) and 24.26 (Leasing Arrangements);
(iii) any Financial Indebtedness to the extent that a Bank Guarantee has been issued, or a guarantee has been issued under an Ancillary Facility, in each case, in respect of a company the principal amount of such facilities or where only BACS or other similar daylight banking accommodation is provided;
(iv) any Financial Indebtedness falling within paragraphs (e) and (f) of the definition of Financial Indebtedness;
(v) Financial Indebtedness of any member of the Target Group which is outstanding at the Closing Date until the date falling 90 days after the Closing Date;
(vi) Financial Indebtedness of any person that becomes a member of the Group after the date Closing Date as the result of this Agreementan acquisition permitted under Clause 24.17 (Acquisitions and Investments), where the provided that:
(A) such Financial Indebtedness is incurred prior to existed at the date on which that company becomes time such person became a member of the Group if:
(A) the Financial Indebtedness and was not incurred created in contemplation anticipation of such acquisition and any refinancing, refunding, renewal or extension thereof, provided that the acquisition principal amount thereof is not increased above the principal amount outstanding at the time of that company;such acquisition; and
(B) the such Financial Indebtedness is repaid, prepaid or cancelled in full within [***] not the subject of that company becoming a any guarantee given by any other member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from of any member of the issuance Group incurred to finance an investment or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] acquisition permitted under Clause 24.17 (Acquisitions and Investments), provided that:
(A) the aggregate amount of such Financial Indebtedness does not exceed €25,000,000 (or its currency equivalent) at any such bond issued is unsecured;time; and
(B) such Financial Indebtedness is not the subject of any guarantee given by any member of the Group other than the borrower and the acquired entity;
(viii) Financial Indebtedness incurred within 270 days of the acquisition construction or improvement of fixed or capital assets provided that such bond ranks pari passu with, or subordinated Financial Indebtedness only relates to the Facilitiesassets so acquired, constructed or improved up to a maximum of €35,000,000 (or its currency equivalent) in each financial year;
(ix) Financial Indebtedness of any member of the Group incurred in connection with any import and export financing undertaken in the ordinary course of trading where subsidies are available which are advantageous to the relevant member of the Group;
(x) Junior Liabilities;
(xi) Financial Indebtedness that is discharged on the day on which it is incurred and arises pursuant to the operation of cash pooling, net balance or balance transfer arrangements made available to members of the Group; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viiixii) any other Financial Indebtedness not exceeding €25,000,000 (other than falling within paragraph (gor its currency equivalent) of in an aggregate principal amount for the definition of Financial Indebtedness) Group as a whole at any time, provided that any investment by way of equity or Financial Indebtedness referred contributed to in paragraphs (h) the Group by any Investor whether pursuant to this Clause 24.14 or (j) otherwise as permitted under this Agreement shall be contributed first by way of equity contribution or loan to the Company and thereafter by way of equity contribution or intercompany loan from the Company to another member of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies)Group.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (and the Company Borrower shall ensure procure that no other member of the Bank Group will) incur (shall), without the prior written consent of an Instructing Group incur, create or agree permit to incur) subsist or have outstanding any Financial Indebtedness.Indebtedness or enter into any agreement or arrangement whereby it is entitled to incur, create or permit to subsist any Financial Indebtedness other than in either case:
(a) Financial Indebtedness arising under or pursuant to the Finance Documents (including in respect of any outstanding Documentary Credit);
(b) Paragraph Existing Financial Indebtedness provided that the same shall be repaid immediately upon the making of the first Advance under this Agreement;
(ac) above does not apply toFinancial Indebtedness arising under the Triangle Notes, until such time that the Triangle Notes have been repaid in full pursuant to Clause 3.2 (Condition Subsequent relating to Diamond Sub-Group and Triangle Sub-Group);
(d) in relation to an Integrated Merger Event:
(i) any Target Group Financial Indebtedness existing as at the effective date of the Integrated Merger Event;
(ii) any Target Group Refinancing Indebtedness existing as at or immediately following the effective date of the Integrated Merger Event; and
(iii) any Post Merger Target Group Refinancing;
(e) Financial Indebtedness arising in respect of any guarantee given by the Borrower in respect of the obligations under the High Yield Notes or any High Yield Refinancing, provided that in each case, such guarantee is given on a subordinated unsecured basis and is subject to the terms of the HYD Intercreditor Agreement;
(f) Financial Indebtedness of any member of the Bank Group falling within, and permitted by Clause 25.3 (Loans and Guarantees);
(g) Financial Indebtedness arising under any Hedging Agreements permitted under Clause 25.13 (Limitations on Hedging);
(h) Existing Financial Indebtedness falling within paragraph (d) of the definition of Financial Indebtedness;
(i) Financial Indebtedness referred arising in respect of Existing Performance Bonds or any performance bond, guarantee, standby letter of credit or similar facility entered into in the ordinary course of business by any member of the Broadcast Group to in paragraph (b) the extent that cash is deposited as security for the obligations of Clause 23.6 (Loans and guarantees)such member of the Broadcast Group thereunder;
(iij) Financial Indebtedness arising under the Finance Documentsin relation to either an Asset Passthrough or a Funding Passthrough;
(iiik) any other than in connection with the Integrated Merger Event, Financial Indebtedness of a any company which became or becomes a member of the Bank Group after the date of this Agreement, where the such Financial Indebtedness is incurred arose prior to the date on which that such company became or becomes a member of the Group Bank Group; if:
(Ai) the such Financial Indebtedness was not incurred created in contemplation of the acquisition of that such company;
(Bii) the aggregate principal amount of all Financial Indebtedness falling within this paragraph (k) either (i) does not exceed £20 million (or its equivalent in other currencies) outstanding at any time or (ii) to the extent such Financial Indebtednesss does exceed £20 million, an amount equal to such excess is repaid, prepaid or cancelled in full within [***] of that repaid immediately upon such company becoming a member of the Bank Group;
(ivl) any Financial Indebtedness permitted under Clause 23.19 which constitutes Subordinated Funding provided that each Obligor that is a debtor in respect of Subordinated Funding shall (Hedging);
(vand the Borrower shall procure that each member of the Bank Group that is a debtor in respect of Subordinated Funding shall) any Financial Indebtedness procure that the relevant creditor of such Subordinated Funding, to the extent covered by not already a guaranteeparty at the relevant time, bond accedes to the Group Intercreditor Agreement or letter the HYD Intercreditor Agreement, as appropriate, in such capacity, upon the granting of credit issued under an Ancillary Facility;such Subordinated Funding; or
(vi) Permitted Existing Financial Indebtedness;
(viim) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (ia) to (vil) above, of any members of the Bank Group provided that the aggregate outstanding principal amount of which across the Group does not such Financial Indebtedness outstanding at any time does not exceed [***] £125 million (or its equivalent in another currency or other currencies) and further provided that in the case of any Financial Indebtedness constituted by an overdraft facility which operates on a gross/net basis, only the net amount of such facility shall count towards such aggregate amount, provided that notwithstanding any of the foregoing, the Borrower shall not grant any guarantee in respect of the Financial Indebtedness of any person other than as expressly provided in paragraphs (a), (d) and (e) of this Clause 25.4.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (and the Company each Unit Parent shall ensure that no other member of the Group its Unit will) incur (or agree to incur) or have allow to remain outstanding any Financial Indebtedness.
(b) Paragraph (aClause 31.16(a) above does not apply to:
(i) any Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)arising under any Finance Document;
(ii) any Financial Indebtedness arising under the Finance Documentsa Hedging Document;
(iii) any Financial Indebtedness of a company which becomes a member outstanding at any time incurred with the prior written consent of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the GroupMajority Lenders;
(iv) any Financial Indebtedness in respect of a derivative transaction permitted under Clause 23.19 clause 31.20 (Hedging);
(v) any Financial Indebtedness to the extent covered which arises under or in respect of a guarantee given by a member of the Group for the liabilities or obligations of an employer, director or officer of any member of the Group if the maximum actual and contingent liability under that guarantee, bond when aggregated with the amount of all loans and guarantee obligations referred to in clause 31.14(b)(vi) (Loans or letter of credit issued under an Ancillary Facilitycredit) does not exceed U.S.$500,000;
(vi) Permitted Existing any Financial IndebtednessIndebtedness which arises under or in respect of a guarantee entered into by any member of the Group in favour of a bank in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances of members of the Group (and provided that any net Financial Indebtedness of the Group as a result of those arrangements is permitted under clause 31.16(b)(xvi) below;
(vii) any Financial Indebtedness arising from which arises as a result of the issuance creation of any Security or issuances Quasi Security permitted under clause of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
clause 31.4(b)(ix) (A) any such bond issued is unsecuredNegative pledge);
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness owed by one member of the Group to another and permitted under clause 31.14 (Loans or credit);
(ix) a loan made by the Obligors’ Agent (or any subsidiary of the Obligors’ Agent, other than a member of the Group) to an Obligor, provided that it is subordinated in accordance with clause 31.13 (Subordination of inter-group loans);
(x) any Financial Indebtedness arising in respect of deferred consideration payable for an acquisition not prohibited by the terms of this Agreement;
(xi) any Financial Indebtedness incurred to finance the acquisition, construction or development of any machinery, equipment or rolling stock where (A) the recourse of the persons providing such financing is limited to the assets financed and the revenues to be generated by the operation of, or loss or damage to, such assets and (B) such Financial Indebtedness is not guaranteed by any Obligor and provided that the aggregate outstanding principal amount of such Financial Indebtedness across the Group does not at any time exceed U.S.$5,000,000 (or its equivalent in another currency or currencies);
(xii) until no later than the date of the first Utilisation of the Facilities (or, if later, to the extent covered by a Letter of Credit under this Agreement), any Financial Indebtedness under the Existing HSBC Facility (provided that the Existing HSBC Facility will cease to be permitted upon HSBC Bank PLC (or one of its Affiliates) becoming a Lender under this Agreement);
(xiii) any Financial Indebtedness arising under a finance or capital lease the aggregate principal amount of which when aggregated with the Financial Indebtedness under each other finance or capital lease entered into by members of the Group does not at any time exceed U.S.$5,000,000 (or its equivalent in another currency or currencies);
(xiv) any Financial Indebtedness arising in respect of the loan of up to $28,500,000 (or its equivalent in Thai Baht) from Bangkok Bank to Chromalloy Holding (Thailand) Ltd as described in the Funds Flow Memorandum;
(xv) any Financial Indebtedness owed to Bangkok Bank by Chromalloy (Thailand) Ltd. and existing on the date of this Agreement, up to a maximum aggregate amount of Baht 32,000,000; or
(xvi) any Financial Indebtedness (other than any Financial Indebtedness falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (iclauses 31.16(b)(i) to (vi31.16(b)(xv) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] U.S.$25,000,000 (or its equivalent in another currency or currencies).
Appears in 1 contract
Financial Indebtedness. (a) 28.8.1 No Obligor shall (and the Company shall ensure that no other member of the Group will) incur (or agree allow to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) 28.8.2 Sub-clause 28.8.1 above does not apply to:
(ia) any Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising incurred under the Finance Documents;
(iiib) any Existing Financial Indebtedness and any refinancing thereof (to the extent the aggregate amount outstanding is not increased as a result of a company which becomes a or pursuant to the refinancing);
(c) trade credit in the ordinary course of trading;
(d) Financial Indebtedness to the extent owed by one member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a another member of the Group;
(ive) Financial Indebtedness incurred by a Guarantor;
(f) any Financial Indebtedness permitted under not otherwise described in this sub-clause 28.8.2 to the extent it is (i) required to be applied in prepayment and cancellation of the Facilities pursuant to sub-clause 12.2.1 to 12.2.4 inclusive of Clause 23.19 12.2 (HedgingMandatory prepayment and Cancellation out of certain proceeds) or (ii) is applied in voluntary prepayment and cancellation of the Facilities pursuant to Clause 11 (Illegality, Voluntary Prepayment and Cancellation);
(vg) a derivative transaction entered into in the ordinary course of treasury operations and not for speculative purposes;
(h) Financial Indebtedness incurred with the consent of the Majority Lenders;
(i) any Financial Indebtedness of New River or its Subsidiaries existing at the time of the Acquisition (and any refinancing thereof (to the extent covered by that the aggregate amount outstanding is not increased as a guaranteeresult of or pursuant to the refinancing)) if that Financial Indebtedness was not created in contemplation of the Acquisition and (other than in relation to the New River Convertible Bond), bond or letter if that Financial Indebtedness is repaid within six months of credit issued under an Ancillary Facilitythe Acquisition;
(vij) any Permitted Existing Financial IndebtednessSecuritisation;
(viik) Financial Indebtedness arising from unsecured loan notes issued by any member of the issuance Group (including unsecured loan notes guaranteed by the Company and issued by another member of the Group) pursuant to a loan note alternative to an offer which complies with all of the following conditions: (i) the offer is an offer made by or issuances on behalf of one a member of the Group to acquire (inter alia) all the ordinary shares in a public company which are not owned by the offeror or more convertible by any member of the Group, or regular bonds a scheme of arrangement proposed by such a public company for a corresponding purpose; (ii) the offer is for cash consideration or includes a cash alternative; and (iii) the offer is subject to and complies with the UK Takeover Code or any law or regulation which replaces it provided that such loan notes will only fall within this sub-paragraph (j) to the extent that the aggregate principal amount outstanding of such loan notes at any time does not exceed an amount equal to the aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any of the Available Commitments of all the Revolving Facility Lenders under the Revolving Facility at such bond issued is unsecuredtime;
(Bl) any until such bond ranks pari passu with, time as (i) all amounts outstanding under or subordinated to the Facilities; and
in respect of Facility A and Facility B have been repaid in full and (Cii) the proceeds are applied Total Revolving Facility Commitments have been reduced to US$500,000,000 in accordance with Clause 9.5 subclause 12.2 (Capital Market Issue ProceedsMandatory prepayment and cancellation out of certain proceeds), subclause 11.2 (Voluntary Cancellation) and Clause 9.8 or subclause 11.3 (Application Voluntary Prepayment of Capital Market Issue ProceedsLoans) other Financial Indebtedness, the principal amount of which (when aggregated with the principal amount of any other Financial Indebtedness incurred by any member of the Group other than any permitted under paragraphs (a) to (k) above) does not, at any time, exceed US$200,000,000 (or its equivalent in another currency or currencies); and
(viiim) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs following (i) the repayment in full of all amounts outstanding under Facility A and Facility B and (ii) the reduction of the Total Revolving Facility Commitments to US$500,000,000 (viin accordance with subclause 12.2 (Mandatory prepayment and cancellation out of certain proceeds), subclause 11.2 (Voluntary Cancellation) aboveor subclause 11.3 (Voluntary Prepayment of Loans)) other Financial Indebtedness, the aggregate outstanding principal amount of which across (when aggregated with the principal amount of any other Financial Indebtedness incurred by any member of the Group other than any permitted under paragraphs (a) to (k) above) does not not, at any time time, exceed [***] US$500,000,000 (or its equivalent in another currency or currencies).
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that no other member of the Group will) incur (or agree permit to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred incurred pursuant to in paragraph (b) of Clause 23.6 (Loans and guarantees)any Finance Documents or Hedging Agreements;
(ii) subject to paragraph (c) below, any Financial Indebtedness arising under incurred pursuant to any derivative transactions entered into in the Finance Documentsordinary course of business and for non-speculative purposes only;
(iii) subject to paragraph (c) below, any Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the listed in Schedule 9 (Existing Financial Indebtedness is incurred prior to the date on which that company becomes a member and Security), or any refinancing of the Group if:
(A) the any such Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaidIndebtedness, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness except to the extent covered by a guarantee, bond or letter that the amount of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) that Financial Indebtedness arising from exceeds the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] facility limit stated in that Schedule, and provided that:
(A) no further Financial Indebtedness may be incurred in respect of the Promissory Note once it has been repaid pursuant to Clause 5.5(d) (First Utilisation); and
(B) no further Financial Indebtedness may be incurred under the instruments listed as items 3, 4 and 5 in Schedule 9 (Existing Financial Indebtedness and Security);
(iv) subject to paragraph (c) below, the Convertible Bonds, provided that:
(A) the Convertible Bonds are not secured by any such bond issued Security; and
(B) the maturity of the Convertible Bonds is unsecuredno earlier than three (3) years from Financial Close (and in any event no earlier than the Termination Date);
(v) subject to paragraph (c) below, any Financial Indebtedness incurred by SunPower Malaysia not already permitted in accordance with paragraph (iii) above, provided that:
(A) if and to the extent the relevant lenders to SunPower Malaysia are secured by any assets of the Group (which shall be limited to the assets of SunPower Malaysia), second ranking security in respect of those assets is granted in favour of the Offshore Security Agent (for the benefit of the Secured Parties (or, at the election of Xxxxxxx Xxxxx, the Secured Parties other than Xxxxxxx Sachs)), or an alternative arrangement for second ranking security is implemented, in each case on terms satisfactory to the Intercreditor Agent (acting on the instructions of the Instructing Parties) and the Company;
(B) all relevant Authorisations for such Financial Indebtedness to be incurred (and for the security described in paragraph (A) above to be granted) have been obtained;
(vi) any such bond ranks pari passu with, or subordinated Financial Indebtedness up to a maximum of USD 40,000,000 raised as part of:
(A) factoring arrangements in respect of any receivables of the FacilitiesGroup on recourse terms in the ordinary course of business; or
(B) advance payments by purchasers in the ordinary course of business for goods to be supplied by the Group; and
(Cvii) any Financial Indebtedness in respect of which the proceeds are applied in accordance with relevant member of the group is a debtor and which has been advanced by another member of the Group (to the extent permitted by Clause 9.5 19.11 (Capital Market Issue Proceeds) Loans and Clause 9.8 (Application of Capital Market Issue Proceedsadvances); and);
(viii) any Financial Indebtedness the principal amount of which (when aggregated with (i) the principal amount of any other than falling within paragraph (g) Financial Indebtedness incurred by any member of the definition of Financial Indebtedness) provided that Group except any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within permitted under paragraphs (i) to (vivii) above, above and (ii) the aggregate outstanding principal amount of which across loans or advances made pursuant to Clause 19.11(b)(ii) (Loans and advances)) does not exceed USD 25,000,000 (or its equivalent in another currency or currencies), and subject at all times to compliance with the Group does financial covenants set out at Clause 18.2 (Financial condition); and
(ix) any other Financial Indebtedness approved by the Intercreditor Agent.
(c) The aggregate principal amount of Financial Indebtedness outstanding or committed under:
(i) the Convertible Bonds;
(ii) the Facilities (including the Total Commitments whether or not utilised);
(iii) the Financial Indebtedness incurred pursuant to paragraph (b)(ii) above;
(iv) the Financial Indebtedness incurred pursuant to paragraph (b)(v) above;
(v) the trade finance facility in favour of SunPower Malaysia listed as item 2 in Schedule 9 (Existing Financial Indebtedness and Security); and
(vi) the operating leases listed as item 5 in Schedule 9 (Existing Financial Indebtedness and Security), shall not at any time exceed [***] USD 425,000,000 (or its equivalent in another currency or currencies).
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (and Neither the Company shall ensure that no other member Borrower, nor any of the Group willObligors, shall:
(i) incur (Incur, be a creditor in respect of or agree allow to incur) or have remain outstanding any Financial Indebtedness; or
(ii) pay or discharge (including by way of set-off or combination of accounts), or grant any guarantee, indemnity, bond, letter of credit or similar assurance of performance or against financial loss in support of, any obligations (including indebtedness) owed to it or any other person.
(b) Paragraph (a) above does not apply toto any Financial Indebtedness:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)arising under a Finance Document;
(ii) Financial Indebtedness (prior to the first Utilization Date) arising under the Finance DocumentsGold Purchase Agreement, on its terms as at the date of this Agreement;
(iii) any Financial Indebtedness of a company which becomes a member of (prior to the Group after first Utilization Date) arising under the Shoreline Promissory Note, on its terms as at the date of this Agreement, where the Financial Indebtedness is incurred prior ;
(iv) arising under any Permitted Equipment Financing;
(v) arising under intercompany loans to the date on which that company becomes a member of the Group if:any Obligor;
(vi) arising under any unsecured debt,
(A) the Financial Indebtedness was excluding any marked-to-market trading exposures, not incurred exceeding US$[redacted for commercially sensitive information] in contemplation of the acquisition of that companyaggregate;
(B) consisting of marked-to-market trading exposures not exceeding the Financial Indebtedness is repaid, prepaid or cancelled amounts specified in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial IndebtednessSection 21.38;
(vii) Financial Indebtedness arising from under any trade payables in the issuance ordinary course of business or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
less than ninety (A90) any such bond issued is unsecureddays outstanding;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness deposits and pledges of cash or securities (only to the extent such deposits or pledges are incurred or otherwise arise in the ordinary course of business and secure obligations not past due) securing (i) the performance of bids, tenders, leases, contracts (other than falling within paragraph for the payment of money) or statutory obligations or (gii) obligations on surety or appeal or performance bonds, including those to support or secure reclamation in accordance with applicable law, as required by any governmental agency to support or secure reclamation in accordance with applicable laws, and, in each case, only to the extent such deposits or pledges are incurred or otherwise arise in the ordinary course of business and secure obligations not past due;
(ix) unsecured indebtedness owed to any person providing property, casualty, liability, or other insurance to the Borrower or any Obligor, so long as the amount of such indebtedness is not in excess of $[redacted for commercially sensitive information], and shall be incurred only to defer the cost of such insurance for the year in which such indebtedness is incurred and such indebtedness is outstanding only during such year;
(x) owed by the Borrower to another Obligor; or
(xi) incurred or allowed to remain outstanding with the prior written consent of the definition of Financial Lender (together, Permitted Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies).
Appears in 1 contract
Samples: Secured Revolving Facility Agreement (Klondex Mines LTD)
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that Except as provided below, no other member of the Group will) may incur (or agree allow to incur) or have be outstanding any Financial Indebtedness.
(b) Paragraph Subject to paragraphs (c), (d) and (e) below, paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees)incurred under the Finance Documents;
(ii) any Financial Indebtedness arising incurred by an entity that is an Obligor under the Finance DocumentsGlobal Facility (including for the avoidance of doubt, any guarantees) under the USPP Documents (excluding any increases to such Financial Indebtedness after the date on which the USPP Documents are provided under Clause 4.1 (Conditions precedent documents));
(iii) any Financial Indebtedness of a company which becomes owed by one Obligor under the Global Facility to another Obligor under the Global Facility and the Pyramid Freight Debt provided that no such Financial Indebtedness may be owed by Pyramid Freight, South Africa (other than the Pyramid Freight Debt);
(iv) Financial Indebtedness owed by a member of the Group after which is not an Obligor under the date of this Agreement, where Global Facility to an Obligor under the Global Facility:
(A) to the extent such Financial Indebtedness is incurred prior listed in Part 1 of Schedule 11 (Existing Intercompany Indebtedness) including (I) any extension to the maturity date on of such Financial Indebtedness and (II) any such Financial Indebtedness to the extent that it is transferred or assigned by the entity to which such Financial Indebtedness is owed to another Obligor under the Global Facility (and excluding, for the avoidance of doubt, any refinancing of such Financial Indebtedness or any transfer or assignment by the entity owing such Financial Indebtedness); or
(B) in addition to Financial Indebtedness falling within paragraph (iv)(A) above, provided that company becomes the aggregate of any such Financial Indebtedness does not exceed US$5,000,000 (or its equivalent) at any time;
(v) Financial Indebtedness owed by a member of the Group if:
which is not an Obligor under the South African Facility to an Obligor under the South African Facility to the extent such Financial Indebtedness is listed in Part 2 of Schedule 11 (Existing Intercompany Indebtedness), including (A) any extension to the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
maturity date and (B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any such Financial Indebtedness to the extent covered that it is transferred or assigned by a guaranteethe entity to which such Financial Indebtedness is owed to another Obligor under the South African Facility (and excluding, bond for the avoidance of doubt, any refinancing of such Financial Indebtedness or letter of credit issued under an Ancillary Facilityany transfer or assignment by the entity owing such Financial Indebtedness);
(vi) Permitted Financial Indebtedness listed in Schedule 10 (Existing Indebtedness) in an amount not exceeding the amount set out in the columns headed "Overdraft Facilities (Local Currency)" and "Guarantees (Local Currency)" and any Financial Indebtedness refinancing Financial Indebtedness listed in Schedule 10 (Existing Indebtedness) including increases to the amount of such Financial Indebtedness by no more than 20 per cent. of the amount set out in the columns headed "Overdraft Facilities (Local Currency)" and "Guarantees (Local Currency)" in Schedule 10 (Existing Indebtedness);
(vii) any Financial Indebtedness arising from owed by one Obligor under the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecuredSouth African Facility to another Obligor under the South African Facility;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of any person acquired by a member of the definition Group which is incurred under arrangements in existence at the date of acquisition, but only provided that (A) the aggregate of any such Financial Indebtedness does not exceed US$25,000,000 (or its equivalent) at any time, and (B) any such Financial Indebtedness is repaid in full within six months from the date of acquisition;
(ix) any derivative transaction entered into with a Lender or to support any obligations of a member of the Group under a Capital Lease protecting against or benefiting from fluctuations in any rate or price entered into in the ordinary course of business;
(x) Financial Indebtedness incurred under any Capital Lease provided that the aggregate of any such Financial Indebtedness does not exceed US$40,000,000 (or its equivalent) at any time;
(xi) Financial Indebtedness under the Permitted Earnout Arrangements;
(xii) Financial Indebtedness under any earn out arrangements permitted under Clause 25.11(b)(vii) (Acquisitions);
(xiii) Financial Indebtedness owed by a member of the Group which is not an Obligor to another member of the Group which is also not an Obligor;
(xiv) Financial Indebtedness owed by a member of the Group that is an Obligor to a member of the Group that is not an Obligor to the extent such Financial Indebtedness is listed in Part 3 of Schedule 11 (excluding for the avoidance of doubt, any refinancing of such Financial Indebtedness or any transfer or assignment by either the entity owing such Financial Indebtedness or the entity providing such Financial Indebtedness); or
(xv) Financial Indebtedness owed by a member of the Group to a Lender or an Affiliate of a Lender or any other entity approved by the Lenders under the relevant Facility incurred under a Local Working Capital Facility provided that any Financial Indebtedness referred a Letter of Credit is issued under this Agreement to the entity providing that Local Working Capital Facility in paragraphs an amount not less than the maximum amount available under that Local Working Capital Facility.
(hc) or (j) of the definition The aggregate amount of Financial Indebtedness shall only be counted once for this purposeincurred or owed by members of the South African Group (and by Pyramid Freight, South Africa to the extent that such amount is owed to an entity located in South Africa) not falling within under paragraphs (ib)(vi) and (viii) to (vixii) above(inclusive) and (xv) above (excluding, for the aggregate outstanding principal avoidance of doubt the Pyramid Freight Debt or any amounts owing under the Pyramid Freight Loan Agreements) when aggregated with the amount of which across owing under or in connection with the Group does South African Facility shall not at any time exceed [***] South African Rand 1,000,000,000 (or its equivalent in another currency or currenciesequivalent).
(d) The aggregate amount of Financial Indebtedness in respect of which interest or equivalent payments are payable and incurred or owed by members of the South African Group under paragraphs (b)(vi) and (viii) to (xii) (inclusive) and (xv) (excluding, for the avoidance of doubt the Pyramid Freight Debt or any amounts owing under the Pyramid Freight Loan Agreements) when aggregated with the amount owing under or in connection with the South African Facility shall not at any time exceed South African Rand 650,000,000 (or its equivalent).
(e) The aggregate amount of Financial Indebtedness incurred or owed by Sisonke Partnership under paragraph (b) above shall be limited to the aggregate of (i) the amount owing by Sisonke Partnership to Pyramid Freight, South Africa listed in Part 3 of Schedule 11 (Existing Intercompany Indebtedness); and (ii) any Financial Indebtedness incurred under a Local Working Capital Facility owed by Sisonke Partnership to a Lender or an Affiliate of a Lender or any other entity approved by the South African Lenders provided that a Letter of Credit is issued under this Agreement to the entity providing that Local Working Capital Facility in an amount not less than the maximum amount available under that Local Working Capital Facility.
Appears in 1 contract
Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that no other member of the Group will) incur (or agree allow to incur) or have remain outstanding any Financial Indebtedness.
(b) Paragraph , other than: (a) above does not apply to:
(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising under the Finance Documents;
; (iiib) to the extent covered by a letter of credit, guarantee or indemnity issued under an Ancillary Facility (c) Financial Indebtedness arising under the Bilateral Facilities, provided that the Bilateral Facility Limit is not exceeded and to the extent that a Bilateral Facility is not provided by an Original Lender (or such Original Lender’s Affiliate) (a Third Party Bilateral Facility) the aggregate of such Financial Indebtedness under such Third Party Bilateral Facilities does not exceed the Third Party Bilateral Facility Limit; (d) Financial Indebtedness arising under a Permitted Shareholder Loan provided such Permitted Shareholder Loan is the subject of a Subordination Deed; (e) Financial Indebtedness arising under the Permitted ID Facilities provided the Obligors are in compliance with each of the conditions relating to the Permitted ID Facilities as set out in Clause 23.18 (Permitted ID Facilities); (f) Financial Indebtedness arising under a foreign exchange transaction for spot or forward delivery entered into in connection with protection against fluctuation in currency rates where that foreign exchange exposure arises in the ordinary course of trade (but not a foreign exchange transaction for investment or speculative purposes); (g) Financial Indebtedness arising under any BACs or similar payment facility utilised by a member of the Group in the ordinary course of its business; (h) Financial Indebtedness arising under any cash pooling, netting, set-off or other cash management arrangements entered into by any member of the Group or any other Obligor in the ordinary course of trading; (i) any Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:
(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 23.16 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond Loans or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceedscredit); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) the Company certifies (to the best of its knowledge and belief by reference to the facts and circumstances known to the Company at that time) to the Agent in a certificate to be delivered by no later than the date of the definition incurrence of such Financial Indebtedness shall only be counted once for this purposethat, Leverage (recalculated on a pro forma basis) as if the relevant Financial Indebtedness was incurred on the first day of the Relevant Period expiring on the most recent Quarter Date as at the last Quarter Date would not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies).have exceeded 3.00:1
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Financial Indebtedness. (a) No TCN Group Obligor shall (and the Company TCN shall ensure procure that no other member of the TCN Group willshall) incur (incur, create or agree permit to incur) subsist or have outstanding any Financial Indebtedness.Indebtedness or enter into any agreement or arrangement whereby it is entitled to incur, create or permit to subsist any Financial Indebtedness other than in either case:
(a) Financial Indebtedness arising under or pursuant to the Finance Documents;
(b) Paragraph Existing Financial Indebtedness, provided that all Existing Financial Indebtedness described in Section A of Part 3 of Schedule 10 (aExisting Financial Indebtedness) above shall be repaid immediately upon the making of the first Advance under this Agreement;
(c) in relation to an Integrated Merger Event:
(i) any Target Group Financial Indebtedness existing as at the effective date of the Integrated Merger Event;
(ii) any Target Group Refinancing Indebtedness existing as at or immediately following the effective date of the Integrated Merger Event; and
(iii) any Post Merger Target Group Refinancing;
(d) Financial Indebtedness of any member of the TCN Group falling within, and permitted by Clause 24.3 (Loans and Guarantees);
(e) Financial Indebtedness arising under any Hedging Agreements permitted under Clause 24.12 (Limitations on Hedging);
(f) Financial Indebtedness arising in respect of any guarantee given by TCN or any other member of the TCN Group in respect of the relevant borrower’s obligations under any Second Lien Refinancing or any other Telewest Global Debt, provided that, except at the option of TCN in the case of a Second Lien Refinancing, any such guarantee is given on a subordinated unsecured basis and is subject to the terms of a TGD Intercreditor Agreement, and provided further that if and to the extent required by Clause 11.5 (Repayment from Debt Proceeds), the Net Proceeds of such Telewest Global Debt are applied in the prepayment of the Outstandings;
(g) Financial Indebtedness (i) arising under Finance Leases or (ii) provided or arranged by a supplier (or its Affiliates) of assets (including equipment) and/or related services to the TCN Group (the “Vendor Financing Arrangements”), to the extent that such Finance Leases and/or Vendor Financing Arrangements (x) comprise Finance Leases and/or Vendor Financing Arrangements which were outstanding on the Closing Date, details of which are set out in Schedule 15 (Vendor Financing Arrangements) or any refinancing or rollover thereof, or (y) comprise Finance Leases and/or Vendor Financing Arrangements entered into after the Closing Date, in the case of clause (x) and (y) in an aggregate principal amount which, together with the aggregate principal amount of all outstanding Financial Indebtedness incurred under paragraph (m) below, does not apply to:at any time exceed £125,000,000 plus the principal amount of such Finance Leases and Vendor Financing Arrangements outstanding on the Closing Date; provided in each case that the relevant lessor or provider of Vendor Financing Arrangements does not have the benefit of any Encumbrance other than over the assets the subject of such Vendor Financing Arrangements and/or Finance Leases;
(h) Financial Indebtedness relating to deferral of PAYE taxes with the agreement of the Inland Revenue by any member of the TCN Group;
(i) Financial Indebtedness referred arising in respect of Existing Performance Bonds or any performance bond, guarantee, standby letter of credit or similar facility entered into by any member of the TCN Group to in paragraph (b) the extent that cash is deposited as security for the obligations of Clause 23.6 (Loans and guarantees)such member of the TCN Group thereunder;
(iij) Financial Indebtedness arising under other than in connection with the Finance Documents;
(iii) any Integrated Merger Event, Financial Indebtedness of a any company which became or becomes a member of the TCN Group after the date of this Agreement, where the such Financial Indebtedness is incurred arose prior to the date on which that such company became or becomes a member of the Group TCN Group; if:
(Ai) the such Financial Indebtedness was not incurred created in contemplation of the acquisition of that such company;; and
(ii) the aggregate principal amount of all Financial Indebtedness falling within this paragraph (j) either (A) does not exceed £12,000,000 (or its equivalent in other currencies) outstanding at any time or (B) to the extent such Financial Indebtedness does exceed £12,000,000, an amount equal to such excess is repaid, prepaid or cancelled in full within [***] of that repaid immediately upon such company becoming a member of the TCN Group;
(ivk) any Financial Indebtedness permitted under Clause 23.19 (Hedging)which constitutes Subordinated Funding provided that each member of the TCN Group that is a debtor in respect of Subordinated Funding shall procure that the relevant creditor of such Subordinated Funding, to the extent not already a party at the relevant time, accedes to the Principal Intercreditor Deed or any applicable TGD Intercreditor Agreement, as appropriate and in such capacity, upon the granting of such Subordinated Funding;
(vl) the TCN Notes, the Second Lien Facility and any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;Second Lien Refinancing; or
(vi) Permitted Existing Financial Indebtedness;
(viim) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any such bond issued is unsecured;
(B) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and
(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (ia) to (vil) above, of any member of the TCN Group provided that the aggregate amount of such Financial Indebtedness outstanding at any time, when taken together with the aggregate outstanding principal amount in respect of which across Finance Leases and Vendor Financing Arrangements in excess of the Group aggregate amount thereof outstanding as at the Closing Date, does not at any time exceed [***] £125,000,000 (or its equivalent in another currency or other currencies)) and the aggregate amount of any Financial Indebtedness, the proceeds of which are not required to be applied in prepayment of outstanding amounts pursuant to paragraph (a) of Clause 11.5 (Repayment from Debt Proceeds) by virtue of the exception in paragraph (b)(viii) of such Clause; and further provided that in the case of any Financial Indebtedness constituted by an overdraft facility which operates on a gross/net basis, only the net amount of such facility shall count towards such aggregate amount.
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Financial Indebtedness. (a) No Obligor shall (and the Company shall ensure that Except as provided below, no other member of the Group will) may incur (or agree to incur) or have outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) any Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees);
(ii) Financial Indebtedness arising incurred under the Finance Documents;
(iiiii) any Capitalised Lease Obligations and Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the Parent and its Subsidiaries representing purchase money Financial Indebtedness is incurred prior secured by liens permitted pursuant to the date on which that company becomes a member of the Group if:
Clause 18.5(b)(xi) (A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;
(B) the Financial Indebtedness is repaidNegative pledge), prepaid or cancelled in full within [***] of that company becoming a member of the Group;
(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);
(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;
(vi) Permitted Existing Financial Indebtedness;
(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:
(A) any all such bond issued is unsecured;
(BCapitalised Lease Obligations are permitted under Clause 17.3(d) any such bond ranks pari passu with, or subordinated to the Facilities; and
(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue ProceedsExpenditures); and
(viiiB) the sum of (x) the aggregate Capitalised Lease Obligations outstanding at any time plus (y) the aggregate principal amount of such purchase money Financial Indebtedness outstanding at such time shall not exceed US$20,000,000;
(iii) Financial Indebtedness of the credit parties incurred pursuant to the EnerSys Capital Credit Agreement and the other than falling within paragraph credit documents under the EnerSys Capital Credit Agreement;
(gA) Existing Indebtedness outstanding on the Utilisation Date and listed on part A of schedule IV of the EnerSys Capital Credit Agreement, without giving effect to any subsequent extension, renewal or refinancing thereof except to the extent expressly permitted by part A of schedule IV the EnerSys Capital Credit Agreement (or otherwise permitted by Subclause (xvi) below); provided that any intercompany Financial Indebtedness among Holdings or any of its Subsidiaries set forth on part A of schedule IV of the EnerSys Capital Credit Agreement shall be subject to the requirements applicable to Intercompany Loans as set forth in the proviso appearing in section 9.05(vi) of the definition of Financial Indebtedness) provided that any EnerSys Capital Credit Agreement as if such intercompany Financial Indebtedness referred to in paragraphs were an Intercompany Loan; and
(hB) or (j) Financial Indebtedness of Foreign Subsidiaries of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, Parent under the Existing Overdraft Facilities in an aggregate outstanding principal amount of which across the Group does not to exceed at any time exceed [***] the aggregate commitments under such Existing Overdraft Facilities as set forth on part B of schedule IV of the EnerSys Capital Credit Agreement, together with any extension, renewal or refinancing of any Existing Overdraft Facility (or extension, renewal or refinancing thereof permitted hereby) to the extent such extension, renewal or refinancing does not:
I. increase the amount of available commitments (or maximum Financial Indebtedness permitted to be incurred) under the respective Existing Overdraft Facility (or extension, renewal or refinancing thereof permitted hereby) to be so extended, renewed or refinanced; or
II. add guarantors, obligors or security from that which applied to such Financial Indebtedness being extended, renewed or refinanced;
(v) Financial Indebtedness under Interest Rate Protection Agreements entered into to protect the Parent against fluctuations in interest rates in respect of Financial Indebtedness otherwise permitted under the EnerSys Capital Credit Agreement;
(vi) (A) Financial Indebtedness of Holdings and its equivalent in another currency or currencies).Subsidiaries (other than the Receivables Entity) constituting Intercompany Loans permitted by section 9.05(vi) of the EnerSys Capital Credit Agreement; and
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Samples: Credit Facility Agreement (EnerSys)
